Mark Rivkin v. American European Marketing
Claim Number: FA0604000692663
PARTIES
Complainant is Mark Rivkin, 97 Ardwold Gate, Toronto, ON M5R 2W1, Canada, (“Complainant”). Respondent is American European Marketing (“Respondent”), represented by Ari Goldberger, of ESQwire.com Law Firm, 35 Cameo Drive, Cherry Hill, NJ 08003, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <markrivkin.com>, <andrewrivkin.com>, <harveysolursh.com>, <jennysolursh.com>, <markrivkinsucks.com>, <andrewrivkinsucks.com>, <harveysolurshsucks.com> and <jennysolurshsucks.com>, registered with Domainbank.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on April 27, 2006; the National Arbitration Forum received a
hard copy of the Complaint on April 27, 2006.
On April 27, 2006, Domainbank confirmed by e-mail to the National
Arbitration Forum that the <markrivkin.com>, <andrewrivkin.com>, <harveysolursh.com> and <jennysolursh.com> domain names
are registered with Domainbank and that the Respondent is the current
registrant of the names. Domainbank has
verified that Respondent is bound by the Domainbank 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 May 8, 2006, Domainbank confirmed by e-mail to the National
Arbitration Forum that the <markrivkinsucks.com>, <andrewrivkinsucks.com>, <harveysolurshsucks.com> and <jennysolurshsucks.com> domain names are registered with Domainbank
and that the Respondent is the current registrant of the names. Domainbank has verified that Respondent is
bound by the Domainbank registration agreement and has thereby agreed to
resolve domain-name disputes brought by third parties in accordance with the
Policy.
On May 9, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of May 30, 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@markrivkin.com, postmaster@andrewrivkin.com, postmaster@harveysolursh.com,
postmaster@jennysolursh.com, postmaster@markrivkinsucks.com, postmaster@andrewrivkinsucks.com,
postmaster@harveysolurshsucks.com and postmaster@jennysolurshsucks.com by
e-mail.
A timely Response was received and determined to be complete on June 9,
2006.
On June 15, 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.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The eight domain names at issue are all the personal names of four
individuals and merely add a generic top-level domain (‘gTLD”). All of the sites
resolve to the same website containing derogatory material offensive to the
Complainants. Thus the domain names
are:
(1) Identical to the Complainants’ names.
(2) Respondent has no rights or legitimate
interest in the names.
(3) Respondent has acted in Bad Faith.
B. Respondent
Complainant fails to allege that he has trademark rights to any of the
terms incorporated in the disputed domain names. Complainant only alleges that
they are personal names which Complainant would like to have for its own use.
Complainant Mark Rivkin has not provided evidence that he has any rights or
interest in the other names. Further, Respondent is using the web sites to
protest against the four individuals for gripes he has with the organization
they operate. Respondent is using the sites to comment on and criticize
Complainant’s business practices as the result of a bitter dispute. In so
doing, Respondent claims it is exercising its free speech rights. Accordingly, Respondent maintains it has a
legitimate interest in and is making fair, noncommercial use of the names.
FINDINGS
Complainant has brought a Complaint on behalf
of himself and three other individuals, but the other individuals have not
joined as parties to this suit and Complainant has not asserted that it has an
ownership interest in any of the marks reflecting the other individuals’
personal names. Under Rule 3(a),
“[a]ny person or entity may initiate an administrative proceeding by submitting
a complaint.” The language of the Rule
implies that Complainant should consist of a singular entity. Hence, multiple Complainants that submit a
single Complaint must demonstrate a link between the two entities such as a
relationship involving a license, a partnership or an affiliation, which would
establish the reason for the parties bringing the Complaint as one entity. Because Complainant has failed to show any
link between itself and the other interested parties, the Panel finds that Complainant lacks standing to bring this claim under
the Policy for all of the disputed domain names. See CMG
Worldwide, Inc. v. Pitanguy Plastic Surgical Clinic, FA 155888 (Nat. Arb.
Forum June 3, 2003) (holding that as the complainant provided no evidence to
the panel that it has any arrangement to represent the actual trademark holder,
or that any rights in the relevant trademark had been assigned or licensed to
the complainant, the complainant did not have standing to bring a claim under
the UDRP); see also TM Acquisition Corp. v. S.E.A. Domains, FA 156800
(Nat. Arb. Forum June 12, 2003) (dismissing the complainant’s claim against the
respondent with respect to domain names that were identical to the names of the
complainant’s in-house attorney and Chief Executive Officer, as the complainant
did not have standing to bring those claims under the UDRP). Under these circumstances, it is appropriate
to dismiss the Complaint without prejudice, letting Complainant re-file
establishing his right to act on behalf of all the parties or for re-filing by all four parties individually.
DECISION
The Complaint is dismissed without
prejudice. Complainant, with proper
authorization, or Complainants individually, are allowed to re-file if they so
desire.
Louis E. Condon, Panelist
Dated: June 26, 2006
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