Kendra Wilkinson v. Kendra Wilkinson
Claim Number: FA0601000621110
Complainant is Kendra Wilkinson (“Complainant”), represented by Lawrence V. Molnar, of CMG Worldwide, 10500 Crosspoint Blvd., Indianapolis, IN 46256. Respondent is Kendra Wilkinson (“Respondent”), 13521 Whitewater Drive, San Diego, CA 92064.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <kendrawilkinson.com>, registered with Enom, Inc.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 6, 2006; the National Arbitration Forum received a hard copy of the Complaint on January 6, 2006.
On January 6, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <kendrawilkinson.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 January 13, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 2, 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@kendrawilkinson.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 8, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <kendrawilkinson.com> domain name is identical to Complainant’s KENDRA WILKINSON mark.
2. Respondent does not have any rights or legitimate interests in the <kendrawilkinson.com> domain name.
3. Respondent registered and used the <kendrawilkinson.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Kendra Wilkinson, is a world famous model and actress that has starred in such publications as Super Streetbike, Hot Boat, and Playboy magazine, the reality television show The Girls Next Door and is currently featured on <onemodelplace.com>. As a result, Complainant’s name and likeness have been used prominently in commerce since February 2004.
Respondent registered the <kendrawilkinson.com> domain name on March 10, 2004. Respondent’s domain name resolves to a holding page featuring a “coming soon” notice.
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 asserts common law rights in the KENDRA WILKINSON mark through the continuous use of the mark in connection with a modeling and acting career that began in February 2004. Through the wide distribution of Complainant’s name and image along with the continuous commercial use of the name , the Panel finds that Complainant has sufficiently established common law rights in the KENDRA WILKINSON mark pursuant to Policy ¶ 4(a)(i). See Sade v. Quantum Computer Servs., Inc., D2000-0794 (WIPO Sept. 26, 2000) (finding that although the complainant did not register the word “SADE” either as a trademark or as a service mark the complainant adapted the word “SADE” as the complainant’s stage-name and as a trademark and service mark and therefore the complainant established that it had common law rights in the mark); see also Estate of Tupac Shakur v. Shakur Info Page, AF-0346 (eResolution Sept. 28, 2000) (“A person may acquire such a reputation in his or her own name as to give rise to trademark rights in that name at common law …”).
Complainant contends that Respondent’s <kendrawilkinson.com> domain name is identical to Complainant’s common law mark. Respondent’s disputed domain name features Complainant’s entire KENDRA WILKINSON mark and simply adds the generic top level domain “.com.” The Panel finds that the addition of generic top level domains such as “.com” is irrelevant in determining whether a domain name is identical to a mark pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <kendrawilkinson.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Due to Respondent’s failure to respond to the Complaint, the Panel infers that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Complainant contends that Respondent’s disputed domain name resolves to an inactive website that features a “coming soon” announcement. Given that Respondent has yet to develop an active website with a legitmate use in two years of ownership, the Panel finds that such passive holding is evidence of Respondent’s lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). See Am. Online, Inc. v. Kloszewski, FA 204148 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent's passive holding of the <aolfact.com> domain name for over six months is evidence that Respondent lacks rights and legitimate interests in the domain name.”); see also Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the respondent has advanced no basis on which the panel could conclude that it has a right or legitimate interest in the domain names, and no commercial use of the domain names has been established).
Furthermore, Complainant contends that Respondent appears to be commonly known by the <kendrawilkinson.com> domain name, Respondent is neither commonly known by the name nor licensed to register domain names featuring the KENDRA WILKINSON mark. As a result, the Panel finds that, although Respondent appears to be commonly known by the <kendrawilkinson.com> domain name, in the absence of affirmative evidence showing otherwise, Respondent is not commonly known by the disputed domain name for purposes of Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (“[O]ther than Respondent’s infringing use of the ULTIMATE ELECTRONICS mark on its web page and in its domain name . . . , there is no evidence that Respondent is commonly known by the <ultimateelectronics.net> domain name pursuant to Policy ¶ 4(c)(ii), or that there is any other entity besides Complainant authorized to trade as ULTIMATE ELECTRONICS.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Finally Complainant contends that any intended use of the kendrawilkinson.com> domain name would result in confusion among Internet users as to Complainant’s sponsorship of or affiliation with Respondent’s resulting website. The Panel finds that such circumstances justify a finding of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose); see also Phat Fashions, LLC v. Kruger, FA 96193 (Nat. Arb. Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <kendrawilkinson.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: February 22, 2006
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