John Theodore Geiger a/k/a "Teddy Geiger" v. Premium Design
Claim Number: FA0512000604896
Complainant is John Theodore Geiger a/k/a "Teddy Geiger" (“Complainant”), represented by Theodore P. Harris, of Grubman Indursky, P.C., Carnegie Hall Tower, 152 West 57th Street, Fl 31, New York, NY 10019. Respondent is Premium Design (“Respondent”), P.O. Box 66, Dalbo, MN 55017.
The domain names at issue are <teddygeiger.com> and <teddygeiger.net>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 5, 2005; the National Arbitration Forum received a hard copy of the Complaint on December 6, 2005.
On December 5, 2005, Intercosmos Media Group, Inc. d/b/a Directnic.Com confirmed by e-mail to the National Arbitration Forum that the <teddygeiger.com> and <teddygeiger.net> domain names are registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com and that Respondent is the current registrant of the names. Intercosmos Media Group, Inc. d/b/a Directnic.Com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.Com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 13, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 3, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@teddygeiger.com and postmaster@teddygeiger.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 6, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <teddygeiger.com> and <teddygeiger.net> domain names are identical to Complainant’s TEDDY GEIGER mark.
2. Respondent does not have any rights or legitimate interests in the <teddygeiger.com> and <teddygeiger.net> domain names.
3. Respondent registered and used the <teddygeiger.com> and <teddygeiger.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, John Theodore Geiger a/k/a Teddy Geiger, who is a minor, is a professional musician, performer, and actor who has performed at concerts throughout the United States, has appeared on national television, and has released records nationally, all under the name “Teddy Geiger.” Complainant also uses the “Teddy Geiger” name on merchandise.
Complainant entered into a personal management agreement with Gregory Sheldon, a principal of Respondent, Premium Design. Gregory Sheldon was also a principal of Maximus Inc., a company that Complainant asked to register the <teddygeiger.com> and <teddygeiger.net> domain names. Respondent registered the <teddygeiger.com> and <teddygeiger.net> domain names on September 7, 2004.
On November 12, 2004, Complainant terminated the services of Maximus, Inc. and Gregory Sheldon. Complainant asserts that Respondent is demanding $15,000 to transfer the domain name registrations to Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant has not averred that it has trademark rights in its name: it claims neither a trademark registration for or common law rights in the TEDDY GEIGER mark. In section 4(c) of the Complaint, where Rule 3(b)(viii) requires Complainant to specify the trade or service marks upon which the complaint is based, Complainant stated the following:
This Complaint is based on the wrongful control by Respondent of the teddygeiger.com and teddygeiger.net domain names. The Complainant, who is a minor, is a professional musician, performer and actor who has performed at concerts throughout the United States, has appeared on national television and has released records nationally, all under the name “Teddy Geiger”. Complainant uses his name, Teddy Geiger, on merchandise (e.g., T-shirts, etc.).
Complainant also does not state that “Teddy Geiger” has a
source indicating function: in section 5(a) of the Complaint, it asserts that the <teddygeiger.com> and
<teddygeiger.net> domain names are “exact representations of
[Complainant’s] professional name,” implying that “Teddy Geiger” refers to a
person and not a source of goods or services.
Therefore, the Panel finds that Complainant has not established that it
has rights in a mark pursuant to Policy ¶ 4(a)(i). See TotalFinaElf E&P USA, Inc. v. Farnes, FA 117028 (Nat.
Arb. Forum Sept. 16, 2002) (“In order to bring a claim under the Policy,
Complainant must first establish a prima facie case. Complainant’s
[initial burden] is to provide proof of valid, subsisting rights in a mark that
is similar or identical to the domain name in question.”); see also McCarthy
on Trademarks and Unfair Competition, § 13:1 (4th ed. 2002) (stating that
the basic rules pertaining to the protection of personal names require actual
proof of secondary meaning for protection).
Because Complainant has failed to establish rights
and legitimate interests pursuant to Policy ¶ 4(a)(i), the Panel need not
continue with its analysis.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Honorable Karl V. Fink (Ret.), Panelist
Dated: January 17, 2006
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