Elin Nordegren v. NLWH.com c/o Domain Administrator
Claim Number: FA0609000809741
Complainant is Elin Nordegren (“Complainant”), represented by Mark Steinberg, of IMG WorldWide, Inc., IMG Center Suite 100, 1360 East 9th Street, Cleveland, OH 44114-1782. Respondent is NLWH.com c/o Domain Administrator (“Respondent”), 4155 9th Ave., New York, NY 10034.
The domain name at issue is <elinnordegren.org>, registered with eNom, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 29, 2006; the National Arbitration Forum received a hard copy of the Complaint on October 3, 2006.
On October 3, 2006, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <elinnordegren.org> 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 October 6, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 26, 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@elinnordegren.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 2, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <elinnordegren.org> domain name is identical to Complainant’s ELIN NORDEGREN mark.
2. Respondent does not have any rights or legitimate interests in the <elinnordegren.org> domain name.
3. Respondent registered and used the <elinnordegren.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Elin Nordegren, is a former professional model
and the wife of Tiger Woods, a professional golfer who is one of the best-known
sports personalities in the world. Complainant has used the ELIN NORDEGREN mark continuously
throughout her life. Complainant has
been known to the world since she began modeling in her teenage years, and her fame
has grown greatly since she began her relationship with Mr. Woods.
Respondent registered the <elinnordegren.org> domain name on November 25, 2005. Respondent’s disputed domain name resolves to a website that displays information and photographs of Complainant. When an Internet user clicks on any of these photographs, they are redirected to websites featuring adult-oriented content.
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.
The Panel finds that Complainant is not required to own a trademark registration in order to establish rights in the ELIN NORDEGREN mark pursuant to Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (“The Policy does not require that a trademark be registered by a governmental authority for such rights to exist.”).
The Panel further finds that Complainant has established
common law rights in the ELIN NORDEGREN mark pursuant to Policy ¶ 4(a)(i)
through her continuous and lifetime use of the mark as her name. Complainant used the mark when working as a
professional model, and has become a public figure through her relationship
with Tiger Woods under the ELIN NORDEGREN mark. The Panel finds that Complainant has demonstrated secondary
meaning sufficient to establish common law rights in her name and mark. See Roberts v. Boyd, D2000-0210 (WIPO May 29, 2000) (finding that
trademark registration was not necessary and that the name “Julia Roberts” has
sufficient secondary association with the complainant that common law trademark
rights exist); 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 …”).
Respondent’s <elinnordegren.org> domain name is identical to Complainant’s ELIN NORDEGREN mark as it contains the entire mark with the addition of a generic top-level domain (“gTLD”). The mere addition of a gTLD to Complainant’s mark does not sufficiently distinguish the disputed domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) ( “[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also Koninklijke Philips Elecs. NV v. Goktas, D2000-1638 (WIPO Feb. 8, 2001) (finding that the domain name <philips.org> is identical to the complainant’s PHILIPS mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the <elinnordegren.org> domain name. Complainant must first make a prima facie case in support of its allegations, and the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests).
Respondent’s failure to answer the Complaint raises a presumption that Respondent has no rights or legitimate interests in the disputed domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant asserts that Respondent is not authorized to use Complainant’s ELIN NORDEGREN mark and that Respondent is not associated with Complainant in any way. Furthermore, Respondent’s WHOIS information does not suggest that Respondent is commonly known by the <elinnordegren.org> domain name, and there is no evidence in the record to suggest that Respondent is or has ever been known by the disputed domain name. The Panel accordingly finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent is using the <elinnordegren.org> domain name to redirect Internet users to websites featuring adult-oriented content. In Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002), the panel found that use of the <targetstore.net> domain name to redirect Internet users to a pornographic website did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii). See Am. Online, Inc. v. Bates, FA 192595 (Nat. Arb. Forum Oct. 7, 2003) (“Attempts to commercially benefit from a domain name that is confusingly similar to another's mark by linking the domain name to an adult-oriented website [is] evidence that the registrant lacks rights or legitimate interests in the domain name.”). The Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to adult-oriented websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been
satisfied.
Respondent has registered and is using the <elinnordegren.org> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) as the disputed domain name contains links that redirect Internet users to adult-oriented material. Such use of the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).
The Panel further infers that Respondent is using the
disputed domain name for its own commercial benefit. Respondent’s <elinnordegren.org> domain name is
capable of creating a likelihood of confusion as to the source and affiliation
of Complainant to the disputed domain name.
Such use of Complainant’s mark for the commercial gain of Respondent is
bad faith registration and use under Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore,
FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent
registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)
because the respondent was using the confusingly similar domain name to attract
Internet users to its commercial website); see
also Perot Sys. Corp. v.
Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith
where the domain name in question is obviously connected with the complainant’s
well-known marks, thus creating a likelihood of confusion strictly for
commercial gain).
The Panel finds that
Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <elinnordegren.org> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: November 13, 2006
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