Stevland Morris a/k/a Stevie Wonder v. Unofficial Fan Club c/o Web Master
Claim Number: FA0504000453986
Complainant is Stevland Morris a/k/a Stevie Wonder (“Complainant”), represented by Stephen J. Strauss of Fulwider Patton Lee & Utecht, LLP, 6060 Center Drive, Tenth Floor, Los Angeles, CA 90045. Respondent is Unofficial Fan Club c/o Web Master (“Respondent”), JaLan Cempaka, Block B4, No #35, Pamulang, Indah, Jakarta Selatan 11530.
REGISTRAR AND DISPUTED DOMAIN NAME
The disputed domain name is <steviewonder.com>, which is registered with Enom, Inc. (“Enom”).
The undersigned, David H. Tatham, 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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 11, 2005; the National Arbitration Forum received a hard copy of the Complaint on April 11, 2005.
On April 11, 2005, Enom confirmed by e-mail to the National Arbitration Forum that the disputed domain name <steviewonder.com> is registered with Enom and that Respondent is the current registrant of the name. Enom has verified that Respondent is bound by Enom’s registration agreement and has thereby agreed to resolve domain name disputes brought by third parties in accordance with the Uniform Domain Name Dispute Resolution Policy (the “Policy”) of the Internet Corporation fort Assigned names and Numbers (“ICANN”).
On May 4, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 24, 2005 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 email@example.com by e-mail.
Respondent requested an extension of the response period and this was granted by the National Arbitration Forum on May 24, 2005 extending the period until May 31, 2005. A Response was received and determined to be timely and complete on May 31, 2005.
Timely Additional Submissions were filed by Complainant on June 6, 2005 and by Respondent on June 11, 2005. In accordance with the National Arbitration Forum Supplemental Rule 7 these were deemed to be acceptable. They are summarized below and, so far as they are relevant, the Panel has taken them into account.
On June 8, 2005, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David H. Tatham as Panelist.
The Panel notes that the Complaint is a “Second Amended Complaint,” however no explanation as to why this should be has been provided, and nothing hangs on it.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant is a male individual so it is right that in this Decision the Panel should refer to him in the third person singular as ‘he.’ The Response refers, at times, to Respondent in the third person plural as ‘we’ or ‘our’ even though the full name of Respondent is ‘Unofficial Fan Club.’ The Panel will therefore refer hereafter to Respondent as ‘they.’
Complainant, Stevland Morris, is an internationally famous entertainer and musical artist who performs under the distinctive stage name STEVIE WONDER. Spanning a remarkable career of forty years, the winner of more than fifteen Grammy Awards (including Best Male Vocalist in both pop and rhythm & blues), as well as the 1984 Academy Award for Best Original Song, Mr. Morris is one of the most influential and famous musicians and composers of the late 20th Century. Copies of articles and listings from various encyclopedias and dictionaries, all referring to and describing Complainant and his achievments were annexed to the Complaint.
Complainant is the owner of several trademark registrations for the words STEVIE WONDER – two each in the United States (Reg. Nos. 2,600,739 and 2,604,279) and Mexico (Reg. Nos. 513,376 and 513,377), and one each in Australia (Reg. No. 892,736) the European Union (Reg. No. 2,406,338) and the United Kingdom (Reg. No. 2,283,734). All of these registrations cover, inter alia, sound and video recordings and entertainment services, and copies of the Registration Certificates for all of them were annexed to the Complaint.
Respondent operates an unofficial fan club for the performer Stevie Wonder and attracts members to it via a web site at the disputed domain name.
In the following summary of Complainant’s and Respondent’s contentions, some of the references to legal or UDRP Decisions have been omitted.
Complainant contends as follows –
A. That the Domain Name is Identical to a Trademark and Service Mark in Which the Complainant Has Rights.
· Respondent registered the disputed domain name on March 4, 1999. It incorporates, in its entirety, Complainant’s STEVIE WONDER trademark.
· Respondent uses the disputed domain name differently at different times. Sometimes, it resolves into a web site having banner and pop-up advertisements and the following legend:
“To Join the Unofficial Fan
please drop one email to:
We promise not to share your email address with third parties
and we will not send you information other than non commercial artist related news.”
No reference to Complainant or his STEVIE WONDER trademark is made anywhere on this site.
At other times, the web site resolves into another web site that provides links to other commercial web sites relating to or involving various musical celebrities and groups (as well as Complainant).
Copies of both versions of the web site were annexed to the Complaint.
The Respondent Has No Rights or Legitimate Interests In Respect of the Domain Name
· Complainant has common law and United States and foreign registered rights in and to the STEVIE WONDER name and mark, and the name and mark have acquired secondary meaning. The contested domain name is virtually identical to this name. As such, Respondent’s registration and use of the <steviewonder.com> domain name infringes Complainant’s trademark rights and creates a likelihood of confusion under Section 2(d) of the United States Trademark Law. The domain name also dilutes the distinctiveness and fame of the Complainant’s rights in the STEVIE WONDER mark and name in violation of Section 43(c)(1) of the United States Trademark Law.
· Complainant has no relationship with Respondent, nor has Complainant given permission or authorized Respondent to register and use the disputed domain name.
· To the best of Complainant’s knowledge, Respondent has not been commonly known by the contested domain name.
· Complainant submits that Respondent had knowledge of Complainant's rights in the STEVIE WONDER mark and name when it registered the <steviewonder.com> domain name.
· The disputed domain name is so confusingly similar, that a reasonable Internet user would assume the domain to be somehow associated with Complainant and with his well-established and registered STEVIE WONDER mark.
The Domain Name Was Registered and is Being Used in Bad Faith
· Respondent has registered the disputed domain name, <steviewonder.com>, in bad faith under Paragraph 4(b)(ii) of the Policy. In addition to registering the disputed domain name, Respondent has registered domain names that incorporate the names of other internationally recognized musical artists including <annielennox.com> and <anidifranco.com>. Copies of WHOIS Search Result abstracts evidencing Respondent's registration of these domain names were annexed to the Complaint. Respondent's multiple registration of domain names incorporating the names of famous musical artists establishes a pattern of conduct preventing Complainant from reflecting his STEVIE WONDER mark and stage name in a corresponding domain name.
· Additionally, Respondent has engaged in a pattern of bad faith conduct by registering and using the disputed domain name in an attempt to purposely attract Internet users seeking Complainant online to Respondent’s commercial web site. Respondent presumably derives commercial benefit by receiving click-through fees for redirecting Internet users to other commercial web sites. Thus, Respondent’s attempts to divert Internet users for commercial gain by attracting these users to Respondent’s web site through a likelihood of confusion with Complainant’s mark is evidence of bad faith registration and use under Paragraph 4(b)(iv).
· The disputed domain name is so obviously connected with Complainant, that use and registration by Respondent (who has no connection with Complainant) establishes bad faith.
Respondent contends as follows –
That the Domain Name is Not Identical to a Trademark and Service Mark in Which the Complainant Has Rights
· The disputed domain name is not confusingly similar to Complainant’s trademarks which were obtained three and four years after it began to be used. The web site at the disputed domain name does not lead people to any conclusion other than it is an “Unofficial” Fan Club, one of dozens around the world. Because it is only unofficial, it sort of dispels any notion that Respondent is in some way affiliated with Complainant.
· Respondent does not contest Complainant’s acquisition of registered trademarks beginning in 2002. Respondent does not contest the fame of Stevie Wonder in any way and points out that there are many web sites on the Internet that operate as fan clubs operated by fan and which utilize the “.com” address of the artist they admire. Respondent refers to Decisions in the Bruce Springsteen (Springsteen v. Burgar, D2000-1532 (WIPO Jan. 25, 2001)), the Tupac Shakur (citation unclear) and the Edward Van Halen (Van Halen v. Morgan, D2000-1313 (WIPO Feb. 21, 2004)) UDRP cases, in all of which the fan club owners prevailed in cases against their idols, and now continue to operate fan club web sites under these names.
· The web site at the disputed domain name has been known for nearly seven years, and during this time it has become well established among persons on the Internet, in various chat rooms, on various search engines, and to over 175,000 opt-in fans who have signed up through it as members of “THE UNOFFICIAL STEVIE WONDER FAN CLUB.” The term ‘unofficial’ is used here so as to specify to anyone who visits the site that Respondent’s use of the disputed domain name is not confusingly similar to Complainant or to Complainant’s trademarks.
· Respondent has clearly established its own rights and, perhaps, Common Law rights in its use of the disputed domain name by fostering and promoting the Unofficial Fan Club relating to Stevie Wonder since March 1999.
· Complainant’s Trademarks are not protected in any category as a club or organization for enthusiasts, fans or user groups. But Respondent has, possibly, established this through their use of the disputed domain name.
· Respondent started its Unofficial Fan Club with noncommercial intent in 1992, which was just a year prior to its first use of the Internet and e-mail and the Usenet (or newsgroups). Respondent contends that it spent time on Usenet Newsgroups for several years before the opportunity to register the disputed domain name took place.
· Respondent was able to obtain the rights to the disputed domain name in March 1999 quite by luck when the previous registrant had let it go for non-payment. Respondent contends that a few days later Motown Records immediately registered <steviewonder.net> and that a person who claimed to be a representative from Motown Records telephoned Respondent and asked if they would sell them the domain name. Respondent replied that they would rather not, and the caller was told that Respondent ran the Unofficial Stevie Wonder Fan Club and planned to use the name to expand this club. There was no further communication.
· Respondent contends that its Common Law trademarks should be recognized, with additional consideration for the nearly seven years that Complainant has allowed it to exist, with occasional encouragement from various members of what Respondent perceived as being Stevie Wonder’s publicity agents and parties attempting to promote record releases, concerts, appearances, charity events, etc.
· Respondent confirms that Complainant’s annexed copy of a temporary web page that was on the site on March 15, 2005 is an accurate picture of the site at that time and at many other times whilst the regular site was updated. It clearly shows a way for people to sign up for Respondent’s e-mail list. There were no advertisements on the site at this date, but on another of Complainant’s annexes, printed on March 16, 2004, one day later, there appears to be an advertisement from Yahoo. Respondent contends that it did not put that advertisement there and that it has never had Yahoo as an advertiser or anyone else for that matter. It contends that the advertisement may have been photocopied over it, or that there was an existing pop up advertisement on the computer of the person who made the photocopy and that they may have positioned it over the web page before copying it. A visit to the web site right now would confirm that there is no advertising. There is no proof that Respondent was the party responsible for the pop up ad appearing on Complainant’s computer.
· In response to Complainant’s assertion that sometimes the web site provides links to other commercial web sites, Respondent contends that on the day in question this happened for a period of only about twenty-four hours. The date of the printout annexed to the Complaint was March 4, 2005 which is the anniversary of the day the domain was originally registered. Therefore, it was also the renewal date. Respondent believes that Complainant must have printed out the web page when the domain name had expired due to administrative registrar issues. Respondent only realized that this had occurred when another of its domain names expired for a day. When Respondent attempted to renew the disputed domain name with Enom prior to its renewal/expiration date of March 4, the credit card used for doing so could not be processed, as the registrar’s account payment system could not accept an Indonesian address and phone number. Thus, the disputed domain was shut down by eNom and because their free DNS service has been utilized to register the name, they immediately seized control of the web site and forwarded it to their own proprietary search page in association with an advertising company called SEDO or ZEDO that supplies pop up ads. Complainant’s annex shows the web address <http://eta.us>, but Respondent does not have a business relationship with Zedo, Eta.US or eNom outside of having a domain registration with Enom. Respondent contends that this must have been what Complainant saw and copied on the day the domain expired for a brief period and now asserts that Respondent somehow benefited from click-through revenues. This is not the case. All the advertising was supplied by Enom without Respondent’s knowledge. Respondent annexed a copy of an e-mail from Enom which it contends makes this clear. In this, the legal counsel for Enom acknowledges that the procedure is in their registration agreement. Respondent alleges that when this registration agreement was amended, there was no public notice that Enom would be placing advertising on the web sites of persons who had used their Free DNS service. That this practice has caused quite a stir was illustrated in a web site chat thread, a copy of which was annexed to the Response.
· Respondent contends that this was an isolated incident which they believe was there for a total of only one day. It was done by Enom without Respondent’s consent, but when payment was made, and the domain name renewed, the brief appearance of advertisements went away.
B. The Respondent Has Rights or Legitimate Interests In Respect of the Domain Name
· Respondent contends that its use of the disputed domain name is a bona fide offering of fan club services, that this is non-commercial and that it is fair use. Its web site is not operated for profit or gain, and indeed has generated no revenue whatsoever. It does not misleadingly direct people to any sites other than the fan club site.
· Respondent further contends that its fan club is often sought out by members of the media seeking historical facts relating to Stevie Wonder. No charge is made for any data or historical information provided and applicants know that Respondent does not work with Stevie Wonder and does not represent him.
· Respondent contends that its actions are nothing like those of the Respondent in the case of <juliaroberts.com> cited by Complainant (Roberts v. Boyd, D2000-0210 (WIPO May 29, 2000)), but more like those in the <tupac.com> case (citation unclear), and the <brucespringsteen.com> case (Springsteen v. Burgar, D2000-1532 (WIPO Jan. 25, 2001)).
· Respondent does not dilute the distinctiveness or the fame of Stevie Wonder in any way, but likens itself to a magazine which may utilize Stevie Wonder’s name on its cover. The mere use of the name of a celebrity on the front page of a magazine does not mean that the magazine is claiming any kind of specific rights in relation to the name, but merely that it features an article about the individual in question.
· Respondent denies Complainant’s assertions that the disputed domain name is so confusingly similar that a reasonable Internet user would “assume” that the domain is somehow associated with Complainant’s mark. The term “UNOFFICIAL” has always been synonymous with the web site at the disputed domain name, and anyone visiting the site in the last six-plus years, and/or looking at the WHOIS record, would quickly come to the conclusion that the site is not in any way affiliated with Stevie Wonder or his Trademarks. Respondent does not know of anyone who has ever been confused, and notes that Complainant has not produced any evidence of confusion.
· Contrary to Complainants’ assertion that he has no relationship with Respondent, nor given permission or authorized Respondent to register and use the contested domain name, Respondent contends that they know for a fact that Complainant’s representatives at Motown, the life long recording company to whom Stevie Wonder is under exclusive contract, and which is his eyes and ears in terms of marketing and promotion, did know about Respondent’s fan club when the name was first registered in March 4, 1999, and even perhaps as far back as when it was founded off the Internet in 1992. Respondent contends that they are very well known, due to their use of the disputed domain name and in this context says, in a direct quotation from the Response: “The fact that Respondents other representatives knew about our ownership and operation of the Unofficial Fan Club on StevieWonder.Com and never once objected to us, shows that reasonable time was given for the Unofficial Fan Club to build additional membership base to it’s already established club and that the use of the StevieWonder.Com domain established fair use of the name and a common law mark in terms of it’s use of StevieWonder.Com for the Unofficial Fan Club about Stevie Wonder.. It has become one of the most highly traveled websites in the world due to our efforts. It is not necessary to gain permission for things such as magazines, clubs etc to utilize the name of the subject of a magazine article or a fan club.”
· Stevie Wonder’s record label knew about Respondent’s acquisition, and over the years publicity people from the company had attempted to feed them news and information. No one had ever told Respondent to give up the name or to stop using it. If they had, Respondent might have cooperated.
· Respondent contends that he was introduced to Stevie Wonder backstage at an Awards show as President of the Unofficial Fan Club and that Stevie Wonder said “Thank you for the support” and that he loved people in Indonesia.
· Respondent contends that many thousands of people, perhaps over a million, have come to know the Unofficial Fan Club at the disputed domain name. Most, if they do not already know, quickly learn that Stevie Wonder’s official site is at <steviewonder.net>. Respondent contends that over 175,000 members have opted into the Unofficial fan Club and receive newsletters and share their thoughts which are included in the news that is distributed by the Club.
C. The Domain Name Was Not Registered or is Being Used in Bad Faith
· In response to this accusation, Respondent contends that they never acquired the domain name for selling, renting or transferring the name to a competitor of or to Complainant. They never attempted to use it for commercial gain, or to direct traffic to anywhere other than the unofficial fan club that was set up to praise Stevie Wonder and his achievements. Respondent maintains that they have worked hard to make sure no visitors to the site are confused by pasting the world UNOFFICIAL everywhere on the site, and even in the WHOIS record for the domain.
· The fact that Respondent operates other fan clubs does not show bad faith. It shows that they love many artists other than Stevie Wonder. Complainant’s annex simply shows that Respondent operates Unofficial Fan Clubs for AniDiFranco and Annie Lennox, without any opposition to its service thus far.
· Contrary to Complainant’s assertion that Respondent is operating in a pattern that prevents Complainant from reflecting his STEVIE WONDER mark, Respondent points out that in the <brucespringsteen.com> case the respondent prevailed, and he also owned several artist’s domain names. See Springsteen v. Burgar, D2000-1532 (WIPO Jan. 25, 2001). Mere registration does not in itself reflect bad faith.
· Respondent has never earned one penny from any click-through advertisements and Complainant has not provided any proof that they have. Respondent claims they have not been acting in bad faith, unlike the respondent in other UDRP cases referred to by Complainant.
· Respondent does not offer anything similar to the artist; it does not write songs, record songs, sell songs, or sell merchandise; it delivers information relevant to fans of Stevie Wonder. It is true that the web site is related to the artist’s name, but there is no confusion and anyone visiting the site would find that it is NOT an official web site of Stevie Wonder. Therefore to claim that the disputed domain name is “obviously connected” with Complainant is misleading.
C. Additional Submission by Complainant
In its Additional Submission, Complainant makes the following points, many of which were supported by references to and quotations from other UDRP Decisions –
· Respondent asserts a number of unfounded and unsupportable arguments. However, a review of the Response establishes that Respondent has failed to dispute the critical issues raised in the Complaint. Specifically, Respondent does not dispute:
1. That Complainant owns the rights to the STEVIE WONDER mark and name.
2. That the disputed domain name is identical to Complainant's STEVIE WONDER
trademark and service mark pursuant to Rule 3(b)(ix)(1) of the Policy.
3. That Respondent had actual knowledge of the STEVIE WONDER name at the
time of registration of the disputed domain name. In fact, Respondent admits that it was fully aware of the international fame of STEVIE WONDER prior to registering this name, and that it was the primary motivating factor in obtaining the domain name.
4. That Respondent was never authorized by Complainant to register and use the
disputed domain name.
5. That Respondent has not been commonly known by the disputed domain name.
6. That Respondent has exhibited a pattern of conduct of registering, as domain names, the names of other internationally famous entertainment celebrities without their authorization or consent.
· In light of the above, Complainant has made out a clear and convincing prima facie case in these proceedings. The burden now shifts to Respondent to establish rights or legitimate interests in the domain name with concrete evidence rebutting Complainant’s assertions. Respondent has failed to meet this burden. In fact, the Response actually supports a number of critical issues raised in the Complaint.
· Complainant has established that his STEVIE WONDER mark and name is famous throughout the world and Respondent does not dispute this fact. Indeed, Respondent admitted that it had actual knowledge of this international fame of the STEVIE WONDER mark and name, and that it was this fame that was the primary motivating factor in registering the disputed domain name. This establishes that Respondent registered a domain name identical to Complainant’s mark based on the goodwill associated with Complainant’s mark. It has been universally determined in a number of UDRP decisions that registration of a domain name that incorporates Complainant’s famous mark, despite knowledge of Complainant’s rights in the mark, is evidence, in and of itself, of bad faith registration and use, pursuant to paragraph 4(a)(iii) of the Policy.
· Moreover, Respondent's registration of <steviewonder.com> was not an isolated incident by a fan. In fact, Complainant's investigations have disclosed that Respondent has registered over 100 celebrity domain names including, but not limited to <arethafranklin.com>, <anitabaker.com>, <arrianahuffington.com>, <annielennox.com>, <anidifranco.com>, <paulazahn.com>, <raquelwelch.com>, <smokeyrobinson.com>, <goldiehawn.com>, <farrahfawcett.com>, <hughgrant.com>, <jimcarrey.com>, and <lucyliu.com>. Copies of reverse WHOIS reports evidencing Respondent's registration of these (and other) celebrity domain names were annexed to the Complaint. Undoubtedly, Respondent had actual knowledge that these domains incorporated the names of famous celebrities prior to registration. Further, it is unlikely that Respondent obtained authorization or consent from those celebrities to register domains that used or incorporated their names. Thus, Respondent's registration of numerous domain names incorporating the names of famous musical and entertainment artists establishes a clear pattern of conduct preventing Complainant from reflecting his STEVIE WONDER mark and stage name in the most logical corresponding “.com” domain name, in violation of Paragraph 4(b)(ii) of the Policy.
· Bad faith is also demonstrated by Respondent's own assertions in its Response, and its actions subsequent to receiving the Complaint. They demonstrate that, prior to receiving notice of the Complaint, Respondent never actively used the disputed domain name in connection with a bona fide fan site devoted exclusively to Complainant. As set forth in the Complaint, the domain originally resolved into a website having the legend referred to in the above summary of the Complaint. Complainant notes at this point that Respondent uses the identical generic legend in connection with sites linked to a number of other celebrity “.com” domain names it has registered including but not limited to <raquelwelch.com>, <smokeyrobinson.com>, <farrahfawcett.com>, <hughgrant.com> and <jimcarrey.com>. Copies of the web pages to these sites were attached to the Additional Submission.
· No reference to Complainant, his music, his career, or his STEVIE WONDER trademark was made anywhere on Respondent’s web site, nor did the site ever offer any commentary or criticism relating to Complainant. The appearance of this original “inactive” web site remained essentially unchanged for years, as evidenced by copies of pages obtained from the Internet Archive web site at <archive.org>, which were annexed to the Additional Submission. It was only after initiation of these proceedings that Respondent created a purported unauthorized STEVIE WONDER fan site, in an obvious and belated attempt to avoid being found in violation of the Policy. A copy of this newly revised web site, created after Respondent received notice of the Complaint, was attached to the Additional submission. Clearly, Respondent's original pre-notice use of the disputed domain was not bona fide, active or fair under the meaning of the Policy.
· Respondent's lengthy inactive use of the <steviewonder.com> domain name prior to these proceedings demonstrate that Respondent does not have a valid argument for (and cannot establish) a bona fide investment deserving of protection.
· Respondent contends that disclaimers on the web site at the disputed domain name (touting that the current site is an “unofficial” fan site) preclude Internet users from being confused. Such an argument is without merit. First, Respondent only recently added such disclaimers on its revamped site. Second, the disclaimers do not preclude “initial interest confusion,” which occurs when an Internet user directs his or her web browser to a particular site under a logically assumed “.com” domain name, only to find on arrival that the site has no relationship to the intended source. By the time the user arrives at the erroneous site, before the disclaimer is read or acted upon, confusion has already occurred. Thus, Respondent's belated insertion of disclaimers on its newly revamped <steviewonder.com> web site will not immunize Respondent from Complainant's charge that the disputed domain creates confusion. It is beyond legitimate dispute that the disputed domain name is identical to Complainant's STEVIE WONDER mark and name. The weight of previous UDRP panel decisions hold that the use of a domain name identical or confusingly similar to a Complainant’s mark is not a “bona fide” use within the meaning of paragraph 4(c)(i) of the Policy.
· Respondent's assertion that it uses the disputed domain name in a strictly non-commercial fan site does not insulate itself from a bad faith finding. It claims never to have received any “click-through” fees from the operation of this site. Although it is difficult to test the credibility of Respondent's claim on this issue in these proceedings, even if such an assertion were true, Respondent's registration and use of the disputed domain name would still violate the Policy. Respondent admits that it currently uses the disputed domain name in connection with an unauthorized fan web site. Such an unauthorized use usurps Complainant's rights in its STEVIE WONDER mark, by creating confusion and a false association in the minds of Internet users. Thus, regardless of whether or not Respondent is making any money from the site, its registration and use of the disputed domain name in connection with an unauthorized fan site is not a legitimate use and is in bad faith under the Policy.
· Respondent's claim that it has somehow acquired common law trademark rights in the disputed domain is patently ridiculous and need not be further commented on, other than to mention that Complainant acquired worldwide common law trademark and service mark rights in connection with his sound and video recordings and entertainment services (including fan clubs) long prior to Respondent's purported operation of a fan club and registration of the disputed domain name. Complainant's United States and foreign trademark and service mark registrations serve to confirm his international rights to the STEVIE WONDER mark and name.
· Respondent has commented on Complainant's delay in initiating these proceedings. Such assertions should have no bearing in this case. Numerous panel decisions have consistently held that laches is not available as a defense in these types of proceedings. Moreover, where, as here, a prima facie case is made out, the Policy does not provide for any defense of laches. Even if laches were available, Respondent has failed to provide any evidentiary support entitling it to such a defense. Respondent has offered no evidence that Complainant has been aware of its registration of the disputed domain for years. Its contention that Complainant became aware of the domain through Motown is strictly speculative and without foundation. In any event, Complainant owns the rights to the STEVIE WONDER mark and name, not Motown. Moreover, Respondent has failed to offer any credible evidence as to how it has been prejudiced by Complainant's purported delay in bringing on these proceedings, particularly since for the six years preceding this case, it never used the disputed domain name in connection with any bona fide fan web site. Such prejudice does not exist because Respondent will be able to continue to use the STEVIE WONDER mark in any non-infringing manner in connection with its purported fan club activities. It will just be unable to use the disputed domain name.
· As a final note, Respondent has cited a number of UDRP cases in support of its Brief. However, over the years these cases, particularly Springsteen v. Burgar, D2000-1532 (WIPO Jan. 25, 2001), have been criticized or distinguished, by other UDRP Panels. The clear weight of the UDRP case law is more in line with Complainant's position.
D. Additional Submission by Respondent
In its own Additional Submission, Respondent repeats a number of its previous arguments and assertions. The following is a summary of those that are new –
· Respondent maintains that it did indeed clearly specify in its original Response the manner in which the disputed domain name is not identical or confusingly similar to a trademark or service mark in which Complainant has rights. They do not dispute that Stevie Wonder owns his several trademarks, but they do dispute that their own common law mark, established whilst operating their fan club, is identical to Stevie Wonder’s marks.
· On the page at the web site at the disputed domain name, in the upper left hand uppermost part of each page is a header, usually in a blue stripe across the top of any and most web pages, which is not reflected in any of the annexes provided by Complainant. In that header, Respondent has always stated that the club was the Unofficial Stevie Wonder Fan Club, which is one of several elements that eliminates confusing similarity. Additionally, when a visitor signs up for the club by clicking on the email link, a e-mail form automatically pops up, and has always popped up, with the subject heading “Join Unofficial Stevie Wonder Fan Club.” Not only is this done so that Stevie Wonder fans can be segregated from fans of other clubs which Respondent manages, but it is to dispel any confusion that may lead visitors to think Respondent is affiliated in an authorized manner with Complainant. Complainant provided no evidence that anyone has ever been confused by Respondent’s non-affiliation with Stevie Wonder or his trademarks.
· Complainant continues to refer to cases that are unrelated to the free speech and rights of fan clubs to organize to praise and/or critique those persons who are the subject of the club. Respondent has developed a purpose for their domain name in that they run a bona fide fan club operation. These cases are not relevant to the present proceedings.
· Approximately 700-800 new persons per week sign up at Respondent’s Unofficial Stevie Wonder Fan Club and receive the e-mail information mentioned above.
· Complainant asserts, “It has been universally determined in a number of UDRP decisions that registration of a domain name incorporating a complainant’s famous mark, despite knowledge of complainant’s rights in the mark, is evidence, in and of itself, of bad faith registration and use.” That is untrue. There have been a number of cases, all mentioned in the original response that contradict this contention.
· Complainant refers to the Hillary Rodham Clinton case but in that case the respondent failed to submit a Response. Clinton v. Dinoia, FA 414641 (Nat. Arb. Forum Mar. 18, 2005). It is different from the present case because in it the respondent ran a search engine page unrelated to a fan club or bona fide fan club service. Respondent asserts it is not doing the same and should not be thrown in with those who are.
· Respondent does not dispute the fact that they maintain several Unofficial Fan Clubs for various recording artists and actors. It offers bona fide fan club and services in the case of <steviewonder.com>, and although information was added to the web site, it was a bona fide web site offering fan club services well before it was amended and well before this Complaint was filed.
· Respondent annexes a photograph of what happens when a visitor clicks on its e-mail link to Stevie Wonder’s fan club. As can be seen from this, or from visiting the site, the site has always been programmed to only sign up persons for the Unofficial Fan Club of Stevie Wonder. The same is true when visiting any of the fan clubs in Respondent’s network.
· Complainant contends that “Respondent's post-notice change underscores and evidences its previous inactive use of the <steviewonder.com> domain name.” That is also untrue. The name has been up and running as stated since early 1999 and has accumulated almost 180,000 members who have opted into the club. It was not inactive at all. It has been very active. The site was not created “after” the Complaint was made. The original site showed a clear Unofficial and Non-Commercial Use, as does the current site. A majority of the club’s activities take place through e-mail. Claims that there was “Lengthy Inactive Use” is bogus. The site has always been on and has always been used to add new members to the club. To suggest otherwise is not true. All the cases mentioned by Complainant were cases where there was no use prior to the complaint. That is not the case in the present Complaint and Complainant has provided no solid evidence to the contrary because there is none. The archive web site referred to in their annex fails because the Way Back web site has not been proven to be a fully complete record of every webpage on the Internet at every moment. It is simply a research project.
· Contrary to Complainant’s contentions, Respondent registered less than 100 domain names. That in itself does not mean that it is similar to the Morgan Freeman case referred to by Complainant. In that case the respondant did not run a “Fan Club.” See Freeman v. Mighty, LLC, D2005-0263 (WIPO Apr. 28, 2005). The respondant in that case ran the name to a search engine portal that was Commercial, as were the other domain registered by the respondent in that case. In the Bruce Springsteen case, the respondent had over 1000 celebrity domain names, but prevailed in that case because they were all non commercial as is <brucespringsteen.com>. See Springsteen v. Burgar, D2000-1532 (WIPO Jan. 25, 2001).
· Complainant states that “Respondent contends that disclaimers on the <steviewonder.com> website preclude users from being confused, and that Respondent only recently added such disclaimers on its revamped site.” That is untrue and the site has always been touted as “Unofficial”. Complainant’s attorneys contradict themselves, as can be seen from a copy of an early page which was annexed to the original Complaint.
DISCUSSION AND FINDINGS
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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;
(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.
Complainant has proved conclusively that he has trademark registrations of the name STEVIE WONDER. He also claims Common Law rights in this name and it is well established that Common Law rights are sufficient for a complainant to satisfy the requirements of paragraph 4(a)(i) of the Policy. It can be seen from the extracts from dictionaries and encyclopedias filed by Complainant that Complainant was born in 1950 and that his first album – called “Little Stevie Wonder: the 12 –Year Old Genius” – was released in 1963 when he was 13 years old. Thus, for over forty years the name Stevie Wonder has been known to music lovers all over the world. This is quite sufficient for an individual to establish Common Law rights in his or her name. Julia Roberts required far fewer years than that to establish rights in her own name in her domain name dispute (Roberts v. Boyd, D2000-0210 (WIPO May 29, 2000)) and Jeanette Winterton, an author, had published nine books and had had two plays performed on television in the fifteen years prior to the Complaint in which she was involved (Winterton v. Hogarth, D2000-0235 (WIPO May 22, 2000)).
However, in reply Respondent makes several claims: (1) that he has common law rights in the disputed domain name; (2) that Complainant’s trademarks are not similar to the disputed domain name because the site is clearly marked as being ‘Unofficial;’ (3) that Complainant’s trademarks were registered after his web site was established; and (4) that Complainant’s trademarks cannot be similar because they are not registered in respect of the services which he offers under the disputed domain name.
(1) Respondent claims that he has acquired Common Law rights in the name <steviewonder.com> through his nine year use of it as a domain name. This is a novel concept with very little merit, especially as Respondent resides in Indonesia which is a civil law country and where the concept of common law is unknown. In a common law passing off action under English jurisdiction (with which the Panel is most familiar) a claimant must establish three things, the first of which is that he has “a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying ‘get-up’ ……under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff’s goods or services.” (Lord Oliver in Reckitt & Colman Prods. Ltd. v. Borden,  R.P.C. 341 (H.L.), the leading English case on the subject.) Likewise, in WIPO’s “Overview of WIPO Panel Views on Selected UDRP Questions”, it is stated that in order to assert common law rights, a party
must show that the name has become a distinctive identifier associated with (the party) or its goods and services. Relevant evidence of such ‘secondary meaning’ includes length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition. The fact that the secondary meaning may only exist in a small geographic area does not limit (the party’s) rights in a common law trade mark. Unregistered rights can arise even when the complainant is based in a civil law jurisdiction. 
In this case, Respondent has produced no proof whatsoever that anyone would recognize him, as opposed to Complainant, as the owner of the Stevie Wonder name. Indeed, how could he when he has apparently only used a variation of the name for nine years, on a modest scale, as opposed to Complainant’s use of the name itself for over forty years worldwide on a massive scale. Complainant has described Respondent’s claim to have Common Law rights as “patently ridiculous” and the Panel does not quarrel with this description.
(2) Respondent claims that Complainant’s trademarks are not similar to the disputed domain name because the site is clearly marked as being ‘Unofficial.. This claim too has no merit. It is customary, when comparing a trademark with a domain name, to disregard the ‘.com’ suffix and when one does so, and in the present case the only difference between the two signs is that Complainant’s is spelt as two words and Respondent’s as one. The word ‘Unofficial’ may be used on the website but it is not a part of the domain name and the Policy is clear that it is the domain name and the trade mark that must be identical or confusingly similar. The Panel has no difficulty in deciding that in this case, for all practical purposes they are identical.
(3) and (4) Both the fact that Complainant’s trademarks were registered after Respondent’s website was established, and that they are allegedly not registered in respect of the services which he offers under the disputed domain name are also irrelevant. The Policy makes no specific reference to the date when a complainant acquired his rights or to the goods or services for which where these rights are protected. In any case, not only does Complainant’s use of the name STEVIE WONDER predate Respondent’s use by decades, but also most of Complainant’s trademarks are actually registered for ‘fan clubs.’ So in fact Respondent’s allegations are both proved to be false.
In conclusion, the Panel finds that without doubt paragraph 4(a)(i) of the Policy has been proved.
The Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name. For example, paragraph 4(b) reads:
Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or
demonstrable preparations to use, the domain name or a name
corresponding to the domain name in connection with a bona fide
offering of goods or services; or
(ii) you (as an individual, business, or other organization)
have been commonly known by the domain name, even if you have
acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the
domain name, without intent for commercial gain to misleadingly
divert consumers or to tarnish the trademark or service mark at issue.
The Panel believes that there are two main aspects to be considered under this heading: (1) Where the onus lies; and (2) Is Respondent operating a legitimate fan club site?
(1) As Complainant has rightly pointed out, once a complainant has established a bona fide case, the onus to prove the he has a legitimate right in a disputed domain name transfers to a respondent.
In this case, Complainant has made a powerful argument that Respondent has no legitimate rights or interest to the disputed domain name, <steviewonder.com>, and so it falls to Respondent to prove that they have. Whether they have succeeded in this will be considered below under the second of the above questions.
(2) The consensus of opinion on the question of fan clubs, according to WIPO’s “Overview of WIPO Panel Views on Selected UDRP Questions,” is that “An active and clearly non-commercial fan site may have rights and legitimate interests in the domain name that includes the complainant’s trademark. The site should be non-commercial and clearly distinctive from any official site.” As already noted, this Overview is not to be considered as a precedent but it is the majority view, and the Panel would need more evidence than it has been provided with to disregard it. For example, the Overview refers to two WIPO Cases. In Estate of Gary Jennings v. Submarine, D2001-1042 (WIPO Oct. 25, 2001) it was said:
Based upon a review of Respondent’s web site, Respondent appears to be providing reviews of Gary Jennings’ books; and not advertising. Based on the record, before any notice to Respondent of the dispute, it appears that Respondent was using the Domain name in connection with a bona fide offering of goods and services. Respondent has been using the Domain name in connection with a web site to share information on the author Gary Jennings. The Panel finds on this basis that respondent has a legitimate interest in the Domain name.
In 2001 White Castle Way, Inc. v. Jacobs, D2004-0001 (WIPO Mar. 26, 2004) it was said:
Respondent’s website provides a wide range of information concerning Pat Benatar, the recording artist. There are clear disclaimers on the website stating that it is not endorsed by or an official website of the recording artist. There is no evidence on the record of this proceeding that Respondent obtains any commercial benefit from the website. While he does make a recommendation regarding the Internet retailer which he believes to stock the widest selection of the recording artist’s work, there is no evidence that Respondent receives compensation from the retailer. Respondent is not seeking to disparage the recording artist. Complainant was aware of Respondent’s website and activities for a substantial period, and requested that his website be linked to its official website before changing its view and attempting to obtain a transfer of the disputed domain name. The combination of these factors leads the Panel to conclude that Respondent is engaging in legitimate noncommercial use of the disputed domain name.
As a result of the above summary of the consensus view, it would seem that there are two further questions which fall to be answered in this case: is Respondent’s web site at the disputed domain name clearly non-commercial, and is it active? If the answer to either is in the negative, then Complainant must prevail.
To support its arguments, Respondent relies on the Decisions in several cases, notably the Bruce Springsteen and Tupac cases. The former, Springsteen v. Burgar, D2000-1532 (WIPO Jan. 25, 2001), was decided by a three-person Panel and it was not unanimous. It has also been criticized subsequently, as Complainant notes. This Panel has read both the majority and the dissenting judgments in the case and tends to side with the latter, believing that the majority put rather too much weight on the fact that an Internet search for ‘Bruce Springsteen’ gave rise to thousands of hits. But the case is distinguishable from the present one in that anyone who accessed the site at the disputed domain name was immediately diverted to another site operated by the respondent. Therefore there was an element of commerce involved, even though the majority of the Panel held otherwise.
Respondent also cites “Tupac” but there are several UDRP cases involving the deceased hip-hop artist Tupac Shakur, and Respondent does not make clear to which one he refers. In Estate of Tupac Shakur v. Shakur Info Page, AF-0346 (eResolution Sept. 28, 2000), the Panel found in favor of the Complainant under all three grounds of paragraph 4(a) of the Policy and ordered the name to be transferred, so this does not appear to assist Respondent. However in The Estate of Tupac Shakur v. R.J.Barranco, AF-0348a and AF-0348b (eResolution Oct. 23, 2000), the Complaint was denied. The case involved two domain names – <tupac.net> and <tupac.com> and as it is this latter name to which Respondent refers, the Panel has worked on the assumption that it is this case which he must take account of.
On the face of it the case would appear to favour Respondent as in it the Respondent was operating a non-commercial Fan Club at the site which clearly distinguished itself from the official Tupac Shakur site, and the Complaint was denied. However the case can be distinguished from the present case because it was concerned with what was an active site in itself which was wholly devoted to the artist and, as explained below, the Panel has concluded that the web site at the disputed domain name in the present case does not fall into the same category.
On this point Complainant also refers to two cases in its support: George Harrison and Kevin Spacey. In the first of these, Harrison v. LOVEARTH.net, FA 97085 (Nat. Arb. Forum June 4, 2001), it is true, as Complainant says, that the Panel found that fan sites can cause confusion as to their source, sponsorship, affiliation, or endorsement, but it also found “that the domain names at issue have essentially been held hostage by Respondent to coerce Complainant to take a position of sponsorship of the particular environmental movement espoused by Elsis” and concluded that “Respondent is not making a legitimate noncommercial or fair use of the disputed domain names without misleadingly diverting consumers to its web site or tarnishing Complainant’s famous mark.” It was therefore a case where the disputed domain name was used commercially.
In the second case, Spacey v. Alberta Hot Rods, FA 114437 (Nat. Arb. Forum Aug. 1, 2002), the respondent was originally using the web site to direct Internet traffic to its own commercial site and the Panel found that his subsequent use of the domain name for an unauthorized fan site was a demonstration that he was not making fair use of it within the meaning of the Policy.
Thus in the opinion of the Panel, none of these four cases appear to assist him in coming to a conclusion as to whether Respondent’s actions in this case are legitimate.
On the question of commerce, the Panel has come to the conclusion that in the present case there is no evidence of commercial or other activity by Respondent. Complainant alleges that the site at the disputed domain name has been commercially active and evidences copies of two different versions of the site. He alleges that both show evidence of links to commercial websites but in fact, as far as the Panel can see, one does not, and this is the version that has remained unchanged for six years. Respondent has provided an explanation (with proof) of why the other version of the site appeared, with its clear links to commercial web sites, claiming that this occurred on a temporary basis, without their permission, and with any revenues resulting from persons clicking on the links being pocketed by the Internet Service Provider not Respondent – an explanation which Complainant has not contested in his Additional Submission. Respondent stoutly denies that they have ever received any money through the web site from advertising, and they do not charge for supplying information about Stevie Wonder to the media. The site’s only purpose has been to attract new members to its Stevie Wonder Fan Club. Complainant attempts to cast doubt on Respondent’s denials, but provides no proof. The Panel prefers to believe Respondent on this issue, and concludes that the web site has not been operated for commercial gain.
More pertinently, Complainant also alleges that Respondent has never actively used the disputed domain name in connection with a bona fide site devoted exclusively to Stevie Wonder and that it is, therefore, not a legitimate fan site. There is a great deal more merit in Complainant’s argument on this point, as for many years the only message on the site was an invitation to all visitors to send an e-mail if they wished to join the Unofficial Stevie Wonder Fan Club. That hardly constitutes active use. The message has remained the same for more than six years, or until the dispute was filed when the content of the site was suddenly enlarged upon and now contains some information about Stevie Wonder, such as a list of some of his recordings and a notice of his forthcoming appearance at a rock concert. However the invitation to join the Club remains the same, and it is still made clear that the Club is Unofficial. The site even conveniently provides a link to the Official Stevie Wonder web site, as well as to other related sites. This dramatic change is too much of a coincidence, and the Panel agrees with Complainant that it was probably prompted by Complainant’s initial criticisms and in an effort to avoid the consequences of the Policy. However what happens after a Complaint is filed is, usually, not relevant.
There are some precedents in Complainant’s favor on the point that an inactive site is contrary to the Policy. For example, Fox News Network, LLC v. Solomon, D2005-0022 (WIPO Mar. 25, 2005) where the disputed domain name was transferred, partly because the respondent had proffered no “evidence that he had made any criticism, comment or even a passing reference to Complainant;” and Pernod Ricard SA v. Pernod Records, D2001-1471 (WIPO May 1, 2002) in which lengthy inactivity of the domain name was one of the factors in a finding of illegitimacy.
On the subject of fan sites, Complainant alleges that “The clear weight of the UDRP case law is more in line with Complainant’s position.” As we have seen above from WIPO’s Overview, that is true only when it is clear that the site is both non-commercial and active. Respondent claims to have a number of fans registered via its site. On the site itself, the total membership is given as 177,000, but Respondent variously refers to membership as being “over 175,000,” “many thousands of people, perhaps over a million”, “700-800 new persons per week,” and “almost 180,000 members.” However Respondent produces neither evidence to support any of these figures nor indeed any evidence whatsoever about the Club or its existence. The Panel is therefore entitled to doubt the accuracy of these unsupported statements. But in fact this is unnecessary, because it is quite clear that the web site itself is not the Fan Club. It is, as we have seen, and as Respondent repeatedly assures us, only the gateway through which erstwhile fans of Stevie Wonder can apply for information about the Club. The inevitable conclusion therefore is that the web site at the disputed domain name is not active as a Fan Club. This activity occurs elsewhere. Respondent emphasizes again and again that theirs is an unofficial fan club, but that hardly matters once one has established that the web site itself is not the Club. In any case, as Complainant has pointed out, an Internet user is likely to have been confused before perceiving that the site carries an unofficial label.
The Panel concludes that although the disputed domain name may be non-commercial, it has never acted as a fan site and it therefore fails the second of the requirements for legitimacy set by the WIPO Overview. The inevitable conclusion must be that Respondent does not have any rights or legitimate interest in it and that paragraph 4(a)(ii) of the Policy has been proved.
Paragraph 4(b) of the Policy sets out four circumstances which could be evidence of a bad faith registration, although the list is not exhaustive. In this case, only one out of the four would appear to be directly relevant, but there are indeed other factors.
Paragraph 4(b)(ii) of the Policy provides that there is bad faith if a respondent “registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct.”
In the present case, the Panel finds that this allegation is proved conclusively. It is true that Complainant has established a very full site to promote his activities at <www.steviewonder.net> but everyone knows that a ‘.com’ site is to be preferred and it is where an Internet user looking for information about the singer would look first, so Respondent’s registration of <steviewonder.com> has been a barrier to Complainant.
As for establishing ‘a pattern’, Complainant has also stated that Respondent has registered over 100 domain names containing the names of various celebrities, and he has provided evidence of 32 of these (including Stevie Wonder). Respondent does not deny this – although they dispute the actual number and they dispute the accuracy of the site used by Complainant to acquire the evidence – but they claim that all of these sites contain a message similar to the one that appeared at the disputed domain name until it was radically altered following the filing of the Complaint. The Panel feels sure that if a Complaint had been filed by any of these other artists, Complainant would have been very quick to draw attention to it. Thus they presumably exist undisturbed and, perhaps, Respondent is running fan clubs for all of them, despite his expressed preference for Stevie Wonder.
The Panel concludes from this that paragraph 4(b)(ii) of the Policy is proved, and bad faith established.
Thus it is hardly necessary to comment at length on any additional arguments, for example that, as has been universally determined in a number of UDRP decisions, registration of a domain name incorporating a complainant’s famous mark, despite knowledge of the complainant’s rights in the mark, is evidence, in and of itself, of bad faith registration and use; or that the weight of previous UDRP panel decisions have held that the use of a domain name identical or confusingly similar to a Complainant’s mark is not a “bona fide” use; or that Respondent's revision of its previous inactive site to an unauthorized STEVIE WONDER fan site after notice of this dispute is a demonstration of bad faith; or that despite Respondent’s emphasis on the fact that the web site is clearly marked as being ‘Unofficial,’, this will still create “confusion and a false association in the minds of internet users.”
However, for the record, these are powerful arguments, which have been well argued and documented by Complainant and scarcely rebutted by Respondent. They would therefore seem to add further weight to a finding of bad faith.
The Panel accepts entirely Complainant’s arguments that its failure to take any action against the disputed domain name until now is not an issue. Laches does not feature in the Policy and has never been held against a complainant.
Respondent claims his right to freedom of speech but closing down the web site at the disputed domain name, or transferring the name to Complainant, would not prevent Respondent from maintaining his Fan Club, but through a different name such as <joinanunofficialfanclub.com>.
Respondent also alleges that the rights of fan clubs to organize and to praise and/or criticize those persons who are the subject of the club, have been established in many UDRP Decisions. He also claims to run a bona fide fan club operation. This may be true but, as found above, the Fan Club is not run from the disputed domain name. It matters not therefore that it is an unofficial club.
Respondent also claims to have been approached by and to have assisted Complainant’s recording company Motown whom, they also claim, know about the disputed domain name. However, as was rightly said in Complainant’s Additional Submission, Motown has no standing in this matter which is between Complainant himself and Respondent. Respondent’s reported conversation with Complainant long ago is pure hearsay and irrelevant to this proceeding.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <steviewonder.com> domain name be TRANSFERRED from Respondent to Complainant.
David H Tatham, Panelist
Dated: June 22, 2005
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National Arbitration Forum
 ‘The WIPO Decision Overview’ is not a precedent in itself, but it does reflect a studied and considered summary of consensus positions culled from the decisions by numerous panellists in UDRP proceedings during its first 5 years. Panelists are not bound by previous Decisions, but in order to promote consistency Panels are expected to follow the consensus – or majority – view.
 Whether or not the Fan Club itself charges for membership or has otherwise been operated commercially is not an issue.