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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bruce Springsteen -v- Jeff Burgar and Bruce Springsteen Club
Case No. D2000-1532
1. The Parties
The Complainant is Bruce Springsteen whose address is given as c/o Parcher, Hayes & Snyder, 500 Fifth Avenue, 38th Floor, New York, NY 10110, USA ("Bruce Springsteen").
The Respondent is Jeff Burgar and Bruce Springsteen Club of PO Box 2570, 4901 51st
Avenue, High Prairie AB, TOG 1EO, Canada ("Mr Burgar").
2. The Domain Name and Registrar
The domain name at issue is <brucespringsteen.com>. The Registar is Network Solutions Inc of 505 Huntmar Park Drive, Herndon, Virginia VA 20170, USA.
3. Procedural History
Complaint was filed by email and hard copy on 7 November and 9 November 2000 respectively. The relevant notification procedures were then complied with.
Notification of the complaint was submitted to the Respondent on 21 November 2000, and a response by email and hard copy was received on 10 December and 20 December 2000 respectively.
The Respondent failed to state its preferred candidates for the three member Panel. This deficiency was notified on 13 December 2000 and rectified by a reply on 15 December 2000.
The Panel has been duly appointed and the Panelists have submitted a Statement of Acceptance and Declaration of Impartiality and Independence. The language of the proceeding is English.
4. Factual Background
The Complainant is the famous, almost legendary, recording artist and composer, Bruce Springsteen. Since the release of his first album in 1972 he has been at the top of his profession, selling millions of recordings throughout the world. As a result, his name is instantly recognisable in almost every part of the globe. There is no assertion made on behalf of Bruce Springsteen that his name has been registered as a trade mark but he rather relies upon common law rights acquired as a result of his fame and success.
The domain name at issue was registered by Mr Burgar apparently on 26 November 1996 according to the Who-Is search at exhibit 1 to the complaint.
In the submitted complaint, Bruce Springsteen’s representatives do not identify when they became aware of the registration, but the date of their Who-Is search was 6 November 2000.
It appears that the domain name at issue was registered under the name "Bruce Springsteen Club" with Mr Burgar identified as the administrative point of contact.
There does not appear to have been any correspondence between the representatives of Bruce Springsteen and Mr Burgar prior to the commencement of these proceedings by the filing of the complaint on 7 November 2000.
5. The Parties’ Contentions
Representatives of Bruce Springsteen have succinctly addressed the requirements under the UDRP and commented as follows.
In relation to the issue of "identical or substantially similar" marks, they have asserted the common law rights of Bruce Springsteen in his name and drawn analogy with previous cases, for example, the "Julia Roberts" case to support their contention.
In relation to the question of whether Mr Burgar has any right or legitimate interest in the name, they indicate that no permission was given by Bruce Springsteen for the name to allow the domain name at issue to be used. They point out that Mr Burgar has never been known as "Bruce Springsteen", and assert that the use of the name creates a misleading impression of association which is not based in fact.
In relation to the issue of bad faith, Mr Springsteen’s representatives point to the fact that Mr Burgar is the owner of around 1,500 names, and that many of those names, including the domain name at issue, take the internet user to his own site, "celebrity1000.com". They therefore point to the fact that this constitutes bad faith under paragraphs 4(b)(ii) and (iv) of the UDRP.
They further assert that he has registered this domain name, and others, using a fictitious name. In this case the fictitious name is "Bruce Springsteen Club".
Bruce Springsteen’s representatives rely heavily on authorities, and produce copies of a number of previous decisions and court cases which they believe to be relevant.
Mr Burgar, on his own behalf, has produced a substantial response, far in excess of the guideline size for such responses set out in the WIPO rules. It is easy to understand his desire to make a point, but it does substantially increase the workload of the Panelists who have to wade through a large volume of material. For the purposes of this section, the Panel will refer only to that part of Mr Burgar’s submission which relates specifically to the three requirements under the UDRP.
In relation to the question of identicality of name, Mr Burgar says that Bruce Springsteen’s representatives have given no evidence of any common law rights. He points to the fact that the name has already been registered in a domain name, namely "brucespringsteen.net" and, that his use does not besmirch or denigrate the name of Bruce Springsteen to any extent.
He refers to other websites which feature the name in question, including, for example, "artistplace.com/brucespringsteen".
He also claims in relation to this heading that there has been and can be no confusion.
In relation to the question of rights or legitimate interests, he counters the statement of Mr Springsteen’s representatives by saying that there was no suggestion that permission is needed from Bruce Springsteen or anyone in relation to the registration of a domain name. He uses, for the first time, an analogy with magazines, indicating that 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. He asserts that the internet is of a similar nature.
He refers to the habits of internet users, and the relative unlikelihood that they would be typing in the full domain name, namely "brucespringsteen.com", and that if they did so they would be sufficiently sophisticated users to understand that the disclaimer contained on his site indicates that it is not an "official" Bruce Springsteen site.
He avers that he does not operate this domain name for profit or gain, and indeed has made none, and that he is not misleadingly directing people to his site.
In relation to the question of bad faith, he says that there has been no evidence submitted that he intended to stop Bruce Springsteen from registering the domain name "brucespringsteen.com" himself. He points to the fact that the domain name "brucespringsteen.net" has been registered by Mr Springsteen’s record company for some years and that, presumably, that should have sufficed.
In relation to the question of fictitious names, he denies that he owns 1,500 celebrity names, and that any of them have been registered in a fictitious name pointing out that he personally is identified as the administrative contact in relation to all the domain names which he has registered.
In relation to paragraph 4(b)(iv) of the UDRP, he denies that he has "intentionally attempted to attract, for commercial gain, internet users to his website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of his website". He points to the nature of the internet and the volume of sites available, to indicate that it is most unlikely that confusion could have occurred in the minds of an internet user. He asserts that confusion is a necessary factor in paragraph 4(b)(iv).
He repeats his analogy regarding magazines, and refers to the fact that he has over 200 "mini sites" accessible from his principal site, "www.celebrity1000.com".
He points out that he now has a working functioning website at the domain name in issue in these proceedings.
6. Panel’s Findings
Under paragraph 4 of the UDRP, the Complainant’s burden is to prove in relation to the complaint, that:-
(i) The domain name at issue is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered as being used in bad faith.
The Complainant must prove that each of these three elements are present in order to make out a successful case.
The first question to be considered is whether the domain name at issue is identical or confusingly similar to trade marks or service marks in which the Complainant has rights.
It is common ground that there is no registered trade mark in the name "Bruce Springsteen". In most jurisdictions where trade marks are filed it would be impossible to obtain a registration of a name of that nature. Accordingly, Mr Springsteen must rely on common law rights to satisfy this element of the three part test.
It appears to be an established principle from cases such as Jeanette Winterson, Julia Roberts, and Sade that in the case of very well known celebrities, their names can acquire a distinctive secondary meaning giving rise to rights equating to unregistered trade marks, notwithstanding the non-registerability of the name itself. It should be noted that no evidence has been given of the name "Bruce Springsteen" having acquired a secondary meaning; in other words a recognition that the name should be associated with activities beyond the primary activities of Mr. Springsteen as a composer, performer and recorder of popular music.
In the view of this Panel, it is by no means clear from the UDRP that it was intended to protect proper names of this nature. As it is possible to decide the case on other grounds, however, the Panel will proceed on the assumption that the name Bruce Springsteen is protected under the policy; it then follows that the domain name at issue is identical to that name.
It is a clearly established principal that the suffix ".com" does not carry the domain name away from identicality or substantial similarity.
The second limb of the test requires the Complainant to show that the domain name owner has no rights or legitimate interests in respect of the domain name. The way in which the UDRP is written clearly requires the Complainant to demonstrate this, and the mere assertion that the Respondent has no such rights does not constitute proof, although the panel is free to make reasonable inferences. That said, a Respondent would be well advised to proffer some evidence to the contrary in the face of such an allegation. Paragraph 4(c) of the UDRP sets out specific circumstances to assist the Respondent in demonstrating that he or she has legitimate rights or legitimate interests in the domain name. The circumstances are stated to be non-exclusive, but are helpful in considering this issue.
Dealing with each in turn as follows:
(i) The first circumstance is that, before any notice of the dispute to the Respondent, the Respondent had shown demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services. In this case, there is no suggestion that the domain name <brucespringsteen.com> had in fact been used in this way prior to notification of the complaint. Instead, the domain name resolved to another website belonging to Mr Burgar, namely "celebrity1000.com".
(ii) The second circumstance is that the Respondent has "been commonly known by the domain name, even if he has acquired no trade mark or service mark rights". This is much more problematic. Mr Burgar would say that the domain name at issue was registered in the name of "Bruce Springsteen Club" and consequently that the proprietor of the domain name has "been commonly known by the domain name" as required in the UDRP. The question in this case involves the meaning of the words "commonly" and "known by".
(iii) It is hard to say that the mere use of the name "Bruce Springsteen Club" can give rise to an impression in the minds of internet users that the proprietor was effectively "known as" Bruce Springsteen. It is even more remote that it could be said that the proprietor was "commonly" recognised in that fashion. Accordingly the Panel finds that this circumstance in paragraph 4(c) is not met.
The third circumstance is that the Respondent is "making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trade mark or service mark at issue".
There are a number of concepts contained within this "circumstance" which make it a complex issue to resolve. For example, at what point does use of a domain name become "commercial" or alternatively what amounts to "fair use" since those concepts appear to be in the alternative.
An internet search using the words "Bruce Springsteen" gives rise to literally thousands of hits. It is perfectly apparent to any internet user that not all of those hits are "official" or "authorised" sites. The user will browse from one search result to another to find the information and material which he or she is looking for in relation to a search item, in this case the celebrity singer Bruce Springsteen. It is therefore hard to see how it can be said that the registration of the domain name at issue can be "misleading" in its diversion of consumers to the "celebrity1000.com" website.
There have been examples in other cases of blatant attempts, for example, by the use of minor spelling discrepancies to entrap internet users onto sites which have absolutely no connection whatsoever with the name which is being used in its original or slightly altered form. In this case, the internet user, coming upon the "celebrity1000.com" website would perhaps be unsurprised to have arrived there via a search under the name "Bruce Springsteen". If the internet user wished to stay longer at the site he or she could do so, or otherwise they could clearly return to their search results to find more instructed material concerning Bruce Springsteen himself.
Accordingly, it is hard to infer from the conduct of the Respondent in this case an intent, for commercial gain, to misleadingly divert consumers. There is certainly no question of the common law rights of Mr Springsteen being "tarnished" by association with the "celebrity1000.com" website. The Panelists’ own search of that site indicates no links which would have that effect, for example connections to sites containing pornographic or other regrettable material.
Accordingly the Panel finds that Bruce Springsteen has not satisfied the second limb of the three part test in the UDRP.
Moving on to the question of bad faith, once again the UDRP contains helpful guidance as to how the Complainant may seek to demonstrate bad faith on the part of the Registrant. The four, non-exclusive, circumstances are set out in paragraph 4(b) of the UDRP, and can be dealt with as follows:-
(i) The first circumstance is that there is evidence that the Registrant obtained the domain name primarily for the purpose of selling, renting or otherwise transferring it to the Complainant or to a competitor. This can be dealt with swiftly. There is simply no evidence put forward by the Complainant that there has been any attempt by Mr Burgar to sell the domain name, either directly or indirectly.
(ii) The second circumstance is that the Registrant obtained the domain name in order to prevent the owner of the trade mark or service mark from reflecting that mark in a corresponding domain name, provided that there has been a pattern of such conduct. In this case, Bruce Springsteen’s representatives point to the many other celebrity domain names registered by Mr Burgar as evidence that he has indulged in a pattern of this conduct.
However, Mr Burgar is clearly experienced in the ways of the internet. When he registered the domain name at issue in 1996, he would have been well aware that if he had wanted to block the activities of Bruce Springsteen or his record company in order to extract a large payment, or for whatever other reason there may be in creating such a blockage, he could, at nominal cost, have also registered the domain names <brucespringsteen.net> and <brucespringsteen.org>. He did not do so, and indeed subsequently in 1998 Mr Springsteen’s record company registered the name <brucespringsteen.net> which has been used as the host site for the official Bruce Springsteen website since that time. It appears in the top five items in a search on the internet under the name "Bruce Springsteen".
It is trite to say that, by registering the domain name at issue, the Registrant has clearly prevented Bruce Springsteen from owning that name himself. However, that does not have the effect required in paragraph 4(b)(ii) of the UDRP. That paragraph indicates that the registration should have the effect of preventing the owner of a trade mark or service mark from reflecting the mark "in a corresponding domain name". In these circumstances what is meant by the word "corresponding"? Nothing that has been done by Mr Burgar has prevented Bruce Springsteen’s official website at <brucespringsteen.net> being registered and used in his direct interests. That is surely a "corresponding domain name" for these purposes, as the expression "corresponding domain name" clearly refers back to the words "trade mark or service mark" rather than the domain name at issue referred to in the first line of paragraph 4(b)(ii).
It is perhaps pertinent to observe that the so-called "official" site at <brucespringsteen.net> was registered in 1998. It seems unlikely that, at that time, the existence of the domain name at issue did not become apparent. Whilst this is pure surmise, and consequently in no way relevant to the findings of the Panel, it might be thought that the alleged "blocking" effect of the domain name at issue might have given rise to a complaint at that time, if only in correspondence.
This Panel believes that previous Panels have all too readily concluded that the mere registration of the mark, and indeed other marks of a similar nature, is evidence of an attempt to prevent the legitimate owner of registered or common law trade mark rights from obtaining a "corresponding domain name". This is an issue which should be looked at more closely, and for the purposes of this complaint, the Panel finds that the "circumstance" in paragraph 4(b)(ii) does not arise for the purpose of demonstrating bad faith on the part of the Registrant.
(i) The third circumstance is that the Registrant has obtained the domain name "primarily for the purpose of disrupting the business of a competitor". This can be dealt with very swiftly as there is no suggestion that that is the case in the present complaint.
(ii) The fourth circumstance is that, by using the domain name, the Registrant has "intentionally attempted to attract, for commercial gain, internet users to his website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website or location or of a product or a service on the website or location".
Once again, this sub-paragraph contains a number of concepts which render it complex to analyse and apply. However, the key issue appears to be the requirement that the use of the domain name must "create a likelihood of confusion with the Complainant’s mark". As indicated above, a simple search under the name "Bruce Springsteen" on the internet gives rise to many thousands of hits. As also indicated above, even a relatively unsophisticated user would be clearly aware that not all of those hits would be directly associated in an official and authorised capacity with Bruce Springsteen himself, or his agents or record company. The nature of an internet search does not reveal the exact notation of the domain name. Accordingly, the search result may read "Bruce Springsteen - discography", but will not give the user the exact address. That only arises on a screen once the user has gone to that address. The relevance of this is that it is relatively unlikely that any user would seek to go straight to the internet and open the site <brucespringsteen.com> in the optimistic hope of reaching the official Bruce Springsteen website. If anyone sufficiently sophisticated in the use of the internet were to do that, they would very soon realise that the site they reached was not the official site, and consequently would move on, probably to conduct a fuller search.
Accordingly, it is hard to see that there is any likelihood of confusion can arise in these circumstances.
The name of the Registrant is not shown in an internet search, accordingly the fact that the Registrant in this case is "Bruce Springsteen Club" would not have the effect of giving rise to the sort of confusion which might satisfy the test under paragraph 4(b)(iv).
The Panel therefore finds that none of the circumstances in paragraph 4(b) of the UDRP are met in this case.
Paragraph 4(b) makes it quite clear that the four "circumstances" are non-exclusive. In this case, the Complainant has urged the Panel to find bad faith on the grounds of the use of the "fictitious" name "Bruce Springsteen Club" as the Registrant. It may be that there is some element of bad faith in the conduct of Mr. Burgar in registering in the name of "Bruce Springsteen Club". However, on reflection, the Panel does not believe that it is sufficient to satisfy the necessary burden under the UDRP.
Before moving onto the final decision, it is perhaps appropriate in a case of this complexity and profile, that the Panel should briefly consider the authorities which have been referred to, in particular by the Complainant.
Bruce Springsteen’s representatives referred to the court decision in the "Northern Lights case" as evidence of the conduct and consequently the bad faith of Mr Burgar. The written decision appended to the complaint is inconclusive, and contains no valid decisions on contested items of evidence such as the allegations that certain conversations took place which are denied by either party to the case in different circumstances. Accordingly, the Panel cannot read anything of significance into that decision.
There have been a number of cases concerning celebrity names, some of which were referred to in this case. Many of those decisions are flawed in some way or another.
The case of Jeannete Winterson -v- Mark Hogarth (WIPO case number D2000-0235) has been credited with establishing the principle that common law rights can arise in a proper name. The case is also noteable for an erroneous interpretation of the third requirement, namely the demonstration of bad faith. There is an indication in the case that the burden falls on the Registrant to demonstrate that the domain name at issue has been used in good faith. That is clearly not the case, and that confusion appears to have knocked on into other cases, for example the Julia Roberts case. The burden is clearly with the Complainant to demonstrate that bad faith has been shown.
In the case of Julia Fiona Roberts -v- Russell Boyd (WIPO case number D2000-0210) the question of "permission" arises. In relation to the question of "rights or legitimate interests" it is stated that "Respondent has no relationship with or permission from Complainant for the use of her name or mark". As indicated above, that is simply irrelevant. It is perfectly clear from general principles protecting registered and unregistered trade marks the world over, and indeed from the UDRP, that whilst permission might be conclusive against an allegation of infringement if it can be shown to have been granted, the absence of permission is not conclusive that an infringement has occurred, nor is it conclusive proof that the alleged infringer has no rights of his or her own.
Further, in the Julia Roberts case, there is a suggestion that the registration of the domain name <juliaroberts.com> "necessarily prevented the Complainant from using the disputed domain name". As indicated above, that is not sufficient to meet the criteria required under the URDP for the relevant circumstance in paragraph 4(b).
The case of Daniel C Mario Jnr -v- Video Images Productions (WIPO case number D2000-0598) contains a passage highlighted when annexed to the complaint in this case in the following terms:-
"in fact, in light of the uniqueness of the name <danmarino.com>, which is virtually identical to the Complainant’s personal name and common law trade mark, it would be extremely difficult to foresee any justifiable use that the Respondent could claim. On the contrary, selecting this name gives rise to the impression of an association with the Complainant which is not based in fact."
This Panel contends that that assertion is erroneous. For all the reasons set out above, the users of the internet do not expect all sites bearing the name of celebrities or famous historical figures or politicians, to be authorised or in some way connected with the figure themselves. The internet is an instrument for purveying information, comment, and opinion on a wide range of issues and topics. It is a valuable source of information in many fields, and any attempt to curtail its use should be strongly discouraged. Users fully expect domain names incorporating the names of well known figures in any walk of life to exist independently of any connection with the figure themselves, but having been placed there by admirers or critics as the case may be.
Accordingly, in all the circumstances the Panel does not believe that Bruce Springsteen has met the necessary criteria to sustain a complaint under the URRP.
In light of the foregoing, the Panel decides that although the domain name at issue is identical to the un-registered trade mark of the Complainant, the Registrant has demonstrated that he has some rights or legitimate interests in respect of the domain name, and the Complainant has failed to demonstrate that the domain name was registered and has been used in bad faith.
Accordingly, the Panel orders that the registration of the domain name be left as it stands.
Gordon D. Harris
A. Michael Froomkin
Dated: 25 January, 2001
Bruce Springsteen v. Jeff Burgar and Bruce Springsteen Club
Case No. D2000-1532
Paragraph 4(a)(i) of the UDRP requires a Complainant to show the existence of "a trade mark or service mark in which Complainant has rights." The majority has presumed (and should have concluded) that the personal name "Bruce Springsteen" has acquired distinctive secondary meaning giving rise to common law trademark rights in the "famous, almost legendary, recording artist and composer, Bruce Springsteen."
The majority notes that no evidence was presented to establish secondary meaning. Complainant alleges in paragraph 14 of the Complaint, without contradiction by the Respondent, that:
Complainant is an internationally renowned and critically acclaimed composer, lyricist, recording artist, singer, musician and performer. He has been a professional singer and musician since 1964. His first album, "Greetings from Asbury Park N.J." was released to the public in 1972. Since that time, millions of copies of his recordings have been sold throughout the world. He has received numerous awards recognizing the quality of his compositions and recordings, including multiple Grammies and an Oscar. As a result of the foregoing, Complainant’s name has acquired secondary meaning, has come to be recognized by the general public as indicating an association with the Complainant, and is the source of enormous goodwill towards the Complainant. Accordingly, Complainant has common law trademark rights in his name. See, e.g., Julia Fiona Roberts v. Russell Boyd,WIPO Case No. D2000-0210, May 29, 2000 ("Roberts")(Annex 3); Daniel C. Marino, Jr. v. Video Images Productions, WIPO Case No. D2000-0598, August 2, 2000 ("Marino")(Annex 4); Rita Rudner v. Internetco Corp., WIPO Case No. D2000-0581, August 3, 2000 ("Rudner")(Annex 5); Helen Folsade Adu, known as Sade v. Quantum Computer Services Inc., WIPO Case No. D2000-0794, Sep. 26, 2000 ("Sade")(Annex 6).
In addition, the majority later notes that "an internet search using the words ‘Bruce Springsteen’ gives rise to literally thousands of hits. Therefore, secondary meaning has been adequately shown.
Regardless of commentary that personal names (presumably without secondary meaning) are not protected, the language of paragraph 4(a)(i) does not exclude any specific type of common law trademarks from protection. The majority further concludes that the disputed domain name is identical with the common law mark. Therefore, Complainant has met the requirements of paragraph 4(a)(i).
Paragraph 4(a)(ii) requires a Complainant to show Respondent has no rights or legitimate interest in the disputed domain name. Although the way in which the UDRP is written requires the Complainant to demonstrate this, the logic of this burden of proof is questionable in that it requires the Complainant to prove the nonexistence of certain facts. In effect the assertion by Complainant that Respondent has no rights in the mark, through permission or consent of the Complainant or otherwise, is sufficient to shift the burden to Respondent.
Paragraphs 4(c)(i)-(iii) describe the nonexclusive circumstances which may be used to prove that Respondent has rights or legitimate interest in the disputed domain name. The majority bases its decision on a finding that Complainant has failed to disprove 4(c)(iii). This circumstance allows Respondent rights or legitimate interest upon a showing of noncommercial or fair use without misleading diversion of customers. Specifically, the majority finds that Respondent has not misleadingly diverted customers to Respondent’s website www.celebrity1000.com. The majority assumes that the internet user will search literally thousands of hits on "Bruce Springsteen" without going directly to <brucespringsteen.com> and without concluding that "brucespringsteen.com" resolves to a website sanctioned by Complainant. Apparently the Presiding Panelist conducted his independent search in this manner and concludes that a hypothetical internet user would search in the same manner. This is an insufficient basis to conclude that resolution of the domain name <brucespringsteen.com> into Respondent’s website www.celebrity1000.com is not misleading.
The Dissenting Panelist concludes that the average internet user would not sift through thousands of hits searching for information on Bruce Springsteen. Instead, the internet user would devise shortcuts. One obvious shortcut is to go directly to <brucespringsteen.com> with the expectation that it would lead to the official website. Respondent alludes to the phenomenon that "postponing the creation of other Tld’s until the ‘.com’ name space dominated the world just sort of happened." The dominance of the ".com" name space is reflected in the common usage of the phrase ".com" as being synonymous with commercial activity on the Internet. Given a vast array of information on the performer Bruce Springsteen, the internet user is more likely than not to associate <brucespringsteen.com> with commercial activity and with an official domain name, resolving to an official website. Therefore, the Dissenting Panelist concludes that that resolution of the domain name <brucespringsteen.com> into Respondent’s website www.celebrity1000.com is misleading.
Complainant has alleged that Respondent has no rights or legitimate interest in the disputed domain name, through permission, consent or otherwise. Respondent has not presented sufficient evidence that any of the circumstances in paragraph 4(c)(i)-(iii) is present. Therefore, Complainant has made the necessary showing under paragraph 4(a)(ii).
Paragraphs 4(b)(i)-(iv) describe the nonexclusive circumstances which may be used to prove that Respondent has registered and used the disputed domain name in bad faith. Complainant relies on paragraphs 4(b)(ii) and (iv) to demonstrate Respondent’s bad faith. Proving either of these two circumstances is sufficient. Paragraph 4(b)(iv) requires Complainant to prove that Respondent has intentionally attracted internet users to Respondent’s website for commercial gain by creating a likelihood of confusion as to the source of the website.
The majority reiterates its analysis that internet users will not be confused by resolution of the <brucespringsteen.com> domain name to Respondent’s website and have no expectation of finding an official website. The Dissenting Panelist has already concluded to the contrary.
The remaining element under paragraph 4(b)(iv) is to show that Respondent is engaged in a commercial undertaking. Respondent states in his Response that: "…given the hundreds of millions of dollars presently lost by companies such as Amazon and Infospace on the Internet, we are not ashamed to say, we do not have any commercial gain. We lose money." The test of a commercial undertaking is not that the enterprise turns a profit. From Respondent’s statements, the Dissenting Panelist infers that the activities of respondent are commercial. Therefore, the circumstances of paragraph 4(b)(iv) are met.
The Dissenting Panelist would rule that Complainant has met his burden and that the disputed domain name should be transferred.
Richard W. Page
Dated: January 25, 2001