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WIPO Arbitration and Mediation Center

Complainants are Denie Hiestand, an individual residing in Marina Del Rey, California, U.S.A., and Health & Integrity Corp., a corporation of the Bahamas, controlled by Hiestand.

Respondents are Rita Lambrose Segur, an individual residing in Sylvania, Ohio, and Body Electric, Inc., a corporation located in Colville, Washington, U.S.A.

The domain names at issue are <electricalnutrition.com>, <electricalnutrition.net>, and <electricalnutrition.org> (the "Domain Names").

The registrar is Network Solutions, Inc., in Herndon, Virginia, USA.

This action was brought in accordance with the ICANN Uniform Domain Name Dispute Resolution Policy, dated October 24, 1999 ("the Policy") and the ICANN Rules for Uniform Domain Name Dispute Resolution Policy, dated October 24, 1999 ("the Rules").

Complainants submitted its complaint in this proceeding on January 20, 2001. Segur submitted a Response on February 20, 2001, and a supplemental filing on

February 23, 2001. Complainants' Reply was submitted on March 2, 2001.

WIPO Arbitration and Mediation Center appointed Mark V.B. Partridge as panelist on March 14, 2001.

In rendering this decision, I note that Respondent Body Electric, Inc. has not submitted a formal response, although Segur has submitted a statement from the owner of Body Electric. In addition, I have reviewed and considered the supplemental submissions of the parties.

Complainant Hiestand claims that he coined the phrase "Electrical Nutrition" and began using that name in 1996 in connection with seminars, speeches and other education services in the field of nutrition. According to representatives of Avena Originals Marketing Systems Ltd., Hiestand lectured on the "theme of Electrical Nutrition" and used that phrase in promotional materials at least as early as October, 1997.

The earliest media reference to "Electrical Nutrition" in the materials submitted by Complainants appears in a article about Hiestand dated April 19, 1998, stating "he is in the process of completing his next book 'Electrical Nutrition'."

Hiestand claims that he gave a copy of his book "Electrical Nutrition" to Dan Clausing, the owner of Body Electric, Inc., a multi-level marketing company, in late 1997 or early 1998. Mr. Clausing acknowledges meeting with Hiestand, but has submitted a statement claiming that Clausing's business used the phrase "Electrical Nutrition" at least as early as 1996, prior to his meeting with Hiestand.

Respondent Segur, a distributor of Body Electric products registered the domain name <electricalnutrition.com> on August 14, 1998. When Heistand learned of this registration, his wife contacted Segur to explain Heistand's prior use and interest in the name. After that conversation, Segur registered the domain names <electricalnutrition.net> and <electricalnutrition.org>.

On February 23, 2000, Segur filed an application to register ELECTRICAL NUTRITION as a trademark in connection with "alternative health education including print materials, ebook, and telephone consultation to assist in my self-owned ebook sales and promotion of Body Electric, Inc." The initial application claimed first use by Segur of February 28, 2000, but was later amended to claim first use on

August 14, 1998.

Settlement discussions between the parties proved unproductive. During those negotiations Segur transferred <electricalnutrition.com> to Respondent Body Electric, Inc.

Hiestand contends that he owns trademark rights in the phrase "Electrical Nutrition", that the Domain Names are identical to his mark, that Respondents have no rights or legitimate interests in the Domain Names, and that Segur registered and used the Domain Name in bad faith.

Segur denies Complainants' claims and contends that Complainants' evidence of use shows generic use of the term and is insufficient to create rights. Segur also claims that Respondent Body Electric has not paid her for transfer of the <electricalnutrition.com> domain name. She therefore asks that it be transferred back to her. That request is not properly before this panel and will not be further addressed.

To obtain relief under the ICANN Uniform Domain Name Dispute Resolution Policy, Paragraph 4(a) of the Policy requires the Complainant to prove each of the following:

(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) that the respondent has no rights or legitimate interest in the domain name; and

(iii) that the domain name has been registered and used in bad faith.

This case turns on whether Complainants can establish prior trademark rights in the phrase ELECTRICAL NUTRITION.

The alleged mark is not the subject of any trademark registration. Nevertheless, enforceable trademark rights can arise from use without registration. The materials submitted by Complainants show public use of "Electrical Nutrition" as a title for Hiestand's book as early as April 19, 1998. A statement submitted by Mel Tarry and Frank Reglin, of Avena Originals Marketing Systems Ltd., in Canada and Las Vegas, claims Complainant used the phrase "Electrical Nutrition" at least as early as October, 1997. In any event, the materials submitted, with one exception, show use of "Electrical Nutrition" as the title of a single book.

U.S. Courts generally require a showing of secondary meaning to establish trademark rights in the title of a single book. See Heirs of the Estate of Jenkins v. Paramount Pictures Corp., 90 F.Supp. 2d 706 (E.D.Va. 2000). Relevant proof of secondary meaning generally includes evidence of sales volume, advertising expenditures, consumer surveys and media recognition.

In this case, Heistand has failed to submitted adequate evidence of secondary meaning, also known as acquired distinctiveness. He has not submitted any evidence of sales or advertising, or any consumer surveys. The evidence of media recognition and isolated instances of promotion appear insufficient to establish enforceable rights.

Complainants' claim of right is also undercut by materials using "Electrical Nutrition" in a generic or merely descriptive fashion. For example, the statement of Tarry and Reglin asserts that Hiestand's lectures "involved this whole theme of Electrical Nutrition." A news article in the Tri-City Herald about Hiestand states "He'll also be discussing what he calls 'electrical nutrition'." Finally, it appears that Respondent, Body Electric, distributed materials in 1996 stating "Everything your body needs for balanced electrical nutrition." Whether or not the phrase is generic (and there is insufficient evidence in the record to make that finding), these uses undermine Complainant's claim of exclusive trademark rights.

The intent of a junior user is sometimes considered as evidence of secondary meaning. Here, it is not first clear whether Segur had knowledge of Heistand's use of Electrical Nutrition when she registered the domain name. The registration is suspicious, however, because Segur has provided no credible reason for registering it. Moreover, her statements about the phrase are inconsistent. In one instance, she claims the term is generic, but in another she asserts that it is a trademark by seeking registration on her own behalf. It is especially troubling that she registered the remaining domain names <electricalnutrition.org> and <electricalnutrition.net> shortly after her telephone conversation with Hiestand's wife about Hiestand's interest in the phrase. These actions are indicative of a bad faith motive in registering the domain name. Nevertheless, Respondent was not prohibited from adopting the name "Electrical Nutrition", if Complainant had not established trademark rights at the time, and registration of a domain name that matches a name in which another has an interest is not a violation of the Policy if the other person lacks rights.

Based on the record in this case, I find that Complainants have failed to satisfy the requirements of Paragraph 4(a)(i) of the Policy. The evidence submitted is insufficient to establish prior, enforceable rights in the phrase Electrical Nutrition. Since that is a necessary element of the claim, it is not necessary to resolve the factual disputes on the other elements of the claim before rendering a decision.

I conclude that Complainants have failed to prove that the Domain Names are identical or confusingly similar to a mark in which they have rights. Therefore, I find in favor of Respondents and deny Complainant's request for transfer of the <electricalnutrition.com>, <electricalnutrition.net> and <electricalnutrition.org> Domain Names.

Mark V B Partridge
Sole Panelist

Dated: March 29, 2001