Kevin Spacey v John Zuccarini
Claim Number: FA0103000096937
Complainant is Kevin Spacey, USA ("Complainant") represented by Jennifer S. Fryhling, of Manatt, Phelps & Phillips LLP. Respondent is John Zuccarini, Nassau, B.F. ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kevinspacy.com> registered with CSL GMBH.
The undersigned certifies that he or she has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
Judge Ralph Yachnin, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 26, 2001; the Forum received a hard copy of the Complaint on March 26, 2001.
On April 4, 2001, CSL GMBH confirmed by e-mail to the Forum that the domain name <kevinspacy.com> is registered with CSL GMBH and that Respondent is the current registrant of the name. CSL GMBH has verified that Respondent is bound by the CSL GMBH registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís Uniform Domain Name Dispute Resolution Policy (the "Policy").
On April 4, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 24, 2001 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 Respondentís registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On May 2, 2001, pursuant to Complainantís request to have the dispute decided by a single-member Panel, the Forum appointed Ralph Yachnin, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 Forumís 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.
Complainant is entitled to relief because: (i) the <kevinspacy.com> domain name is identical or confusingly similar to Complainantís name and trademark; (ii) Respondent has no rights to or legitimate interests in the domain name; and (iii) the domain name was registered and is being used in bad faith.
Respondent did not submit a Response to this matter.
Complainant has received critical acclaim in the United States and internationally for his performances in numerous motion pictures and stage productions. His motion picture credits are many, including Pay It Forward, Ordinary Decent Criminal, Big Kahuna, American Beauty, Bugís Life, Hurlyburly, Negotiator, Midnight in the Garden of Good and Evil, L.A. Confidential, Time to Kill, Looking for Richard, Seven, Usual Suspects, Outbreak, Iron Will, The Ref, Swimming with Sharks, Glengarry Glen Ross, Consenting Adults, Show of Force, Dad, Working Girl, Heartburn, and several other films.
Complainant is also recognized as a distinguished stage actor. In 1991, he received widespread notoriety when he won the Tony award and the Drama Desk award for best featured actor in the Broadway play Lost in Yonkers. In 1999, he was nominated for the Tony award for his performance in the Broadway production of The Iceman Cometh. He also received the best actor award for this performance from the Evening Standard Theatre, Barclays Theatre, and the Laurence Olivier Award.
Complainant has longstanding common law trademark rights in his name, which has acquired secondary meaning throughout the United States and internationally. Complainant has also filed trademark and service mark applications on September 13, 2000 with the United States Patent and Trademark Office featuring the mark KEVIN SPACEY for use in connection with a wide range of goods and services, including entertainment services.
Respondent is a well known cybersquatter and has "admitted that he registeredÖthousands of other domain names because they are confusingly similar to othersí famous marks and personal namesÖin an effort to divert Internet traffic to his sitesÖ.For example, he has registered obvious misspellings of celebrities names, such as gwenythpaltrow.com, rikymartin.com, and britineyspears.com." See Shields v. Zuccarini and Cupcake Patrol, 89 F. Supp.2d 634, 640 (E.D. Pa. 2000).
Respondent registered the domain name on March 27, 2000.
Respondent has used the disputed domain name as a portal to divert Internet traffic to pop-up advertisements for various goods and services. Respondent generates a profit from the advertisers who place the advertisements on his site.
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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or Confusingly Similar
Respondentís domain name is confusingly similar to Complainantís common law mark.
The deletion of the letter "e" from the mark does not diminish the confusing similarity between Respondentís domain name and Complainantís mark. See State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the Complainantís mark "State Farm"); see also 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).
Therefore, the Panel concludes that Complainant has met the burden set forth under Policy 4(a)(i).
Rights or Legitimate Interests
Respondent has not made any legitimate use of the domain name in connection with a bona fide offering of goods or services. Respondentís only use of the <kevinspacy.com> domain name is to divert Internet users to his web site consisting of multiple pop-up advertisements. See FAO Schwarz v. Zuccarini, FA 95828 (Nat. Arb. Forum Dec. 1, 2000) (finding no rights or legitimate interests in the domain names <faoscwartz.com>, <foaschwartz.com>, <faoshwartz.com>, and <faoswartz.com> where Respondent was using these domain names to link to an advertising website).
Respondent is not commonly known by the name "kevinspacy." He has no relationship with Complainant and is not authorized to use Complainantís name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainantís prior rights in the domain name precede Respondentís registration; (3) Respondent is not commonly known by the domain name in question).
Lastly, Respondent is not making any legitimate noncommercial or fair use of the domain name. Respondentís sole use of the domain name is to trigger several pop-up advertisements when unsuspecting Internet users misspell Complainantís name as a domain name. Respondentís web site is a commercial site and generates a profit from the advertisers who place banner advertisements on his site. See Cabelaís Inc. v. Zuccarini, FA 95233 (Nat. Arb. Forum Aug. 28, 2000) (finding no legitmate noncommercial or fair use where Respondent profited from the unsolicited pop-up advertisements that users encounter upon mistakenly entering Respondentís website).
Therefore, the Panel concludes that Complainant has established its burden set forth under Policy 4(a)(ii).
Registration and Use in Bad Faith
Respondent demonstrated bad faith use and registration by directing Internet traffic to pop-up advertisements. Bad faith is shown by Respondentís intentional attempt to attract, for commercial gain, Internet users to Respondentís web site or other on-line location, by creating a likelihood of confusion with Complainantís mark as to the source, sponsorship, affiliation, or endorsement of Respondentís web site or location or of a product or service on Respondentís web site or location. See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted users to advertisements).
Therefore, the Panel finds that the elements of Policy 4(a)(iii) have been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <kevinspacy.com> be transferred from Respondent to Complainant.
Honorable Ralph Yachnin
Dated: May 8, 2001
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