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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Vishwa Nirmala Dharma a.k.a. Sahaja Yoga v. Sahaja Yoga Ex-Members Network and SD Montford

Case No. D 2001-0467

 

1. The Parties

The Complainant is Vishwa Nirmala Dharma a.k.a. Sahaja Yoga, 13901 Manor Way, Lynnwood, WA 98037, United States of America.

The Respondents are Sahaja Yoga Ex-Members Network, PF William Street, Sydney, NSW 2069, Australia and SD Montford, 10 Clermont Road, Brighton BN 16 SG, United Kingdom.

 

2. The Domain Name and Registrar

The Domain Name is <sahaja-yoga.org>.

The Registrar is Register.com.

 

3. Procedural History

The Complaint was received by WIPO by email and hard copy form on March 30, 2001. On April 6, 2001, WIPO issued a Complaint Deficiency Notification, the original Complaint having identified the first of the above-named Respondents, but not the second, who is the current registrant. The Amended Complaint ("the Complaint") was received by WIPO by email on April 11, 2001, and on April 12, 2001, in hard copy form. Extra copies of the Complaint were received by WIPO on April 20, 2001. WIPO has verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.

The Complaint was properly notified in accordance with the Rules, paragraph 2(a). The Registrar has confirmed that <sahaja-yoga.org> ("the Domain Name") was registered through Register.com. While SD Montford is recorded as being the current registrant, both parties have treated SD Montford as being another name for Sahaja Yoga Ex-Members Network and for the purposes of this decision, the Panel treats them as being one and the same. All references in this decision to "the Respondent" are references to the activities of Sahaja Yoga Ex-Members Network.

The Registrar has further confirmed that the Policy is applicable to the Domain Name.

On April 19, 2001, WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its Response to the Complainant and to WIPO was May 8, 2001. The Response was received by email on May 7, 2001, and in hardcopy form on May 8, 2001.

The Panel was properly constituted. The undersigned Panelists submitted Statements of Acceptance and Declarations of Impartiality and Independence.

No further submissions were received by WIPO or the Panel, as a consequence of which the date scheduled for the issuance of the Panel’s Decision is June 18, 2001.

 

4. Factual Background

The Complainant is an organisation which was founded on May 5, 1970. It is known as Sahaja Yoga. Sahaja Yoga as the term is used by the Complainant is not only its name, but also a method of meditation allegedly developed by the founder of the Complainant in 1970.

The Complainant seeks to teach Sahaja Yoga worldwide inter alia by way of its sahajayoga.org website.

The Respondent, as its name suggests, is an organisation comprising ex-members of the Complainant’s organisation. Its objective is to draw attention to what it sees as being very serious shortcomings of the Complainant. The Respondent registered the Domain Name on October 18, 1999.

The Complainant obtained a registration of the name SAHAJA YOGA at the United States Patent & Trade Mark Office on August 29, 2000 as a service mark in Class 41 for educational services, namely, conducting classes, workshops and seminars in the field of techniques of meditation, relaxation and self-improvement. The registration certificate is annexed to the Complaint. It indicates that first use was claimed from 1970 and first use in commerce from 1973.

Earlier this year prior to the launching of this Complaint there were exchanges of correspondence between the parties in which the Complainant demanded cancellation of the Domain Name. The Respondent refused to accede to the Complainant’s demands. The relevant factual details as set out in the complaint is as under:

That Vishwa Nirmala Dharma (Universal Pure Religion), also known as Sahaja Yoga, has been founded on May 5, 1970, by Her Holiness Shri Mataji Nirmala Devi Srivastava, the wife of a former eminent U.N. diplomat, who was the Secretary General of IMCO.

- The Complainant states that Sahaja Yoga is subject to a service mark registered on August 29, 2000 with the United States Patent and Trademark Office for educational services, namely conducting classes, workshops and seminars in the field of techniques of meditation, relaxation and self-improvement, in class 41.

- According to the Complainant, on a world-wide scale Sahaja Yoga is aiming at achieving, through the awakening of one's own residual subtle energy, called in Sanskrit "Kundalini", a complete physical, as well as emotional, psychical and spiritual inner transformation. Sahaja Yoga's new technique of spontaneous meditation is a unique answer to modern afflictions as stress, depression or psychosomatic diseases.

- Internet allows the Complainant, not only to inform about these positive inner transformation, but also to actualise it through a direct experience. This experience greatly contributes to a personal physical relaxation by reducing stress. Thus on April 10, 1997, the Complainant created the domain name "sAhajayoga.org" .

- It is the case of the Complainant that "sAhajayoga.org" is the Official website of Sahaja Yoga International. This website presents inter alia what is Sahaja Yoga, how meditation takes place and how is Sahaja Yoga different from other types of Yoga. It also describes briefly the experiences of "Kundalini" ("Awakening"), the "Self Realization" and the "Vibrations" that one can gain from the support of various photographs. Furthermore, a presentation of Shri Mataji Nirmala Devi, the founder of Sahaja Yoga, is made.

- That as Sahaja Yoga is subject to many seminars, workshops and programs conducted on a weekly basis around the world, "SAHAJAYOGA.ORG" website lists not less than thirty-six countries where Sahaja Yoga is practiced and through hyperlinks of which contacts may be established.

- The Complainant has also created hyperlinks and that most of the web pages of those hyperlinks are not more than an extension of SAHAJAYOGA.ORG, namely its national branches corresponding to the national websites for example "sahajayoga.org.br" for Brazil, "sahajayoga.org.canada" for Canada, "sahajayoga.org/Colombia/" for Colombia, "sahajayoga.org/finland/" for Finland, "sahajayoga.org/india/" for India, "sahajayoga.org/Ireland/ "for Ireland, "sahajayoga.org/norway/" for Norway, "sahajayoga.org/philippines/" for the Philippines, "sahajayoga.org/portugal/" for Portugal, "sahajayoga.org/sweden/" for Sweden, "sahajayoga.org.uk/" for the United Kingdom or "sahajayoga.org/usa/" for the United States.

- It is stated that through "SAHAJAYOGA.ORG" Sahaja Yoga information may be read in other languages such as Bulgarian (Bulgarski), Chinese (Zhong Wen), French (Français), German (Deutsch), Hebrew (Ivrith), Italian (Italiano), Japanese (Nippon), Portuguese (Portuguesa), Romanian (Romaneste), Russian (Ruskii), Slovakian (Slovensky), Spanish, (Español), Swedish (Sverige) and Turkish (Türkçe).

- The grievance of the Complainant is that the Respondent herein on October 18, 1999 i.e. more than eighteen months after the setting up of the Complainant's domain name "SAHAJAYOGA.ORG" created the domain name <sahaja-yoga.org>.

- According to the Complainant the alleged purpose of this website is to inform about the Sahaja Yoga organization and to report "nothing but the truth". But one shall note that it is also linked with a commercial website named "TRIPOD" which offers products for Internet homepages and more.

- The Complainant states that apart from the confusion entertained by this litigious domain name the construction of the First Respondent's website itself also tends to mislead internet users : like the official Web Site of Sahaja Yoga a photograph of Shri Mataji Nirmala Devi illustrates the welcome page; in addition, the summary of the various topics discussed under the heading "Navigate" is quite similar to the left column of the official website homepage. Moreover, the links related to "Critical Information on Sahaja Yoga in other languages" are graphically presented and organized in the same manner as the links to various countries mentioned in the Complaint.

- Another point which has been highlighted by the Complainant is that this "Ex-Members" website is totally anonymous : nowhere in said website can those Sahaja Yoga Ex-Members be identified; in addition, it flows from reading of the WHOIS database - which is to be relied upon given the First Respondent's own admission that the First Respondent's organization and administrative contact are labeled in a very vague and imprecise manner; its address is also vague in so far as it only gives the name of the main street in Sydney without giving any number; likewise, the First Respondent's telephone number is odd when bearing 7 x 7 numbers. Moreover, the First Respondent's e-mail contact is also impersonal. Lastly on the substance, it is to be observed that among the testimonies made by Ex-Members, not any single family name of individuals is mentioned.

- The Complaint further informs that under these circumstances, the Complainant - through the intermediary of its Swiss Association to which powers had been delegated wrote to the First Respondent on February 26, 2001, advising the latter that it would not tolerate any longer the use of the <sahaja-yoga.org> website which misleadingly attract visitors from the "SAHAJAYOGA.ORG" site and that a time-limit of three days was granted to Respondent to cancel the disputed domain name failing which necessary measures would be undertaken to defend the rights of the Sahaja Yoga organization.

- The Complainant received the first reply from the Respondent by e-mail dated February 28, 2001, candidly pointing out that "given that sahajayoga.org was already taken, sahaja-yoga.org was the obvious choice for an international non profit group whose central concern is Sahaja Yoga" and also declaring that "Sahaja Yoga has so many domain names and websites, surely you can tolerate some small measure of dissent on the Internet". The First Respondent finally concluded its Response by citing Article 19 of the Universal Declaration of Human Rights which sets out the right to freedom of opinion and expression.

- Acknowledging receipt of the First Respondent's above mentioned email, the Complainant advised the latter, both by registered letter and email dated March 1, 2001, that should the First Respondent not either transfer or cancel the domain name in dispute to the benefit of the Complainant, legal action would be undertaken before the competent authorities.

- The First Respondent answered on March 7, 2001, that it would not abandon its rights to use the domain name in dispute and that it would accept the decision to be rendered by the competent authorities.

- It is whereafter that the Complainant has preferred the present complaint.

 

5. Parties’ Contentions

A. Complainant

- The Complainant while referring to the provisions of para 4(a) of the Policy has contended that the forum has to decide the Complaint on the basis of statement and documents submitted before it and as per the Policy.

- The administrative proceedings that are instituted under the ICANN Policy, Rules and Supplemental Rules are not opening a forum for adjudicating intricate questions of law under a given municipal law; on the contrary they aim at eliminating various forms of flagrant misuses of the principle "first come first serve" for domain names registration (see e.g. Mutuelle d’Assurance du Corps de Santé Français v. SA CHA REBK LLC, WIPO Case No. D2000-0450, p. 4).

- The Complainant seeks the benefit of the registration, on August 29, 2000, by US Patent and Trademark Office, of SAHAJA YOGA as a service mark

- As mentioned above, the Complainant SAHAJA YOGA enjoys protection of a service mark delivered by the U.S. Patent and Trademark Office on August 29, 2000. It is contended by the Complainant that should the Complainant not be considered as benefiting from a trademark protection, it is entitled, nevertheless, to invoke such common law mark protection i.e. the existence of a right to a particular domain name does not presuppose a registered trademark..

- According to the Complainant by a mere comparison it is obvious that the Domain Name of the Respondent is identical and confusingly similar to the domain name of the Complainant. Even if the domain name is separated by a dash it still remains identical.

- Accordingly, the Complainant contends that in the instant case that <sahaja-yoga.org> is identical or, at least, confusingly similar to "SAHAJA YOGA" in which it is established that the Complainant has rights within the meaning of Paragraph 4(a)(i) of the Policy.

- Going forward for proving the fulfillment of other conditions of para 4(a) of the Policy the Complainant further contends that it has not granted any license or otherwise permitted the Respondent to use its service mark or to apply for a domain name incorporating said mark. To the contrary, the Complainant urged the First Respondent to cease to use the domain name <sahaja-yoga.org> which was refused.

- The First Respondent relied on its right of freedom of opinion and expression as laid down by Article 19 of the Universal Declaration of Human Rights.

- The Complainant has placed reliance on certain decisions of the Center i.e. Bridgestone Firestone, Inc. and al. v. Jack Myers, WIPO Case No. D2000-0190; Monty and Pat Roberts, Inc. v. Bill Keith, WIPO Case No. D2000-0299; Migros Genossenschaftsbund v. Centro Consulenze Kim Paloschi, WIPO Case No. D2000-1171.

- While accepting that it may be possible to contend that criticism and commentary may amount to fair use defence while exercising right of free speech but the same is subject to conditions which, according to the Complainant, have been succinctly set out in the Monty and Pat Roberts case cited in the complaint regardless "…as to the truth or falsity of the allegations of Respondent in so far as they relate to the quality or characteristics of Complainant's services […] the right to express one's views is not the same as the right to use another's name to identify one's self as the source of those views. One may be perfectly free to express his or her view about the quality or characteristics of the reporting of the New York Times or Time Magazine. That does not, however, translate into a right to identify one's self as the New York Times or Time Magazine" (WIPO Case No. D2000-0299, at p. 9).

- The Complainant further contends that as held in the Migros case, the Administrative Panel held that even if it "admitted that the aim of the website was to serve as a discussion forum, it is of the opinion that the exercise of the right of free speech does not require the use of Domain Name identical to the trademark of the Complainant. Respondent could have easily chosen a Domain Name which would indicate clearly to the public that the site is not Complainant's official website, but a discussion forum on Complainant's activities" (WIPO Case No. D2000-1171, at p. 5).

- The Complainant has further relied upon recent decision of the Center in the case of Women on Waves Foundation v. Chris Hoffman, WIPO Case No. D2000-1608. According to the Complainant, it has been held in this case that "whilst the Respondent is free to express his own opinion about the Complainant and its work he is not free to suggest that he is, in fact, the Complainant or somehow associated with the Complainant through the use to which he has put the Domain Name".

- Finally, in a earlier decision, a Panel, whilst acknowledging that shareholders or other interested parties had a right to voice opinions, concerns and criticism with respect to a listed company and that Internet constituted an ideal vehicle for such activities, found that the issue at hand was not as the Respondent seemed to contend, the freedom of speech and expression "but the mere choice of the domain name used to exercise this inalienable freedom of speech and expression" (Compagnie de Saint Gobain v. Com-Union Corp., WIPO Case No. D2000-0020, at p. 4); in addition, this Panel, pointing out that when registering the Domain Name the Respondent knowingly chose a name identical to the trademark of the Complainant, stated that "Respondent could have chosen a domain name adequately reflecting both the object and independent nature of its site, as evidence today in thousands of domain names" (same case).

- By using the Complainant's mark, the Respondent diverts part of Internet traffic to their own site, thereby potentially depriving the Complainant of visit by Internet users.

- Moreover, the fact that the Respondent's primary motive for establishing their website may be to criticize the Complainant does not insulate the Respondent from the fact that it is also offering, at least indirectly, products for sale at a website hyperlinked to their site : as described above under paragraph 22, "SAHAJA-YOGA.ORG" homepage is linked with a commercial website called "TRIPOD" which not only offers for sale various products in connection to the setting up of Internet homepages but also general shopping for all kind of products on sale through Internet.

- The Complainant submits, in addition, that the Respondent behaves with bad faith using a domain name of such similarity with the name of Sahaja Yoga, trying to capture potential seekers of spontaneous self realisation through Sahaja Yoga, not only leading the reader to confusion, but also giving a negative impression of Sahaja Yoga.

- That the Respondent, whoever it may be, has acted in bad faith in the registration and use of the domain name <sahaja-yoga.org> pursuant Paragraph 4(a)(iii) of the Policy and, in particular, within the scope of its Paragraph 4(b) (iii) and (iv).

B. Respondent

- While responding to the Complaint Respondent in its Response has contended that there are 116 registered gTLD domain names containing the word Sahaj or Sahaja which is the Sanskrit word for "spontaneous, natural, effortless" that has been used by third parties, spiritual and religious groups without limitation well before the Complainant decided to claim its ownership. As shown in the Encyclopedia Britannica, Sahaja Yoga is not a service mark owned by the Complainant, but the name of the religion founded by the Indian poet and mystic Kabir circa 1500. Kabir’s Sahaja Yoga was the forerunner of Sikhism as well as lesser-known Indian sects such as the Kabir Panthis and numerous Sant Mat sects such as the Radha Soamis.

- Not only is ‘Sahaja Yoga’ used as a name for the central practice of sects like the Radha Soamis that look back to Kabir, but it is also used as a name for the central practice of some Kashmiri Shaiva sects. Mrs. Srivastava founded Sahaja Yoga after meeting Swami Muktananda, a guru of the 1200 year-old Kashmiri Shaiva tradition who referred to his method as ‘Sahaja Yoga’.

- The Complainant is aware of Kabir being the originator of the name Sahaja Yoga. Therefore it cannot be claimed that the choice of the Sahaja Yoga denomination is or was accidental.

- Neither can Complainant justify the use of Sahaja Yoga as a result of Mrs. Srivastava's lineage or descent from the 500-year-old tradition, as she clearly claims the "Unique Discovery" in 1970.

- Respondent is firmly of the view that religious terms cannot be trade/service marked. The validity of the service mark registered by the Complainant with the United States Patent and Trademark Office can be challenged: Sahaja (i.e. "natural") and Yoga (i.e. "union" or "yoking") are generic names devoid of distinctiveness with respect of the service mark "Sahaja Yoga" these identify. In the same manner as Hatha Yoga, Raja Yoga, Karma Yoga or Kundalini Yoga, Sahaja Yoga is a generic name that should be used freely and cannot be monopolized. For this reason, Respondent will henceforward refer to Complainant's alleged «service mark» in brackets.

- It is clear that the Complainant chose to register the «service mark» in the United States and not in India, the country of origin, in an attempt to achieve registration successfully in a country where yogic traditions are relatively unknown. Such an attempt is interpreted by the Respondent as an abuse of the United States Patent and Trademark Office. Complainant commonly advertises its services by associating the word Yoga with other sanskrit/hindi qualificative terms, Nirmala (pure) and Maha (great). Allowing such trademark abuse, would logically authorize Complainant to claim ownership of most Yoga and meditation practices.

- Regarding the reason why the Complainant decided to register Sahaja Yoga more than 30 years after its alleged beginning in 1970, it is the Respondent's opinion that such a decision was recently made in the hope of obtaining legal means to silence the newly-created website of the Sahaja Yoga Ex-Members Network. The webmaster of the Complainant's www.sahajayoga.org, wrote in October 2000 "we want to assure everyone that we have started measures to protect the names we have been using and have been registering since Sahaja Yoga was started. It's really sad that we have to take action to protect the good name of Sahaja Yoga and it's aliases, but we are not going to roll over on this one!". Contrary to what the webmaster suggests, neither trade nor «service mark» on Sahaja Yoga had ever been registered prior to August 29, 2000.

- Complainant does not need another domain name reflecting its «service mark». The table below summarizes the status of domain names owned by the Complainant (gTLDs only, Respondent has decided to spare this arbitration the longer list of country domain names).

Domain name

Owner

Status (23.04.2001)

Exhibit

Sahajayoga.org

Complainant

Active

Exhibit D of Complaint

Sahaj-yoga.org

Complainant's representative in Romania

No active website

Exhibit 10 a

Sahaj-yoga.com

Complainant's representative in Romania

No active website

Exhibit 10 b

Sahaj-yoga.net

Complainant's representative in Romania

No active website

Exhibit 10 c

Sahaja.org

Complainant

No active website

Exhibit 10 d

Sahaja.com

Complainant

No active website

Exhibit 10 e

Sahaja-yoga.com

Complainant's representative in Australia

No active website

Exhibit 10 f

Sahaja-yoga.net

Complainant's representative in Australia

No active website

Exhibit 10 g

Sahaja-yogadot.com

Complainant's representative in Australia

No active website

Exhibit 10 h

Sahajayog.org

Complainant's representative in Romania

No active website

Exhibit 10 i

Sahajayoga.com

Complainant's representative in the U.K.

No active website

Exhibit 10 j

Sahajayoga.net

Complainant's representative in the Caribbean

Active

Exhibit 10 k

Sahajayogi.com

Complainant's representative in Romania

No active website

Exhibit 10 l

Sahajayogini.com

Complainant's representative in Romania

No active website

Exhibit 10 m

Sahajayogis.com

Complainant's representative in Romania

No active website

Exhibit 10 n

Sahajyog.org

Complainant's representative in Romania

No active website

Exhibit 10 o

Sahajyoga.net

Complainant's representative in Romania

No active website

Exhibit 10 p

- Out of the 16 owned domain names, only 2 domain names direct visitors to active websites. The 14 other are inactive, unused domain names. This clearly demonstrates Complainant's trivial need for an additional domain name and represents evidence of cyber monopolization of a domain name by the Complainant.

- In case Number: FA0006000094990, National Arbitration Forum, Minneapolis (Osho International Foundation v. Osho Dhyan Mandir and Atul Anand), a sole panelist ruled "To grant Complainant's request for relief would be to permit virtual monopolization on the Internet by Complainant of any domain name which includes the name of a great spiritual teacher and leader. While making no judgment on the relative merits or validity of the world's religions or spiritual movements or any leader thereof, this Arbitrator finds that permitting this would be as improper as doing the same with Christianity, Judaism, Islam, Zoroastrianism, Hinduism, Buddhism, Taoism, Confucianism, Shintoism or any of the several hundred other of the world's religions and/or spiritual movements. Neither The Lanham Act nor the ICANN Policy and Rules contemplate or intend such a result."

- Placing reliance on the above-mentioned decision the Respondent contends that it should be understood that even if the domain name <sahaja-yoga.org> is similar to Complainant's sahajayoga.org, the right to use a domain name containing the name of a religion should in no way be exclusive to the Complainant.

- The Respondent does not deem it necessary to ask permission from the Complainant to use the name of Sahaja Yoga, which existed 500 years before the Complainant decided to claim its ownership.

- The Respondent certainly never considered the disputed domain name to be essential to the manifestation of its human rights.

- The attempts by the Complainant to mislead the arbitration by dragging these proceedings into a "Human Rights in Domain-Name-Arbitration" debate is, in Respondent’s opinion, a manipulative effort to impute on the Respondent the wrong argumentation. In more familiar terms, the Complainant builds its case by making the Respondent say what the Respondent never said.

- The Respondent has again invited the attention of the Panel to the following portion of E-mail exchanges:

Complainant wrote: "As a consequence we, the Sahaja Yoga Association Switzerland ask you, the Sahaja-Yoga Ex-members Network to immediately remove all the content from you (sic) web site SAHAJA-YOGA.ORG."\

To which Respondent replied with a simple question:

"Are you disputing a domain name or our human rights? "

- It is contended by the Respondent that it should be clear to anyone reading the email exchange, that the aim of the Respondent in this simple question was to provoke the Complainant into admitting its intentions on their request "to remove all the content" from the website.

- Respondent’s domain name was not chosen to be identified as the Complainant's organization. The title of the Respondent's sahaja-yoga.org website, displayed in large characters, is self-explanatory and leads to no misinterpretation: "Sahaja Yoga: Facts and Warnings from Ex-Members"

- The Complainant's suggestion that the Respondent has indirect financial interest by the fact that the sahaja-yoga.org website is hosted by Tripod, a free web-space provider, is a far-fetched and altogether weak argument. In contradiction to the Complainant's statements, Tripod's banner only advertises free-web space and its own presence on the Web. In opposition to the Complainant's statements made in the complaint, the web provider's banner makes no mention of products or services for sale. By holding such views, Complainant challenges the integrity and existence in the internet of all non-profit associations without source of income, who benefit of free hosting services.

- With such views, the Complainant challenges the integrity of its own organization as at least one of its websites is hosted by Tripod (http://sahajbangalore.tripod.com/) and displays commercial banners.

- The Respondent's legitimate interest in the sahaja-yoga.org website is to provide information on Sahaja Yoga. Thanks to our thorough expertise on the subject, we provide the answers to questions that people concerned or interested by Sahaja Yoga cannot find in the Complainant's sahajayoga.org and other websites. We see our presence on the Web as a community service, allowing visitors to initiate direct e-mail contact with Sahaja Yoga ex-members, thereby benefiting from our many years experience and practice of Sahaja Yoga. Needless to say, our efforts are entirely free of charge.

- Respondent points out that in paragraph 41 of the Complaint, Complainant wrote: "When an internet user searches for Complainant's service mark, it may find - in addition to the Complainant's own official Website - the Respondents Website address. There is nothing in the domain name "sahaja-yoga.org" to indicate that the site is devoted to criticism of the Complainant". Complainant appears to be laboring under a misapprehension - search results show primarily the title of the found items, followed by a description and finally by the domain name, generally mentioned in smaller characters. Altavista's search instructions confirm: "In the ranking rules that determine which pages will appear near the top of a list of matches, the HTML title is the most important element of the page." The HTML title of the Respondent's website allows no misunderstanding and is contradicting evidence to Complainants allegations that the Respondent indulged into misleading and diverting visitors to their site: <TITLE>Sahaja Yoga: Facts and Warnings from Ex-Members</TITLE>

- The Complainant associates these free-of-charge informative services with an attempt by the Respondent to tarnish the Complainant's «service mark», Sahaja Yoga. As shown in our replies to the various email correspondence prior to these administrative proceedings, the Respondent repeatedly encouraged in good faith the Complainant to report any inaccuracies found in the Respondent's website. Furthermore, manifesting its openness to constructive criticism, the Respondent's website provides a link to a discussion forum where all opinions on the Sahaja Yoga subject are shared. Moreover, the Respondent proposed on different occasions to Sahaja Yoga officials the mutual linking of both websites. Unfortunately the Complainant has chosen to ignore Respondent's invitations. The Respondent's aim, to the sole benefit of the people interested by Sahaja Yoga, is to go beyond the Complainant's restricted information. After inviting the Complainant to constructive criticism, Respondent should not be held responsible for the consequences caused by Complainant's lack of transparency and unwillingness to engage in a constructive exchange.

- Respondent has demonstrated its rights and legitimate interest in the Domain Name, in accordance with ICANN Policy's paragraph 4c.

- The disputed domain name was registered by the Respondent on October 18, 1999 nearly a year before the Complainant's «service mark» registration on August 29, 2000.

- The Respondent's domain name <sahaja-yoga.org> was not acquired with the aim of making financial profit, nor has the Respondent engaged in a pattern of conduct preventing the Complainant from reflecting its «service mark's» presence in the many other domain names the Complainant has chosen.

- The Respondent has never advertised his <sahaja-yoga.org> domain name in a way that would be misleading to internet users. In newsgroups, e-mail and advertising material, whenever mentioned, not only is the domain name always followed by its html title, but the textual background clearly, and without room for misunderstanding, anticipates the website's contents.

- Respondent also points out that in paragraph 26 of the Complaint, Complainant correctly qualifies as candid our "good-faithed" disposition in this matter: the <sahaja-yoga.org> domain name was chosen as the available choice for the ex-members' non-profit organization aiming to inform on the subject of Sahaja Yoga. The Respondent is making a legitimate non-commercial, community service-oriented and fair use of the Domain Name. The Respondent's aim, to the sole benefit of the people interested by Sahaja Yoga, is to provide a larger spectrum of information than is available on Complainant's websites alone.

- According to Respondent paragraph 49 of the Complaint says more about the Complainant's beliefs than the Respondent considers necessary to debate in these administrative proceedings. Apologizing to the Panel for being drawn into responding to what is not strictly relevant to the domain name dispute and that failing to do so might be interpreted as an acceptance of the Complainant's allegations.

- Vishwa Nirmala Dharma, Complainant, proposes much more than is described in its «service mark» i.e. "conducting classes, workshops and seminars in the fields of techniques of meditation, relaxation and self improvement". As it has been its policy for the past 30 years, Complainant deliberately omits to convey that the purpose of their teachings and meditation techniques is to get the individual, through an elaborate and, in our opinion, manipulative belief system, to reach the conclusion that Ms Srivastava, alias Shri Mataji Nirmala Devi, (Venerable Great Mother and Immaculate Goddess), is the Creator of the Universe, and that total surrender to her is the uncompromising condition for reaching spiritual enlightenment. A belief system which is in complete contradiction to the original Sahaja Yoga.

- As a result, the Complainant, Vishwa Nirmala Dharma and its alleged «service mark» Sahaja Yoga, finds itself listed as a "dangerous, apocalyptic cult" in different parliamentary reports of European countries.

- Sahaja Yoga deliberately prevents newcomers from accessing the very information that can irreversibly affect their lives. Ex-members legitimately wish to fill in those blanks, which are of the highest importance to any person interested in Sahaja Yoga.

- Complainant's allegations as to the intentional similarity of websites are simply absurd and, in our opinion, reflect the lack of arguments to comply with condition 4(a)(iii) of ICANN Rules (bad faith). Indeed there are similarities between the Respondent's website and that of the Complainant: the same similarities with hundreds of thousands of websites containing frames, indexes, "What's new" menus and flags for different languages. If such similarities had been intentionally created to "lead the reader into confusion" (paragraph 49 of the Complaint), why would the Respondent be so inconsistent in its deception as to name, in bold and central text the self-explanatory title: "Sahaja Yoga: Facts & Warnings from Ex-Members" ?

- In paragraph 45 of the Complaint, Complainant claims that the registration of the disputed domain name was made in bad faith, merely because of the Respondent's home address not bearing a number to the street, nor an accurate telephone number. Complainant's representative has certainly not been made aware of the different legal threats, letters of insult and intimidation, death threats and more recently computer viruses the Respondent has been receiving since its website's creation. These justify the Respondent's legitimate measures of self-protection. To understand the context of this litigation, it should be known that the individual initiatives of Sahaja Yoga ex-members to inform the public via leaflets or through the media have been followed by legal harassment or, in a specific case, threats of physical violence.

- On the subject of anonymity (paragraphs 24 and 46 of the Complaint), in the context of exiting a dangerous cult, it is understandable that most ex-members behind the website agreed to submit their testimonials and reports to the website on the condition that their identities remain unknown. As the website is the result of a collective effort, to avoid a minority of identified individuals being held responsible for the entire website, it has been the Respondent's policy to protect its informants under the veil of anonymity. Ex-members are entirely free, however, to expose their identity when replying to people addressing the Ex-members network via e-mail.

- Complainant's correspondence to the Respondent shows that it knows who the people participating to the Respondent's website are: Complainant wrote "even though we know most of these people who are writing these false articles against Sahaja Yoga and their motives behind it, Shri Mataji has asked us not to mention their names". To make an issue about anonymity is more evidence of the Complainant's dearth of arguments to demonstrate bad faith.

- Based on the above, Respondent is convinced that these administrative proceedings are one more proof of the Complainant's strategy of harassment, with the final aim as stated in their e-mail of February 26, 2001, to obtain the removal of the Respondent's website contents.

- Complainant already owns 17 similar domain names out of which only 2 are active. Needless to say, other than its content, there is no evidence of interest for the Complainant to own an 18th domain name with its «service mark».

- Moreover, the following similar domain names do not belong to the Complainant. We have contacted their owners: None appear to be subject to domain name litigation procedures initiated by the Complainant.

Domain name

Owner

Exhibit

Sahajyoga.com

Chandrakant Shukla, Datta Yoga Mission

18 a

Sahajyoga.org

Datta Sahaj Dhyan Foundation

18 b

Sahaj.org

The Temple of Life - Sahaj Temple

18 c

Sahaja.net

The Temple of Life - Sahaj Temple

18 d

Sahaj.com

Parveen Narang - Trade Contacts

18 e

Sahajyog.com

Sahaj Yog - Delhi

18 f

- The above domain names belong to the Complainant's "direct competition", the type of spiritual groups that Complainant has repeatedly characterized as "devilish false gurus".

- That the Complainant shows no concern in allowing 15 dead links to its "service mark", and in not challenging other similar domain names, reveals the falsehood and inconsistency of the concern expressed in paragraph 41 of the Complaint. Beyond the legalese, beyond the far-fetched claims of bad faith and other weak argumentation, Complainant's only intention is to prevent access to a critical voice, using the same ways and means as most fanatical modern cults.

- The purpose of the ICANN Policy is to prevent the misuse of the domain name system by so-called cybersquatters interested in financial gain. The Respondent has clearly shown, well before these proceedings, that money played no role in the choice of the disputed domain name. It is the Respondent's belief, that the ICANN Policy is being misused by the Complainants to reach its final goal of silencing a critical website.

- Respondent therefore states that there is no demonstrated evidence of registration and use in bad faith of the disputed domain name.

 

6. Discussion and Findings

General

According to paragraph 4(a) of the Policy, the Complainant must prove that

(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered and is being used in bad faith.

In the light of the Complainant’s attack leveled at the Respondent on the grounds that the Respondent has filed false or incomplete information as to its identity and address with the registrar, the Panel cannot ignore the point. Had the Panel been persuaded that the Respondent’s purpose had been to make this administrative procedure more difficult to administer, it might have weighed with the Panel when considering the question of bad faith.

However, the Respondent has satisfied the Panel that that was not its purpose. Furthermore, to the extent that information was incomplete, it has not interfered with the administration of this Complaint. It has not interfered with the communications between the parties or indeed between the parties and WIPO.

Further, in the view of the majority of the Panel, before going into the discussion and findings on the various issues, it is of utmost importance to appreciate and answer the basic question whether an exclusivity and monopoly can be given to any individual or a body, organization or society etc. in relation to the name and concept in public domain, namely, <sahajayoga>.

The literature on the concept of "Sahajayoga" indicates that this concept perhaps came into existence from the Sahajayani Buddhist (who in their turn inherited it from the Mahayana-Vajra Aiana Bhuddhist tradition) and also from Tantrie Hattayoga and the Nathpanthi-Kanpathayogis.

`Sahaj' is originally a Sanskrit word which means ‘having been born together’ and thus something inwardly perceived or intuited along with one’s birth as a human being – a sort of indwelling mystical principle of divine perception given to man as his birthright and therefore, a natural and effortless heritage of divinity ingrained in humanity.

The concept "Sahajayoga" is also related to saint Kabir. He adopted neither Hinduism nor Islam as his religion but incorporated what he regarded as the best tenets of both and created his own, called "Sahaj-yoga" ("simple union"). From the Hindus, Kabir took reincarnation, for instance, and from the Muslims, the belief in one God.

This concept of taking tenets of both the religions i.e. Hinduism and Islam which was the theme of saint Kabir’s (Sahajayoga), Guru Nanak, founder of Sikhism accepted and adopted the concept of Sahajayoga in Sikhism. The ordinary meaning of Sahaj is "just in what it should be" or "just". According to Guru Nanak ‘Sahaj’ means natural fulfilment.

Thus, the word ‘Sahajyoga’ is not only a descriptive Sanskrit word but is also a concept dating back to Buddhism adopted by saint Kabir and then also taken up by Guru Nanak in Sikhism. Accordingly, ‘Sahajayoga’ is such a common term having descriptive meaning, becoming an important religious concept which has not come into existence recently or in the year 1970 when the Complainant adopted it. It would not, therefore, be permissible that any single person, body, entity, organization or a society who can either claim or would be entitled for grant of an exclusivity or monopoly on these words and concept of Sahajayoga.

In the majority view of the Panel, the discussion and findings on the legal issues should now be considered in this background and perspective.

Identical or confusing similarity

First the Complainant has to prove that it has rights in a trade mark or service mark. Secondly, it has to show that the Domain Name is either identical to that trade mark or service mark or is confusingly similar to it.

The majority view of the Panel is that the dates are important. The domain name by Respondent was registered on October 18, 1999. The registration of the service mark by the Complainant with US Trade Mark and Patent Office is dated August 29, 2000. The Complainant has proved that it has a service mark registered at the United States Patent & Trade Mark Office. The Respondent has leveled a substantial attack on the validity of that registration, but the Panel cannot look behind the registration. It is ill-equipped to do so. However, under these circumstances, it would be just and fair to consider the challenge of the Complainant to the registration of the disputed domain name of the Respondent as on the date of its registration i.e. October 18, 1999.

The Complainant being conscious of this position has given a fall back argument that in case the registration of its service mark is not to be given weight the registration of the disputed domain name of the Respondent, admittedly registered on October 18, 1999, then the Complainant would certainly be entitled to claim common law rights and plead passing off.

There is sufficient force in this argument of the Complainant. In the majority view of the Panel, it is a well established position in Common Law countries that registration of any mark does not confer any new right upon the registrant. It only give a statutory recognition to the rights of a person, which he already possesses, in and/or in relation to any mark. It has been further judicially accepted that in an action for passing off by a plaintiff, even the registration which is being held by the defendant may not be a defence. Accordingly, even when it is accepted that the Complainant is justified in claiming Common Law right protection, it becomes imperative to find out whether the Complainant is entitled to claim monopoly and/or exclusivity in the term and concept "SAHAJA YOGA"

The Policy does not call for registered rights. Unregistered or common law rights will suffice. It is not in dispute that the Complainant has used the name Sahaja Yoga since 1970. That the Respondent acknowledges that it is the name of the Complainant and the name by which the Complainant is known and recognised is evident from the manner in which the Respondent uses the name Sahaja Yoga on its website and indeed in its own name.

The Panel finds that the domain name of the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has some rights but which cannot be exclusive.

Rights or legitimate interest of the Respondent

Once the Panel (by a majority) has arrived to the conclusion that the term and concept "SAHAJA YOGA" is completely descriptive and in which no person would be entitled to claim exclusivity, the contention of the parties would deserve to be considered in the light of this conclusion. Since the Complainant would not be entitled to claim exclusivity, the following contentions raised by the Respondent will gain strength and legitimacy:

(i) Since "SAHAJA YOGA" is descriptive falling in common domain name and which existed at least 500 years before the Complainant decided to claim its ownership, the Respondent was not obliged to seek any permission from the Complainant.

(ii) Respondent's domain name was not chosen to be identified as the Complainant's organisation. The title of the Respondent's - "Sahaja Yoga: Facts and Warnings from Ex-Members" is self-explanatory and leads to no misinterpretation.

(iii) The allegation of the Complainant that the Respondent has indirect financial interest by the fact that the sahaja-yoga.org website is hosted by Tripod, a free web-space provider, is a far fetched argument inasmuch as Tripod's banner only advertises free-web space and its own presence on the web. By raising such contention the Complainant not only challenges the integrity and existence in the internet of all non-profit association without source of income, who benefit from free hosting services but the Complainant also challenges the integrity of its own organisation as at least one of its websites is hosted by Tripod and displays commercial banners.

(iv) The Respondent's legitimate interest in its website is to provide information on Sahaja Yoga. It provides the answer to the question that people concerned or interested by Sahaja Yoga cannot find it in other websites including the website of the Complainant. Its services are free of charge.

(v) The Respondent repeatedly encourages in good faith the Complainant to report any inaccuracies found in the Respondent's website. Further more, manifesting its openness to constructive criticism, the Respondent's website provide a link to a discussion from where all opinions on the Sahaja Yoga subject are shared.

By a majority, the Panel, therefore, finds that the Respondent has legitimate interest in the disputed domain name.

Bad Faith

Ordinarily, what constitutes bad faith falls to be determined by reference to paragraph 4(b) of the Policy which reads:

"b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have 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; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."

None of those sub-paragraphs is apt to embrace what the Respondent has done. There is no suggestion so far as sub-paragraph (i) is concerned that the Respondent registered the Domain Name primarily for the purpose of selling it. There is no suggestion that the Respondent has registered the Domain Name in order to block the Complainant within the meaning of sub-paragraph (ii). So far as sub-paragraph (iii) is concerned, the Respondent can hardly be said to be a competitor of the Complainant. Sub-paragraph (iv) calls for commercial gain and the Respondent is not actuated by any profit motive.

However, the Panel is not tied to the terms of paragraph 4(b). That list is non-exclusive.

The fact that whether a particular domain name is registered for commercial gain may not be conclusive for determining bad faith. Subject to the conclusion of the Panel that the Complainant is not entitled for its exclusivity, there would also be no doubt that registering a domain name comprising the Complainant’s name and with the deliberate intent of attracting to one’s website people wishing to visit the Complainant and with a view to causing damage to the Complainant, if done for commercial gain, would constitute bad faith registration and use within the meaning of paragraph 4(a)(iii).

The Complainant has referred to the decision in Monty and Pat Roberts, Inc. v. Bill Keith WIPO Case No. D2000-0299, in the case of Time Magazine WIPO Case No.D2000-0299 and also in the case of Women on Waves Foundation v. Chris Hoffman, WIPO Case No. D2000-1608, in support of its contention that the Respondent would not be justified in claiming right of free speech and expression. These judgements would not support the case of the Complainant who is not entitled to claim exclusivity in the term and concept of Sahaja Yoga. In this regard the reliance of the Respondent on the judgement in case No. FA0006000094990, National Arbitration Forum, Minneapolis (Osho International Foundation v. Osho Dhyan Mandir and Atul Anand), would be relevant wherein a sole panelist ruled "To grant Complainant's request for relief would be to permit virtual monopolization on the Internet by Complainant of any domain name which includes the name of a great spiritual teacher and leader. While making no judgment on the relative merits or validity of the world's religions or spiritual movements or any leader thereof, this Arbitrator finds that permitting this would be as improper as doing the same with Christianity, Judaism, Islam, Zoroastrianism, Hinduism, Buddhism, Taoism, Confucianism, Shintoism or any of the several hundred other of the world's religions and/or spiritual movements. Neither The Lanham Act nor the ICANN Policy and Rules contemplate or intend such a result.

It is however useful to refer to at least two cases of the WIPO Center in which a view has been taken that adoption of an identical domain name on the website for a bonafide criticism does not amount to bad faith registration. These two cases are :

A. TMP Worldwide Inc. v. Jennifer L. Potter - Case No. D2000-0536

B. Bosley Medical Group and Bosley Medical Institute, Inc. v. Michael Kremer - Case No. D2000-1647

TMP Worldwide Inc. v. Jennifer L. Potter

In this case i.e. TMP Worldwide Inc. v. Jennifer L. Potter, the Complainant was found to be the leading yellow pages advertising agency in the world who was co-ordinating the placement of advertisements in a large number of directories nationally, providing ancillary creative and direct marketing services to its clients. The dispute had arisen in relation to domain names – "tmpworldwide.net" and "tmpworldwide.org". The Complainant TMP, as was contended, owns the domain names "tmp.com" and "tmpworldwide.com".

The Respondent Jennifer Potter was the sole officer and shareholder of ‘A Silver Spoon Adoptions, Inc. Silver Spoon was a client of TMP’s Yellow Pages advertising divisions. TMP had filed an Arbitration Demand with the American Arbitration Association seeking a payment of claim being advertising fee for Yellow Pages from Potter and Silver Spoon. The arbitrator gave an award in favour of TMP. The Supreme Court of the State of New York also gave a judgment against Silver Spoon and the Superior Court of California entered judgment against Silver Spoon on the Arbitration Award.

Subsequently, Potter registered the above-mentioned two disputed domain names and began to distribute via e-mail a letter to Fortune 500 companies entitled "Is TMP an HONEST Company.???? In this letter, Potter complained that TMP badly mishandled her Yellow Pages advertising account and noted the devastating impact of the Arbitration Award on her business and on her personality.

The Panel on consideration of the contentions raised on behalf of the parties concluded that Respondent is making a noncommercial use of the domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the marks at issue, within the meaning of paragraph 4.c.(iii) of the Policy. The principal, if not sole, purpose of Respondent’s Web site, the Panel holds, appears not to be for commercial gain, but, rather, to exercise her First Amendment right to criticize Complainant and comment on her experiences in dealing with the Complainant. The Panel further held that as the legislative history surrounding passage of the "Anticybersquatting Consumer Protection Act" indicates, use of a mark in a domain name where the Internet site involves commentary, comparative advertising, criticism, parody, or news reporting is beyond the scope of the law. The Panel, therefore, held that the Complaint made is also beyond the scope of the Policy.

In this case, the Panel considered another decision of the Center in Bridgestone Firestone, Inc., Bridgestone/Firestone Research, Inc. and Bridgestone Corp. v. Jack Myers, Case No.D2000-0190, wherein the Panel had refused to order the transfer of the domain name ‘bridgestone-firestone.net’ which was registered by a former Bridgestone employee who used the site to publicize his ongoing dispute with Bridgestone over his pension payments. The Panel had ruled in that case that such use constituted legitimate noncommercial use and fair use under the Policy.

Bosley Medical Group and Bosley Medical Institute, Inc. v. Michael Kremer

In this case, the Complainant is a world leader in providing medical hair restoration. The dispute had arisen when the Respondent registered the domain name ‘boslemedical.com’.

The contention of the Complainant was that this domain name is identical to the Complainant’s trade mark. The Complainant has common law trade mark rights and that they have applied for registration of the mark with the U.S. Patent & Trade Mark Office. It was contended by the Complainant that their mark is well known by virtue of the act that Bosley had been providing goods and services for 26 years and its mark has been advertised extensively. Respondent was well aware of this mark having had three hair replacement procedures performed by one of Bosley Medical Group’s doctors.

The Complainant had further contended that the Respondent has no right or legitimate interest in the domain name. The Respondent sued his doctor and Bosley Medical Group and "has engaged in disruptive and threatening behaviour towards the Complainant and individual doctors employed by the Complainants. The Complainants also stated that letters allegedly sent by Respondent to Bosley representatives ‘threatening to publish negative articles and information about Complainants on the Web site’. It was further contended that there was failure to use the domain name by the Respondent which shows that it was registered to keep them from using it and to "intimidate or threaten Complainant and their employees with its use".

The Complainant while citing the WIPO Center’s decision in – Estee Lauder Inc. v. estelauder.com, estelauder.net and Jeff Hanna, WIPO Case No. D2000-0869 for the contention that if a Respondent intended to use the domain name for a Web site to criticize complainants, such a use would not constitute a legitimate noncommercial or fair use under Para 4.c.(iii) of the Policy were the domain name is identical or confusingly similar to a Complainant’s mark. The Complainant further contended that the registration by the Respondent is in bad faith for the purpose of disrupting Complainant’s business. The further contention of the Complainant was that even if Respondent was to establish the Web site it has threatened to establish under domain name, its registration and use of domain name would still be in bad faith because use of a Web site to tarnish or criticize a Complainantt is bad faith within paragraph 4 (b) of the Policy. After consideration of the contentions raised on behalf of the Complainant and the Respondent in this case, the Panel referred to provisions of paragraph 4 (c) of the Policy. It came to the conclusion that the evidence in the case demonstrated that the Respondent has legitimate right or interest in the domain name. The contention of the Respondent that he has registered the site to make information regarding Bosley Medical more widely accessible, without any intent for commercial gain was held to be clearly a fair use. In coming to this conclusion, the Panel referred to the decisions in the case of :

(a) Compusa Management Company v. Customized Computer Training, NAF No.A0006000095082 (holding that Respondent has a First Amendment right to offer criticism of goods and services offered by the complainant).

(b) TMP Worldwide Inc. v. Jennifer L. Potter , Case No. D2000-0536

(c) Bridgestone Firestone, Inc., Bridgestone/Firestone Research, Inc.and Bridgestone Corp. v. Jack Myers, Case No.D2000-0190.

The Panel declined to accept the argument of the Complainant that registering a domain name which is confusingly similar to its mark with the intention of criticising the Complainant is not a fair use but a violation of Para 4 (c)(iii) of the Policy. The reliance of the Complainant on the decision in Estee Lauder’s case was also held to be of no use to the Complainant inasmuch as in that case it was found by the Panel that the Respondent had a commercial purpose behind its site criticizing the Complainant, i.e., to gain clients for its product liability practice.

The Panel also declined to accept the contention of the Complainant that the broad definition of "competitor" will include not only commercial or business competitors, but anyone acting in opposition to another. The Panel also came to the conclusion that the ICANN domain name proceedings were intended to provide a swift and inexpensive remedy for cybersquatting, not to provide trademark holders with a monopoly over every permutation of their marks in domain names or a weapon to employ against domain name registrants exercising legitimate free speech and fair use rights. Accordingly, the Panel decided that the claim of the Complainant for transfer of the domain name "bosleymedical.com" was denied.

In the present case, the disputed domain name has been registered by the ex-members of the Complainant who, as a perusal of the record reveals, are attempting to give their experiences. The Panel, however, is neither concerned with nor is intending to refer to that material being adverse to the Complainant in any manner whatsoever. However, it appears to be a position that the use of the disputed domain name by the Respondent is for a noncommercial use intending to be a fair commentary/criticism.

Under these circumstances, the majority view of the Panel is that the case of the Respondent would certainly get support from the decisions of the Center in the above-mentioned two cases :

1. TMP Worldwide Inc. v. Jennifer L. Potter. Case No. D2000-0536

2. Bosley Medical Group and Bosley Medical Institute, Inc. v. Michael Kremer. Case No. D2000-1647.

Therefore, the majority view of the Panel being that there is no doubt that the Complainant is not entitled for any monopoly or exclusivity in the name ‘SAHAJAYOGA’, the Panel (by a majority) is inclined to accept the case of the Respondent that its domain name, namely, <sahaja-yoga.org>, identical and/or confusingly similar, would be protected and in any case, cannot be held to be a registration in bad faith.

 

7. Decision (by a majority)

In view of the above, the Complaint is dismissed.

 


 

Richard Hill
Panelist

Maninder Singh
Panelist

Dated: June 16, 2001

 

 

Dissenting Opinion of the Presiding Panelist

The majority of the Panel has been expressly (and, in my respectful opinion, erroneously) influenced by what it sees as the weakness of the Complainant’s trade mark/service mark rights. The "background and perspective" against which I come to my conclusions are that in this particular case:

1. the Complainant has a trade mark/service mark registration for its name – whether or not the registration should have been granted is not a matter that the Panel can sensibly investigate.

2. that registration was granted on the basis of claimed use in commerce dating back to 1973. On the face of it therefore, and on the balance of probabilities, the Complainant has common law rights in its name developed over a period of nearly 30 years. The Respondent comprises ex-members of the Complainant organization, who are well aware of the history of the Complainant.

3. contrary to the finding of the majority, I do not regard the name Sahaja Yoga as "completely descriptive". It is plain from the Respondent’s own name, Sahaja Yoga Ex-Members Network, and from the website to which it has connected the Domain Name that it almost invariably uses the name Sahaja Yoga to indicate the Complainant. Were the name Sahaja Yoga "completely descriptive" as found by the majority, the Complainant could not have any trade mark/service mark rights in the name, the content of the Respondent’s website would be meaningless and the Respondent’s name would also be meaningless. In reality and in the context of this dispute, Sahaja Yoga as used by the Respondent accurately and unambiguously identifies the Complainant, the organization the Respondent seeks to criticize.

4. while the Respondent may very well have a legitimate interest in criticizing the Complainant by way of the internet, that is a very different thing from having a legitimate interest in respect of the Domain Name.

5. the Respondent has known all along that the Domain Name is identical (apart from a hyphen and the .org suffix) to the Complainant’s name, which has been in use since 1970 (see the Respondent’s website), and is identical (apart from a hyphen) to the Complainant’s domain name, which was registered eighteen months before the disputed domain name.

6. the whole rationale behind the Respondent’s registration of the Domain Name is based on the fact that it is the name of the Complainant, not that of the Respondent. Had the domain name in issue been <ex-sahajayoga.org> or <anti-sahajayoga.org>, the situation would have been different.

In light of the above, I take the view that the Domain Name is clearly identical or confusingly similar to a trade mark or service mark in which the Complainant has rights. I also take the view that the Respondent has no rights or legitimate interests in respect of the Domain Name.

As to bad faith, while I do not for one moment question the bona fides of the members of the Respondent organization and while I am prepared to accept that what they are doing they are doing in the belief that it is for the greater good, that is not necessarily an answer under the Policy.

For guidance as to what constitutes bad faith under the Policy a starting point is Paragraph 4(b), which sets out four examples, but it is only a starting point. It is not an exhaustive list.

I reject the Complainant’s claim that what the Respondent is doing falls within the terms of any of the examples in paragraph 4(b) of the Policy. Specifically, in my view there is no evidence to suggest that what the Respondent is doing is for commercial gain.

However, had the Respondent been acting for commercial gain, there is no question in my mind that it would have fallen foul of paragraph 4(b)(iv), which reads:

"(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."

What the Respondent has done has been to take the Complainant’s name, which is not its own name, to connect to a website which is intended to cause damage to the Complainant. In taking the Complainant’s name for that purpose, it is inevitable that a significant (as opposed to insignificant) proportion of visitors to the site will make the visit under the misapprehension that the site is the site of the Complainant. That is a deceit. The majority view is that that deceit can be ignored because once the visitor has arrived at the site, it is plain that the site cannot have the support of the Complainant. My point is that by then the damage will have been done. People interested in the Complainant will have been deceived into visiting the Respondent’s site and, if the Respondent’s aims prevail, those visitors will read the content of the website and be deterred from having anything further to do with the Complainant.

I do not accept that that constitutes a good faith use of the domain name system. To permit this type of activity to continue will act as an encouragement to all non-commercial pressure groups to register names, which do not belong to them with a view to exerting pressure on the true owner of the name and by way of a deception.

In my opinion the Domain Name was registered in bad faith and is being used in bad faith. In my view the Complaint should have succeeded.

 


 

Tony Willoughby
Presiding Panelist

Dated: June 16, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-0467.html

 

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