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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amy Miller and On Line Creations Inc. v. Domain4Sale@Visto.com/Amymiller.com
Case No. D2001-1071
1. The Parties
The Complainants are Amy Miller and On Line Creations Inc., both of 8070 La Jolla Shores Drive, PMB 345, La Jolla, CA 92037, USA.
The Respondent is named as mailto:Domain4Sale@Visto.com Amymiller.com., 1477 Glengarry Avenue, London, Ontario. Canada, this being the Registrant listed in the Network Solutions' Whois Database on July 30, 2001
2. The Domain Name and Registrar
The domain name at issue is <amymiller.com>, registered with Network Solutions Inc of Herndon, Virginia 20170, USA from January 4, 2000.
3. Procedural History
(1) The Complaint in Case D2001-1071 was filed in hardcopy on August 28, 2001, and an Amended Complaint on September 10, 2001. This was notified to the Respondent on September 14, 2001.
(2) The WIPO Arbitration and Mediation Center has stated that:
- the Amended Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules for the Uniform Domain Name Dispute Resolution Policy (UDRP);
- payment for filing was properly made;
- the Amended Complaint complies with the formal requirements;
- the Amended Complaint was properly notified in accordance with the Rules, paragraph 2(a);
- a Response to the Complaint was filed in due time; and that
- the Administrative Panel was properly constituted.
As Panelist, I accept these statements.
(3) As Panelist, I submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
(4) The date initially scheduled for issuance of a decision was November 12, 2001.
(5) No extensions have been granted or orders issued in advance of this decision. However, the Complainants asserted that they did not receive the Reponse from the Respondent in due time and they inquired about the possibility of making a further submission once they had seen the Response. In these circumstances, time was allowed until November 17, 2001, for the making of such a submission, without any undertaking in advance that it would be admitted; and corresponding time was allowed until November 22, 2001, for the Respondent to reply to any such submission. In the event no submission was received from the Complainants.
(6) The language of the proceedings is English.
4. Factual Background
(1) The Complainant, Amy Lynn Miller, is a model and actress. She states in an attested affidavit that the Complainant, One Line Creations Inc, is her attorney in fact for exploiting her name, image and likeness on the Internet and worldwide web.
(2) The Complainants first informed the Respondent of their objections to its registration of the domain name at issue on June 2, 2001, eliciting an email response from the Respondent on June 6, 2001, and various email exchanges thereafter to which reference is made below.
5. Parties’ Contentions
The Complainants assert the following:
(1) that the Complainant, Amy Miller, is "a model of world renown", her reputation as "a stellar beauty" arising out of appearances in magazines, advertising, films and live promotions. In promoting and advertising her name and likeness, she has expended great time and effort.
(2) The goodwill associated with this reputation is protected in the United States as a common law service mark and is further supported by privacy and publicity rights under the law of various states in that country.
(3) The Respondent's use of Amy Miller's name in the domain name in dispute causes her irreparable harm.
(4) The Respondent has no rights or legitimate interest in the domain name at issue. It has no licence or consent to use the first Complainant's name and it does not use the domain name as any part of its legal name, corporate name or other identifier. Further evidence of this derives from the Respondent's conduct as outlined in the next paragraph.
(5) The domain name at issue was registered and is being used in bad faith in that
- the associated webpage states: "This domain was acquired by a cyber-squatter. Model4Hire.com is currently attempting to negotiate turning this domain name into an official or authorized site" (printout for July 30, 2001, as annexed to Complaint);
- Model4Hire.com expired as a registration on March 3, 2000, through non-renewal and the URL address, Model4Hire.com, has no content;
- the Respondent is attempting to benefit from the First Complainant's name by offering users an e-mail account with the company, Visto – apparently the Respondent has an arrangement with Visto whereby the Respondent benefits when users sign up with Visto;
- the Respondent's e-mail address, Domain4Sale, indicates that it has registered the disputed domain name for the purpose of selling it for valuable consideration;
- the Respondent did not obtain the domain name at issue from a cyber-squatter, there being no identifiable decision concerning it.
(6) Evidence of the Respondent's bad faith also arises from its e-mail answer to the Complainants' offer to pay USD1,000 for transfer of the domain name at issue to them. This answer consisted of a counter-offer to sell the domain name for USD1,000 plus a $10million penalty clause if an official Amy Miller site appears on any other domain than <amymiller.com>; and a further counter-offer that the payment should be CanD 4,342.14 and be made together with a transfer from the Complainants to the Respondent of "all domain names of famous people you own but are not the authorized representatives".
In summary, the Respondent asserts the following:
(1) It is an organisation of individuals formed to acquire domain names from cybersquatters in order to transfer them to the "real 'Amy Miller' ", once she has been found. It has accordingly sought to name as "third parties" to these proceedings (1) an Amy Miller who started her modelling and acting career in 1989 with appearances in "Baywatch" and "Power Rangers: Lost Galaxy" but who has not otherwise been identified; and (2) Modelvortex.com, a website name associated, like the Respondent, with 1441050 Ontario Inc. which has the same address as the Respondent.
(2) The reputation and rights in "Amy Miller" which the Complainants assert actually belong to this other Amy Miller.
(3) The Complainants are seeking to misappropriate the reputation and rights of another person in a way which will be damaging to her, since she is not a soft core porn actress or model, while the first Complainant is.
(4) The second Complainant has falsely created the impression that it has exclusive rights to organise the exploitation of the first Complainant's services, whereas she has authorised releases of her material through other agencies. More generally the second Complainant failed to disclose the full extent of its knowledge and motivation and instead sought to use the present proceedings to pressurise the Respondent into surrendering the domain name at issue.
(5) The Respondent's conduct in seeking to protect the real Amy Miller's reputation is not a use of that name in bad faith.
6. Grounds for Decision
Under the UDRP, no complaint can succeed unless there is an applicable dispute in accordance with the three-fold test specified in Paragraph 4(a). The first of these requirements is that the Respondent's domain name in issue is identical with or confusingly similar to a trademark or service mark in which the complainant has rights. Given the summary nature of the Dispute Resolution procedure, there must be clear evidence that this is so. Not least is this important in cases where common-law rights (i.e., rights dependent on an established reputation with the relevant public) are being asserted in a personal name, such as Amy Miller, since it is plausible that there may be other individuals who have the same name and wish to use it in their business. This, however, is a matter of general policy. It is not related in any way directly to the Respondent's assertion in this case there was an actress and model of the same name and that the Complainants are seeking to misappropriate her reputation. To this allegation I return separately below.
As proof that the first Complainant has the requisite reputation in her name, Amy Miller, reliance is placed on the list of film, print, video, television, radio, commercial and promotional, runway and stage appearances listed in an attachment to her Affidavit in the case (Complaint, Exhibit 1). In addition, there is annexed to the Complaint a printout from <amy.macandbumble.com>, which "presents Amy and friends", and lists Amy Miller with 16 other names of models; and a printout from tour.macandbumble,com/models_list/amy_miller/index, featuring Amy Miller. From the photograph annexed to the first Complainant's affidavit, and from the photographs in the other material just listed, it is clear that she is the soft porn model on view on these sites. There is also included a cover picture from Playboy's Girlfriends, which apparently features the same person but gives neither her name nor the date of publication, so it adds nothing to the case that she has a reputation as a model and actress under the name, Amy Miller. The same lack of specificity affects much of the list of appearances attached to the Affidavit. Most of the first Complainant's film and promotional work seems very peripheral (film appearances as hooters waitress, cheerleader and background player, for instance) and nothing is said which would confirm that in these cases her name was used in a way which would stamp it upon the viewing public's mind. Only in Www.WatchUs Die.com (for NG Productions) and the Playboy video, Girl's (sic) of the Hard Rock, is she said to have played lead roles. In her modelling for printed publications no indication is given that she was identified by the name which she claims to give world renown to her stellar beauty.
In my judgment, the macandbumble listings and the filmand video leads are wholly insufficient to establish the kind of reputation which would show the first Complainant to have goodwill in "Amy Miller" which would be protectable as a common law service mark. I am not persuaded by the slender evidence presented that any substantial sector of the viewing public is likely to treat "Amy Miller" as so identifying the first Complainant that she could succeed in obtaining protection against the passing off or palming off of similar services, if they were offered by another person under that or a confusingly similar name. It is true that in Patricia Ford and Online Creations v. Damis Kuzicevic, WIPO Case D2001-0059, a case also brought by the second Complainant, the Complaint succeeded against the particular Respondent. But each decision depends on an assessment of the particular evidence placed before the Panel. One model may have shown a sufficient reputation when another is still at an early stage in building her name. I have not been convinced that the first Complainant has yet established herself under her own name in any significant degree. To claim "world renown" for her is pure hyperbole.
The present Complaint accordingly fails to make out the first requirement of the UDRP. That is a conclusion which I reach without reference to any of the assertions which make up the Response in this case. So far as these assertions relate to facts relevant to the present issue, they seem unsubstantiated by evidence. This is so in particular of the claim that there is another Amy Miller on whose behalf the Respondent has been acting – gratuitously and officiously, it seems, since she has not been traced. It is difficult to escape the impression that the Respondent set about raising a multi-layered smoke-screen of improbable counter-allegations in the hope that the lack of justification for its actions would somehow remain shrouded. Since I do not need to enter this murky territory, I offer no further comment upon its contours. Nor do I need to consider the Respondent's various procedural requests.
In accordance with the Uniform Domain Name Dispute Resolution Policy, Paragraph 4, the Panel declines to order that the domain name <amymiller.com> be transferred to the Complainants.
William R Cornish
Dated: November 29, 2001