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ADMINISTRATIVE PANEL DECISION

Nick Cannon v. Modern Limited - Cayman Web Development

Case No. D2005-0757

1. The Parties

The Complainant is Nick Cannon of United States of America, represented by Del, Shaw, Moonves, Tanaka & Finkelstein of United States of America.

The Respondent is Modern Limited - Cayman Web Development, George Town, Grand Cayman GT KY, of United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name <nickcannon.com> (herein the “domain name in dispute”) is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 15, 2005. On July 19, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 19, 2005, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the 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 Respondent of the Complaint, and the proceedings commenced on July 20, 2005. In accordance with the Rules, paragraph 5(a), the due date for the Response was August 9, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 10, 2005.

The Center appointed J. Nelson Landry as the Sole Panelist in this matter on August 12, 2005. The Panel finds that it was properly constituted. 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.

4. Factual Background

The Complainant is a television and film actor, a writer and producer of television programs and films and is also a music composer and performer. Over the past 10 years, the Complainant has appeared in numerous television programs and motion pictures, including “The Nick Cannon Show”, “Men in Black II” (2002), “Drumline” (2002), “Love Don’t Cost a Thing” (2003), “Shall We Dance” (2004), and “Jump Shot” (2005).

5. Parties’ Contentions

A. The Complainant

The Complainant submits that he is a well known television and film actor, a writer and producer of television programs and films and also enjoys a successful career in music as a composer and performer. This is evidenced by his appearances over the past 10 years in numerous television programs and motion pictures, including “The Nick Cannon Show”, “Men in Black II”, “Drumline”, “Love Don’t Cost a Thing”, “Shall We Dance”, and “Jump Shot”. The Complainant, although he has not registered his name as a trademark, has consistently used his name in all of his entertainment activities since the 1980s and therefore contends that he has acquired common law rights in his name by virtue of such use in his extensive entertainment career, as well as under 15 U.S.C Section 1052(d) of the Lanham Act.

According to the Complainant, the domain name in dispute is identical to the Complainant’s name with only the extension “.com” added. Accordingly, pursuant to the Rules, paragraph 3(b)(ix)(1), the domain name in dispute is confusingly similar to the name in which the Complainant has rights. The Complainant relies on other WIPO UDRP cases wherein Panels have found for the complainants under similar circumstances. See, Julia Fiona Roberts v. Russell Boyd, WIPO Case No. D2000-0210; Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party, WIPO Case No. D2000-1415.

The Complainant further submits that the Respondent has no rights or legitimate interests in respect of the domain name in dispute under the Policy and that the Respondent has been granted no license or other right to use the Complainant’s name as part of any domain name or for any other purpose. The Complainant alleges that the Respondent is the registrant of hundreds of famous individuals’ names and company names and there have been numerous WIPO UDRP and other proceedings against the Respondent for “cybersquatting” on these domain names. See Downey Communications, Inc. v. Modern Limited-Cayman Web Development, NAF Case No. FA260657; Microsoft Corporation v. Modern Limited - Cayman Web Development, WIPO Case No. D2003-0919; Government Employees Insurance Company (GEICO) v. Gico, WIPO Case No. D2004-0545; Caesars Entertainment, Inc. (CEI) v. Modern Limited - Cayman Web Development, WIPO Case No. D2004-0267. According to the Complainant these cases are consistent in awarding the requested relief to the complainants and are but a few of the cases that have been filed against the Respondent.

The Complainant contends that, under paragraph 4(c) of the Policy, a registrant may demonstrate legitimate interests in a domain name by showing use of or demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services or that the Respondent has been commonly known by the domain name in dispute or that the Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or services mark at issue.

According to the Complainant, the Respondent cannot satisfy any of these criteria.

The Complainant states that the Respondent has not previously, nor is he currently, using the domain name in dispute in connection with a bona fide offering of goods and services, but rather the URL for the domain name merely terminates at a page with links to other websites, none of which have anything to do with the Complainant.

The Complainant further states that the Respondent has not previously been, nor is he currently, known by the name “Nick Cannon”.

Finally, according to the Complainant, the Respondent is intentionally using the Complainant’s name to divert people to an unrelated website. The domain name in dispute is being used solely to redirect Internet users to a site for the benefit of the Respondent.

Finally, the Complainant contends that the domain name in dispute was registered and is being used in bad faith under the Policy.

The Complainant submits that by using the domain name in dispute the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line locations by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. Furthermore the evidence of the Respondent’s repeated conduct in registering the names of others for its own commercial purposes is, according to the Complainant, a clear and unambiguous violation of paragraph 4(b)(iv) of the Policy and undisputed evidence of bad faith.

The Complainant furthermore states that, in this instance, the URL <nickcannon.com> directs an Internet user not to a fan site for Nick Cannon but to a website comprised of totally unrelated links to other web pages. Moreover, the Respondent’s pattern of “cybersquatting” on many hundreds of domain names which are confusingly similar to the names of famous persons and companies evidences the Respondent’s intent to deny the use of such domain names to legitimate users. As such, the Respondent’s conduct also violates paragraph 4(b)(ii) of the Policy.

B. The Respondent

The Respondent did not reply to the Complainant’s contentions and evidence.

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements in order for the domain name to be cancelled or transferred:

(i) The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, and

(ii) The Respondent has no rights or legitimate interest in respect of the domain name; and

(iii) The domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

It is well established in numerous UDRP decisions cited by the Complainant that a complainant does not need to show that one enjoys rights from registered trademarks. See Julia Fiona Roberts v. Russell Boyd, WIPO Case No. D2000-0210. In numerous jurisdictions, including that of the United States, a complainant may assert common law trademark rights in his or her name. The Complainant has done so in the present case in referring to his movie experience (six films, from 2002 to 2005) and his extensive career as an actor, writer, producer, and musical composer and performer under his name since the 1980s.

The Respondent does not adduce any evidence to rebut such allegations and statements by the Complainant. The Panel verified the number of appearances of the Complainant’s name “Nick Cannon” on <google.com> on August 21, 2005, and at least one hundred thousands appearances of the Complainant’s name were observed.

The Panel finds that the Complainant has demonstrated substantial use of the name “Nick Cannon” in association with his professional career and consequently enjoys common law trademark rights in “Nick Cannon”. The evidence, as well as the representations of the Complainant, are consistent with UDRP decisions cited by the Complainant; see Julia Fiona Roberts v. Russell Boyd, WIPO Case No. D2000-0210; Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party, WIPO Case No. D2000-1415.

The Panel finds that the Complainant has the benefit of common law trademark rights in the name “Nick Cannon”.

Upon considering the said common law trademark rights in “Nick Cannon” and the domain name in dispute, the Panel has no hesitation in finding that the domain name in dispute is confusingly similar with the Complainant’s name and trademark and that the addition of the suffix “.com” does not change in any way this similarity.

The Panel finds that the first requirement of the Policy is satisfied.

B. Rights or Legitimate Interests

The Respondent has not filed any response in this proceeding. Therefore the Panel may accept all reasonable inferences and allegations included in the Complaint as true. The Complainant has made a prima facie case that the Respondent lacks any right or legitimate interests in the domain name in dispute by stating that the Respondent has never been known by the name “Nick Cannon” or the domain name in dispute and that the Respondent is not making a legitimate non-commercial or fair use of the domain name in dispute. Furthermore, there is uncontradicted evidence that the Complainant has never given a license nor in any way authorized the Respondent to make use of the Complainant’s name or unregistered trademark.

There is no evidence that the Respondent has ever engaged in any legitimate business under the Complainant’s name or the domain name in dispute. Furthermore, it is certainly fair to conclude that the holding of the domain name in dispute by the Respondent denies the Complainant access to the use of the domain name corresponding to his name.

The second requirement has been met.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states circumstances which, if found to exist, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that the Respondent has registered or 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 the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) the Respondent has 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 the Respondent has engaged in a pattern of such conduct; or

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

(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the website or location or of a product or service on the website or location.

It should be noted that the circumstances in which bad faith can exist are not limited to the above.

The Complainant contends that the domain name in dispute was registered and used in bad faith.

The evidence, which is not rebutted by the Respondent, shows that the Respondent has repeatedly registered as domain names the names of numerous other well known persons. The Complainant has cited four cases, identified above, showing that the Respondent has engaged in such “cybersquatting” activities. As found by the Panel in the Julia Roberts decision, “such action necessarily prevent Complainant from using the disputed domain name and demonstrate a pattern of such conduct”.

The Panel has found that the Respondent has failed to establish any legitimate right in the domain name in dispute and this fact, in addition to evidence of the Respondent’s “cybersquatting” activities, indicates that the domain name in dispute was registered in bad faith.

The Complainant has adduced convincing evidence that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant’s unregistered trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or a product or service on the Respondent’s website. The evidence shows in this present case that the domain name in dispute does not direct Internet users to a fan site for the Complainant but to a website of totally unrelated links to other web pages, including links to pornographic websites, as this Panel observed in its verification. The Panel finds that these activities, in addition to the pattern of “cybersquatting” on hundreds of domain names confusingly similar to the names of other famous persons and companies, demonstrate use of the domain name in dispute in bad faith.

The Panel finds that the third requirement under the Policy has been met.

7. Decision

The Panel concludes that:

(a) the domain name <nickcannon.com> is confusingly similar to the Complainant’s name and unregistered trademark;

(b) the Respondent has no rights or legitimate interests in the domain name in dispute; and

(c) the domain name in dispute has been registered and is being used in bad faith.

Therefore, in accordance with paragraphs 4(a) and 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <nickcannon.com> be transferred to the Complainant.

J. Nelson Landry
Sole Panelist

Dated: August 23, 2005