Australian Skeptics (Victorian Branch) Inc / Australian Skeptics Inc v. Australian Vaccination Network / Greg Beattie
Claim Number: FA1212001474711
Complainants are Australian Skeptics (Victorian Branch) Inc / Australian Skeptics Inc (“Complainant”), Australia. Respondent is Australian Vaccination Network / Meryl Dorey (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <australiansceptics.com>, <australiansceptics.org>, <australiansceptics.net>, <australiansceptics.info>, and <realaustraliansceptics.com>, registered with GoDaddy.com, LLC.
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.
Francine Tan as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 7, 2012; the National Arbitration Forum received payment on December 7, 2012.
On December 10, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <australiansceptics.com>, <australiansceptics.org>, <australiansceptics.net>, <australiansceptics.info>, and <realaustraliansceptics.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 20, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2013 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@australiansceptics.com, postmaster@australiansceptics.org, postmaster@australiansceptics.net, postmaster@australiansceptics.info, and postmaster@realaustraliansceptics.com. Also on December 20, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on January 8, 2013.
Respondent submitted two further documents entitled “Query 1” and “Query 2” on December 31, 2012 which the Panel has taken into consideration. The documents raise questions and contain submissions relating to the contents of the Complaint.
On January 16, 2013, pursuant to Complainants' request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Francine Tan 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainants request that the domain names be transferred from Respondent to Complainant.
A. Complainants
i. Respondent’s <australiansceptics.com>, <australiansceptics.org>, <australiansceptics.net>, <australiansceptics.info>, and <realaustraliansceptics.com> domain names (“the disputed domain names”) are confusingly similar to the trade mark AUSTRALIAN SKEPTICS in which it has rights.
ii. Respondent does not have any rights or legitimate interests in the disputed domain names; and
iii. Respondent registered and is using the disputed domain names in bad faith.
The “Australian Skeptics” organization was founded in 1981 and is a loose confederation of groups across Australia that investigates paranormal and pseudo-scientific claims from a scientific viewpoint, and promotes science, rationality and critical thinking. There are various state and regional groups across Australia. The Victorian Branch was incorporated in the state of Victoria in 1993 and the Australian Skeptics Inc. was incorporated in the state of New South Wales in 1986. Complainant has through long use since the early 1980’s established common law rights in the AUSTRALIAN SKEPTICS mark.
According to its website, the Respondent, Australia Vaccination Network, was formed for the purpose of providing medically-referenced information on vaccine safety and effectiveness; lobbying to ensure that vaccinations are never made compulsory for Australian children; and supporting those who have chosen not to vaccinate or to vaccinate selectively. Respondent has never been known as “Australian Sceptics.” The parties have had an “adversarial relationship” over the last decade due to disagreements and intellectual criticism relating to, amongst other things, alleged vaccine misinformation that has been disseminated by Respondent.
With the climate of hostility between the parties, it is hard to imagine that Respondent would register the disputed domain names without the intention of diverting Internet users or tarnishing the AUSTRALIAN SKEPTICS mark.
The disputed domain names resolve to a WordPress blog operated by Respondent where Respondent espouses and promotes a kind of “selective and irrational doubt” which is more akin to “denialism” rather than “skepticism.”
Respondent’s selection of the disputed domain names which are confusingly similar to the AUSTRALIAN SKEPTICS mark will misleadingly divert Internet users to Respondent’s sites. Apart from concerns at the health ramifications of anyone taking the materials posted on Respondent’s blog seriously, Complainants are concerned that they will be mistaken to be the creators of the content of the blog hosted under the disputed domain names. It will cause confusion as the blog is run by Respondent which has diametrically opposed aims and there is no explicit statement on the blog that it is controlled and maintained by the Australian Vaccination Network. The damage to goodwill is also of concern as Complainant has built good relations with schools, museums and the Australian community and government bodies over a 30-year period. Respondent, on the other hand, has attracted the disapproval of public health organizations and government bodies.
B. Respondent
The assertions made by Respondent are, inter alia, as follows. Complainants have not registered any trade marks despite being established over 30 years ago. It is not clear which of the Complainants is asserting exclusive rights to the mark AUSTRALIAN SKEPTICS; in any case, they are not in a position to enforce or to stipulate that as Complainants state on their website that it is a “website for the organizations that collectively use the AUSTRALIAN SKEPTICS mark.” It is unclear from the Complaint who the legitimate owner of the mark is. Moreover, the words AUSTRALIAN SKEPTICS are generic and there already are at least 10 other Australian entities registered by the Australian Securities and Investments Commission (“ASIC”) and the 8 State/Territory Association or Business Names Registries that include “skeptic” in their name (e.g. Skeptic Pty Ltd, Canberra Skeptics, Borderline Skeptics Inc., Queensland Skeptics Association Inc., and The Australian Skeptics Science and Education Foundation Limited). The attributes of the common law mark asserted are vague and imprecise and insufficient to grant trademark rights.
Complainants do not engage in trade or commerce. Complainant’s “Australian Skeptics Inc.” organization is registered under the rules of the NSW Associations Incorporation Act 2009, which explicitly states that associations are not vehicles for trade or commerce, especially with the general public. Associations registered under this Act should be “constituted for the purpose of engaging in small-scale, non-profit and non-commercial activities.” Australian organizations that do wish to trade or engage in commerce are required to register with the ASIC as a “Company limited by Guarantee.”
Respondent does not engage in commerce or trade that could be considered competitive with Complainants. Respondent does not sell any of the goods or services claimed by Complainant. Complainant has not accused Respondent of selling any of these claimed goods or services. Respondent does not use its website for any form of trade or commerce, only “information and discussion.”
Anyone visiting Respondent's website will be spared confusion with Complainants in three ways: (i) the differing logo featured on Respondent’s site; (ii) Respondent’s differing name: “The REAL Australian Sceptics;” and (iii) the difference in spelling: “Sceptic” with a “C” and not a K.
There is no bad faith use and registration. Complainants offer no proof to support their claim that Complainants and Respondent are “adversaries.” Respondent does not undertake activities for the purpose of profit or commercial gain. The Complaint is an abuse of process aimed at restricting the open expression of ideas, dissenting views and free speech.
Paragraph 15(a) of the Rules stipulates that the Panel is 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.”
Paragraph 4(a) of the Policy requires that Complainants must prove each of the following three elements to obtain the order for a transfer of the disputed domain names:
(1) the disputed domain names are identical or confusingly similar to a trademark or service mark in which Complainants have rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain names; and
(3) the domain names have been registered and is being used in bad faith.
A basic and threshold requirement under the Policy is for the complainant to establish that it has rights in the trade mark or service mark concerned. Although in this case, Complainants have not registered the mark AUSTRALIAN SKEPTICS, the wording of the Policy does not necessitate a trademark registration before a complainant can submit a complaint; all that is needed is for Complainants to show they have rights in the mark.
The mark, AUSTRALIAN SKEPTICS, being descriptive as it is of Complainants’ activities, in order to establish common law rights therein, they would have to prove secondary meaning or acquired distinctiveness such that they can claim exclusive rights to the mark and so that the mark can be capable of identifying Complainants as the source of a particular product or service. Relevant evidence of secondary meaning would include, for instance, “length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition” (see Amsec Enters., L.C. v. Sharon McCall, WIPO Case No. D2001-0083). The requirement to establish secondary meaning involves “[demonstrating] that the mark, by means of sufficient marketing, sales, usage, and passage of time, has become identified in the public mind with a particular source of the goods or services. […] In determining whether a mark has acquired a secondary meaning, courts consider such factors as (1) advertising expenditures, (2) consumer surveys linking the mark to a source, (3) unsolicited media coverage of the service, (4) sales success, (5) attempts to plagiarize the mark, and (6) length and exclusivity of the mark’s use” (see Media West-GSI, Inc., and Gannett Satellite Info. Network, Inc., d/b/a The Burlington Free Press v. Earthcars.com, Inc., WIPO Case No. D2000-0463).
In this case, the Panel is of the view that Complainants have not met their burden of establishing they have rights in the mark AUSTRALIAN SKEPTICS. The Complainants provided a bald statement that they were founded in 1981 and that “AUSTRALIAN SKEPTICS is a common law mark that can be continually associated with goods and services provided by the complainants.” In terms of evidence, very little was provided which fell way short of what is needed to prove secondary meaning in the mark. The Panel disagrees with Respondent’s submission that “without a registered trademark, the Complaint should be summarily dismissed” but acknowledges the arguments Respondent has put forward querying the exclusive ownership of the mark claimed by Complainants, bearing in mind the generic nature of the mark and the seeming common use of the word “skeptics” by other Australian entities or organizations.
Complainants have failed to satisfactorily address the generic nature of the mark and to substantiate with sufficient evidence that notwithstanding, they have acquired rights in the mark due to its secondary meaning and exclusive association with them in the mind of the public.
As Complainants have not succeeded on the first limb of the Policy, namely paragraph 4(a)(i), it is not necessary for the Panel to make a further inquiry into or reach a decision on the issues of paragraphs 4(a)(ii) and (iii).
Having not established the first element required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <australiansceptics.com>, <australiansceptics.org>, <australiansceptics.net>, <australiansceptics.info>, and <realaustraliansceptics.com> domain names REMAIN WITH Respondent.
FRANCINE TAN, Panelist
Dated: January 21, 2013
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