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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Christopher Lloyd p/k/a Lloyd Banks v. Mike Morgan

Case No. D2004-0339

 

1. The Parties

The Complainant is Christopher Lloyd p/k/a Lloyd Banks, c/o Moritt Hock Hamroff & Horowitz LLP of Garden City, New York, United States of America, and is represented by Moritt Hock Hamroff & Horowitz.

The Respondent is Mike Morgan of Mount Pearl, Newfoundland, Canada.

 

2. The Domain Name and Registrar

The disputed domain name <lloydbanks.com> (the “Domain Name”) is registered with Go Daddy Software (the “Registrar”).

 

3. Procedural History

The Complainant filed a Complaint against a respondent identified as “1b” in respect of the Domain Name under the Uniform Domain Name Dispute Resolution Policy (the “Policy”) with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2004. The Center transmitted its request for registrar verification to the Registrar on May 11, 2004. The Registrar responded the same day, confirming that it was the Registrar for the Domain Name and pointing out that the registrant was not “1b”, but a Mike Morgan. The Registrar also provided the contact details for the registrant recorded in its Whois database and confirmed that the Policy applied to the registration, that the Domain Name would remain locked during this proceeding, and that the registration agreement was in English and contained a submission by the Respondent to the jurisdiction at the Registrar’s principal office.

The Center notified the Complainant on May 25, 2004, that the Complaint was deficient in its identification of the Respondent. The Complainant filed an Amended Complaint the same day, identifying the Respondent as “Mike Morgan.” On June 4, 2004, the Center verified that the Complaint and the Amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Complaint to the Respondent, and the proceeding commenced on June 4, 2004. The notification was effected by courier and email, and all transmissions appear to have been successful.

The Complainant submitted a supplemental filing on June 17, 2004. The Center informed the Complainant on June 21, 2004, that the Rules do not provide for supplemental filings and that its admission would be at the discretion of the Panel when appointed.

In accordance with the Rules, paragraph 5(a), the due date for Response was June 24, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 29, 2004.

On July 3, 2004, the Respondent emailed the Complainant’s representatives, informing them that he had bought the Domain Name for $500 last February, but that he was happy to transfer the Domain Name and to have the case dropped in exchange. The Complainant accepted this offer by his representatives’ email of July 6, 2004, and asked the Center to suspend the proceeding to enable amicable settlement. On July 12, 2004, the Center suspended the proceeding for 30 days.

The Complainant forwarded a transfer form to the Respondent on July 22, 2004, requesting him to execute and return it promptly. The Complainant did not receive the executed transfer form by August 12, 2004, and requested a week’s extension of the suspension. On August 13, 2004, the Center extended the suspension until August 20, 2004. On August 23, 2004, the Complainant informed the Center that the parties were still working on the transfer of the Domain Name, and requested that the suspension be extended by a further 30 days. The Center suspended the proceedings until September 23, 2004.

On September 2, 2004, the Complainant informed the Respondent that to complete the transfer he had to reply to an email from the Registrar confirming the transfer authorization. The Respondent replied to the Complainant the same day stating that he had troubles with the transfer and that he was about to leave for a vacation until September 28, 2004. On September 22, 2004, the Complainant requested a further 30 days’ extension of the suspension in view of the Respondent’s vacation. The Center granted a further extension until October 23, 2004, stating that absent exceptional circumstances, it would not grant any further extensions.

The Complainant subsequently emailed the Respondent stating that two further attempts to transfer the Domain Name had failed and asking him to make sure to reply to the email requesting confirmation. The Complainant also attempted to telephone the Respondent, who replied by email of October 18, 2004, objecting to telephone contact. On October 22, 2004, the Complainant requested a further week’s extension of the suspension. The Complainant contended that there were exceptional circumstances justifying an extension beyond the Center’s final deadline, since “The parties have been diligently endeavouring to cooperate with an orderly transfer. As of yesterday, we were informed by the registrar company that the transfer of the domain name is currently ‘pending’ … but most likely will not be completed by tomorrow’s deadline”. The Center granted a further final extension of the suspension until November 6, 2004.

On November 5, 2004, the Complainant informed the Center that it had been unsuccessful in obtaining transfer of the Domain Name and requested that the proceeding be reinstated. On November 8, 2004, the Center wrote to the Registrar noting that the Domain Name appeared to have been transferred to a different registrant and registrar on November 4, 2004, in breach of paragraph 8 of the Policy, and requesting that the Domain Name be transferred back to the Respondent and the Registrar. The Registrar confirmed on November 22, 2004, that the Domain Name had been transferred back to the status at the date of the registrar verification.

On November 25, 2004, the Respondent wrote to the Center asking whether the Registrar was obligated to lock the Domain Name so that he was not able to administer it in any way. The Center replied on November 26, 2004, drawing the Respondent’s attention to paragraph 8 of the Policy.

The Complainant elected in the Complaint to have the dispute determined by a three-member Panel. The Center appointed Jonathan Turner, Justin Hughes and Mark Min-Jen Yang as Panelists in this matter on December 10, 2004. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

Having reviewed the file, the Panel is satisfied that the Complaint and the Amended Complaint complied with applicable formal requirements, were duly served on the Respondent and have been submitted to a properly constituted three-member Panel in accordance with the Policy, the Rules and the Supplemental Rules.

 

4. Factual Background

The Complainant is a popular musician who performs and records hip hop and rap music under his professional name, Lloyd Banks, both individually and as a member of a band called “G-Unit.” He has used the name Lloyd Banks since 1993, and expenditure on publicizing the name to date amounts to hundreds of thousands of dollars. He received the accolade “2003’s Best Artist on a Mixtape” at the 8th Annual Mixtape Awards.

The Complainant applied to the United States Patent and Trademark Office on February 5, 2004, to register LLOYD BANKS as a trademark, but the application has not yet been granted.

The Domain Name was registered on February 4, 2003, and was originally pointed to a standard page of the Registrar’s website which stated that <lloydbanks.com> was “coming soon.” The Domain Name was also advertised by the Registrar as being for sale with an indication that enquiries should be directed to the email address “gemini6113[@email address].” In August 2003, a number of posts by “gemini6113” in chat forums offered the Domain Name and various other domain names corresponding to the names of well-known musical artists for sale to the highest bidder.

From May 24, 2003, until the Complaint was filed, the Domain Name was pointed to a page of a business called ‘Sedo’ which provides a marketplace for buying and selling domain names and websites. The page stated that the Domain Name was for sale and provided a link under the words “More details” which connected to a page soliciting the submission of offers for the Domain Name without content.

At the date of the Complaint, the registrant was identified as “1 b” with an address in Newfoundland. The Administrative and Technical Contacts were identified as b,1 jimmylick[@email address]. The telephone number provided for these contacts was answered on behalf of St. Peter’s School by a person who had no knowledge of anyone by the name “Jimmy Lick.” After the submission of the Complaint on May 7, 2004, the name of the registrant was changed to “Mike Morgan” and the address was changed to provide a house number and the name of a town instead of its initials. In other respects the new address for the registrant remained the same as before.

As mentioned above, the Respondent offered to transfer the Domain Name to the Complainant in return for the Complainant dropping the proceeding. The Complainant agreed, but the Respondent failed to complete the transfer to the Complainant over the space of several months. The Domain Name was then transferred to a third party and a different registrar, until the previous status was restored following the Center’s intervention.

 

5. Parties’ Contentions

The Complainant contends that the Domain Name is identical or confusingly similar to his professional name “Lloyd Banks,” in which he has unregistered trademark rights by virtue of the reputation which he has acquired under this name as a performing and recording musician since 1993. It is not clear whether the Complainant also relies on his United States trademark application.

The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that it was registered and is being used in bad faith for the purpose of sale for valuable consideration in excess of his costs.

The Complainant requests a decision that the Domain Name be transferred to him.

As mentioned above, the Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, to succeed in this proceeding, the Complainant must prove (A) that the Domain Name is identical or confusingly similar to a trademark in which he has rights, and, (B) that the Respondent has no rights or legitimate interests in respect of the Domain Name, and (C) that the Domain Name was registered and is being used in bad faith. These requirements will be considered in turn below.

Where there is default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint,” and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate.”  Furthermore, paragraph 15(a) of the Rules provides that a “Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate.”  Since the Respondent has not submitted any evidence, the Panel must render its Decision on the basis of the uncontroverted evidence supplied by the Complainant.

The Rules provide for a single statement by each party. However, under paragraph 12 of the Rules the Panel may, in its sole discretion, request further statements from the parties, and it has been held that a Panel may similarly exercise its discretion to admit further statements volunteered by the parties.

The Panel has not seen the supplemental statement sought to be filed by the Complainant. Since this appears to the Panel to be a plain case on the basis of the material already submitted, the Panel considers that no useful purpose will be served by admitting the Complainant’s supplemental statement. The Panel, therefore, declines to exercise its discretion to admit it.

A. Identical or Confusingly Similar to Mark in which the Complainant has Rights

The Panel is satisfied that the Complainant has unregistered trademark rights in his professional name LLOYD BANKS by virtue of his use of this name and the reputation which he has acquired under it as a professional musician since 1993. The unchallenged evidence shows that the Complainant has acquired sufficient reputation under this name for it to be protected as a “common law” trademark. This evidence is corroborated by the fact that the Respondent or his predecessor advertised the Domain Name for sale alongside a series of other domain names corresponding to the professional names of well-known musicians.

It is well established that where musicians have acquired reputations under professional names, their “common law” rights in these names are to be regarded as rights in trade or service marks within the meaning of the first requirement of paragraph 4(a) of the Policy: see Helen Folsade Adu known as Sade v. Quantum Computer Services Inc, WIPO Case No. D2000-0794, <sade.com>, and Celine Dion and Sony Music Entertainment (Canada) Inc. v. Jeff Burgar operating or carrying on business as Celine Dion Club, WIPO Case No. D2000-1838, <celinedion.com>.

On the other hand, the Panel does not regard the Complainant’s pending application to register the name as a trademark as conferring rights for the purpose of this requirement: see Vertical Computer Systems, Inc v. Registrant of “pointmail.com,” WIPO Case No. D2001-0006, <pointmail.com>, and Stokes Seeds, Ltd. v. Peter Carrington, WIPO Case No. D2004-0526, <stokeseed.com>.

The Domain Name is effectively identical to the Complainant’s mark. For the purposes of the Policy, the gTLD suffix may be disregarded: see KCTS Television Inc. v. Get-on-the-Web Limited, WIPO Case No. D2001-0154, <kcts.com>.

Accordingly, the first requirement of the Policy is met.

B. Rights or Legitimate Interests

The Panel is satisfied that the Respondent has no rights or legitimate interests in respect of the Domain Name. He has not used it or any corresponding name for any bona fide purpose and provided no other evidence of rights or legitimate interests.

C. Registered and Used in Bad Faith

The Panel is also satisfied that the Domain Name was registered and is being used in bad faith for the purpose of sale at a profit. It is not clear whether the ownership of the Domain Name has changed since it was registered or whether the original registrant has merely changed his aliases. However, this does not matter since the evidence shows that at all times from the registration of the Domain Name until the filing of the Complaint, the Domain Name was offered for sale to the highest bidder. It is also clear from the way in which the Domain Name was advertised that the original registrant was well aware that it reflected the name of a popular musician.

Further evidence of bad faith is provided by the Respondent’s conduct since the Complaint was filed, in failing to complete the transfer of the Domain Name to the Complainant as agreed, despite the Complainant’s considerable patience; and then (when there was no possibility of any further extension) transferring the Domain Name to a third party or an alias with a different registrar.

The Panel concludes that the third requirement of the Policy is established.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <lloydbanks.com>, be transferred to the Complainant.


Jonathan Turner
Presiding Panelist


Justin Hughes
Panelist


Mark Min-Jen Yang
Panelist

Dated: December 16, 2004

 

Источник информации: https://internet-law.ru/intlaw/udrp/2004/d2004-0339.html

 

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