Jessica Queller v. Damma Laima / APT
Claim Number: FA2301002027196
Complainant is Jessica Queller ("Complainant"), United States, represented by David J. Steele of Tucker Ellis, LLP, United States. Respondent is Damma Laima / APT ("Respondent"), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jessicaqueller.com>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on January 11, 2023; Forum received payment on January 11, 2023.
On January 12, 2023, GoDaddy.com, LLC confirmed by email to Forum that the <jessicaqueller.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 January 16, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@jessicaqueller.com. Also on January 16, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On February 10, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, 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
Complainant is an author, producer, actress, and women's health advocate. Complainant states that she uses her name as a trademark and service mark to identify her goods and services. Complainant states that she became widely known as a co-producer and writer for Gilmore Girls and other television series. She has made numerous appearances on Good Morning America and other television and radio programs in connection with her women's health advocacy and has been the subject of extensive media coverage. She registered the disputed domain name <jessicaqueller.com> in 2008, using it to promote her writing, producing, and advocacy services until the registration lapsed in 2022. (She states that GoDaddy failed to renew the registration despite her having made payment.)
Respondent registered or acquired the disputed domain name in 2022. The domain name is currently being used for an Indonesian-language website featuring online gambling materials and other commercial links. Complainant states that Respondent is not commonly known by the domain name, has no relationship with Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <jessicaqueller.com> is identical or confusingly similar to her JESSICA QUELLER mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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."
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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
Complainant asserts common law trademark rights in JESSICA QUELLER based upon her longstanding use thereof in connection with Complainant's activities as a author, producer, actress, and women's health advocate. Common law rights are sufficient under the Policy, provided the Complainant can prove that the mark has acquired secondary meaning. See, e.g., Peter B. Walker v. taotao, FA 2001826 (Forum July 27, 2022) (recognizing such rights in personal name of author and consultant); Jeanette Winterson v. Mark Hogarth, D2000-0235 (WIPO May 22, 2000) (finding such rights in personal name of author); see generally WIPO Overview of WIPO Panel Views on Selected UDRP Questions, supra, § 1.5 (noting that the name must be "used in commerce as a distinctive identifier of the complainant's goods or services"; "[m]erely having a famous name" is insufficient). In the Panel's view, Complainant has provided sufficient evidence of use and recognition to support her unchallenged claim of common law rights in JESSICA QUELLER.
The disputed domain name <jessicaqueller.com> corresponds to the JESSICA QUELLER mark, with the space omitted and the ".com" top-level domain appended thereto. The domain name is identical to that mark for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Peter B. Walker v. taotao, supra (finding <peterbwalker.com identical to PETER B. WALKER); Jeanette Winterson v. Mark Hogarth, supra (finding <jeannettewinterson.com> identical to JEANETTE WINTERSON). The Panel therefore finds that the disputed domain name is identical to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and it is being used for a commercial website bearing no apparent relationship to the domain name, presumably using the domain name simply to attract traffic to the website. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Peter B. Walker v. taotao, supra (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name corresponding to Complainant's name and common law mark, and is using it to attract Internet users to a commercial website with no apparent connection to the domain name. The Panel infers from the circumstances that Respondent was aware of Complainant and her prior use of the disputed domain name. Respondent's conduct is indicative of bad faith registration and use under the Policy. See, e.g., Peter B. Walker v. taotao, supra (finding bad faith in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <jessicaqueller.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 11, 2023
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