CPT's Page of Selected Domain Name Disputes

 
"... such right of interest is and will be always
subject to the lack of disputes with parties having
better rights or more legitimate interests as in 
this case."

Respondent is not a licensee of the Complainants and is not otherwise authorized to use the Complainants' marks. However, the Policy sets forth examples of circumstances whereby a domain name registrant may demonstrate a right or legitimate interest in a domain name, including:

... 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 "fair use doctrine applies in cyberspace as it does in the real world." See Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1065 (9th Cir. 1999). . .

... although the domain name registered by (Jack Myers) is identical or confusingly similar to the trademarks in which the Complainants have rights, (Jack Myers) has legitimate fair use and free speech rights and interests in respect of the domain name, and ... has not registered and used the domain name in bad faith. The Panel therefore denies the claim of the Complainants for transfer of the domain name.

At each website, Respondents attack and criticise the Complainant and its staff in relation, inter alia, to its failure to certify Respondents' Odatus generator. . . they are not using the domain names in connection with a bona fide offering of goods or services . . . Examination of Respondents' web pages clearly show that they are using their domain names to attract persons to their sites for the purpose of publicly attacking the Complainant and members of its staff and pleading its case in relation to a dispute between themselves and the Complainant...

Persons attracted to the site are likely to be persons seeking contact with Complainant, not persons seeking contact with Respondents. . . Respondents claim to rights and legitimate interests is essentially based on a claim to freedom of speech and, expression of opinion, but that right does not require the use of Complainant's trade marks in the domain names for that purpose.

"Furthermore, the majority seems to assume
that a trademark owner has some sort of God
given right to use the trademark to the 
exclusion of others. As Justice Holmes observed,
'A trademark does not confer a right to prohibit
the use of the word or words?. A trademark only
gives the right to prohibit the use of it so far
as to protect the owner's goodwill against the
sale of another's product as his.' Prestonettes,
Inc. v. Coty, 264 U.S. 359 (1924). In short, the
Complainant does not own all rights to the generic
word CREW by virtue of its trademark registration."

"The UDRP is intended to prevent trademark owners from
being extorted by cybersquatters, but it is also
intended to protect legitimate registrations from being
threatened by overreaching trademark owners. A correct
application of the spirit and letter of the UDRP gives
each of these concerns equal weight. The majority
opinion fails to balance these concerns. Absent any
evidence that the original registrant was trading
specifically on the value of the Esquire Magazine mark,
I cannot conclude that the name was registered in bad
faith."

the Respondent elaborates that "If Julia Roberts had picked up a phone and said, 'Hi Russ, can we talk about the domain name juliaroberts.com?' she would own it by now." Then Respondent concludes "But as I mentioned at the beginning of this response, I still think Julia is nifty crazy wacko cool."

Ben, how does it feel knowing that so many men have penetrated "your" woman so recently? . . . Why settle for an aging crusty divorcee getabout?

"The admitted nature of the use of the domain names 
... includes alternative views and indeed critical 
views concerning ... [KwaSizabantu] and its activities. 
The Panel holds such activity amounts to tarnishing the 
activities associated with the trademark or service
mark "KwaSizabantu" ... . Therefore, ... [Rost] does not 
establish any rights or legitimate interests ..."

 


UDRP/WIPO Decision

CPT Comment

This site is sponsored by, and in support of, people damaged by New World Coffee Manhattan Bagel's Fraud in selling franchises. We will work indefinitely, using any legal means necessary, to achieve two goals: First, to obtain restitution for New World's victims.  Second, to punish agents of  New World and Manhattan Bagel responsible for these actions -- whether or not they are still affiliated with the company.

The Panelist does not understand, nor is he willing to accept, Respondent's concession that its domain name is identical to Complainant's service mark, for it is not when appropriate domain names are considered. This is because a domain name combination must include a top-level domain which can be "com.," "net.," "org.," "gov.," or "edu.," among others. . . . The top-level domain "org" customarily is in usage by non-profit or "miscellaneous" entities and not by a supermarket chain such as Complainant's.

In summary, it is apparent that Respondent separated from the Church of Scientology, whose founder and leader, L. Ron Hubbard, assigned all rights to the trademark SCIENTOLOGY to Complainant. On the other hand, Respondent is holding genuine rights in the German Book entitled "Scientologie - Wissenschaft von der Beschaffenheit und Tauglichkeit des Wissens" which seems to be sharing philosophical roots with the philosophy of L. Ron Hubbard. The copyrights and other rights in this book have been licensed to Respondent by Dr. Nordenholz's heirs, and these rights appear to be even older than Complainant's trademarks. Under these circumstances it cannot be said that Respondent has no right whatsoever and no legitimate interest in the Domain Name. In the contrary, to use the Domain Name as an international platform to disseminate information about Respondent's book and its underlying philosophy appears to be a legitimate interest in itself of Respondent. Accordingly, Complainant has failed to sustain its burden of proof in this respect.