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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

DreamHealer Inc. v. Fred Dennis

Case No. D2007-1794

1. The Parties

The Complainant is DreamHealer Inc., of Canada, represented by McConchie Law Corporation, Canada.

The Respondent is Fred Dennis, of United States of America.

2. The Domain Names and Registrar

The disputed domain names, <dreamhealer.net> and <dreamhealer.org> (the “Domain Names”), are registered with GoDaddy.com, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 1, 2007. On December 4, 2008 the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. The Registrar responded the same day transmitting by email to the Center its verification response disclosing underlying registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 7, 2007 providing the underlying registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 7, 2007.

The Center verified that the Complaint together with the amendment to 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 December 12, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was January 1, 2008. The Response was filed with the Center on December 27, 2007.

The Center appointed Tony Willoughby as the sole panelist in this matter on January 10, 2008. 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.

Having read the papers, the Panel felt it necessary to seek further information from the parties and issued Procedural Order No. 1 on January 21, 2008. The parties’ responses gave rise to further questions, which resulted in a second Procedural Order being issued on January 24, 2008. To the extent that their responses are material to this decision, they will be referred to below.

4. Factual Background

The Complainant is a company incorporated in Canada. It is the commercial vehicle through which Adam McLeod, a ‘distant energy healer’, provides his goods and services. It is not clear from the papers before the Panel precisely when the Complainant commenced trade, but it appears to have been in the course of 2003.

The Complainant is the registered proprietor of Canadian trade mark registration no. 658,029 registered on February 3, 2006 (application filed on January 26, 2004) for DREAMHEALER (word) for a wide variety of goods and services concerned with healing, self-empowerment and wellness.

The Complainant is also the registered proprietor of US trade mark registration no. 3,268,834 registered on July 24, 2007 (application filed on February 10, 2005) for DREAMHEALER (word) for videotapes and DVDs “featuring visualizations for self-empowerment, lectures and workshops on healing, self-empowerment and wellness in Class 9”.

The Complainant operates a website at “www.dreamhealer.com”. The Panel does not know when that domain name was registered, but the website was in existence in April 2003.

The Respondent is a doctor of medicine practising in California. When he decided to set up a website for his practice as a healer, he decided on the domain name, <dreamhealer.com>, but found that it had been taken and decided instead upon the Domain Names, which he registered on December 28, 2004.

In April, 2005 the Respondent attended a course run by the Complainant at which the Respondent claims to have discussed the Domain Names with the Complainant. In 2006 the parties entered into correspondence over the Domain Names. The correspondence was initiated by the Complainant, but ended when the Complainant failed to respond substantively to the Respondent’s offer to sell/barter the Domain Names for around $1500 to $2,000 a piece.

The Domain Names are connected to a parking page hosted by the Registrar.

On October 4, 2007 the Complainant’s representatives wrote to the Respondent (or rather the Domains By Proxy service in whose name the Domain Names were registered) drawing attention to the Complainant’s rights and seeking transfer of the Domain Names. The Complainant received no reply.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Names are identical to the Complainant’s trade mark DREAMHEALER. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Names and that the Domain Names were registered and are being used in bad faith.

The Complainant contends that the Respondent registered the Domain Names with knowledge of the Complainant’s rights and registered the Domain Names with a view to blocking the Complainant. The Complainant also contends that the fact that the Respondent registered the two Domain Names, both of which are abusive, constitutes a pattern within the meaning of paragraph 4(b)(ii) of the Policy. The Complainant also prays in aid the fact that the Respondent registered the Domain Names via a Proxy service and failed to respond to the Complainant’s lawyers’ letter of demand.

B. Respondent

The Respondent does not appear to contest the Complainant’s trade mark rights. The Respondent contends that he has rights or legitimate interests in respect of the Domain Names and asserts that all three subparagraphs of paragraph 4(c) of the Policy are applicable to him. He also contends that the Domain Names were not registered in bad faith and are not being used in bad faith. He contends that none of the four subparagraphs of paragraph 4(b) of the Policy are applicable to him.

The Respondent contends that “dream healer” was a reasonable description for him to adopt, given that prior to his having acquired any knowledge of the Complainant, he was practising as a healer using “visualizations in [his] therapeutic treatments”.

He wanted to develop an online presence and “dreamhealer” was the obvious choice for him. He found that the ‘.com’ domain name had been taken, so he opted for the Domain Names. He visited the Complainant’s website, but cannot remember what it contained. He seemed to remember that it provided no clear contact details and when he conducted a WhoIs search on the ‘.com’ domain name, he found that that domain name was held in the name of a privacy service.

The Respondent says that when he spoke to the Complainant at the Complainant’s DreamHealer workshop in Vancouver in April 2005, he assured the Complainant that he had no intention of causing confusion by utilizing the Domain Names in commerce, without contacting the Complainant. The Respondent acknowledges in the Response that throughout he has been aware that “using these sites without proper thought could create a likelihood of confusion with the [Complainant’s] business.

The Respondent denies that he is a competitor of the Complainant and denies ever having received the Complainant’s representative’s letter of October 4, 2007. He says that the first he heard of the Complainant was following the launch of the Complaint.

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove that

(i) The Domain Names are 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 Names; and

(iii) The Domain Names have been registered in bad faith and are being used in bad faith.

B. Identical or Confusingly Similar

The Complainant’s rights are not challenged, but in any event it is plain that the Complainant is the registered proprietor of Canadian and US trade mark registrations for DREAMHEALER (word).

Accordingly, the Panel finds that the Domain Names (absent the generic domain suffix) are identical to a trade mark in which the Complainant has rights.

It should be pointed out that the Complainant’s trade mark registrations came through after the Respondent had registered the Domain Names, which is a factor which could have a bearing on whether the Respondent could have had any bad faith intent at the time of registering the Domain Names, ordinarily a prerequisite under paragraph 4(a)(iii) of the Policy.

However, the Panel is satisfied from the evidence put before the Panel by the Complainant that as at December 28, 2004 when the Respondent registered the Domain Names the Complainant had established common law rights in respect of the “DreamHealer” name. The Complainant had by then launched a book entitled “DreamHealer”, which was a publishing success; moreover, the goods and services provided under and by reference to the “DreamHealer” name via the Complainant’s website at “www.dreamhealer.com” had by then become a substantial business.

C. Rights or Legitimate Interests

The Respondent has recited the three examples of what may constitute rights and legitimate interests in respect of a domain name as set out in paragraph 4(c) of the Policy and has also included in the online version of his Response the instruction “Evidence should be submitted in support of any claims made by Respondent concerning its alleged rights or legitimate interests in the domain name(s)”.

However, in dealing with this section of the Complaint the Respondent produces no evidence whatsoever, merely bald, unsupported assertions. There is no evidence of any offering of goods or services under or by reference to the Domain Names (the directory service on the parking page hosted by the Registrar is insufficient for this purpose; indeed, if it constitutes an offering of any kind, it appears to be an offering of the Registrar rather than the Respondent), there is no evidence that the Respondent is known by the Domain Names or any name corresponding to the Domain Names, nor is there any evidence of any use of the Domain Names save to connect them to the Registrar’s parking page.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names.

D. Registered and Used in Bad Faith

The Respondent vehemently denies any bad faith intent. He stresses that he was aware of the potential for confusion, if he ever used the Domain Names commercially, but had given the Complainant an assurance that he would never so use the Domain Names without first contacting the Complainant.

The Respondent claims to be a doctor of medicine, a claim which the Panel has no reason to doubt, but no evidence of his healing practice has been produced; nonetheless, it is reasonable to assume that he has an interest in this area of treatment, given his attendance at the Complainant’s workshop in April 2005.

However, what is crucial is the Respondent’s state of mind when registering the Domain Names. The Panel accepts that he had an interest in healing and that he wanted an online presence. He had also fixed on the name “Dream Healer”. Was this entirely coincidental or did it stem from the fact that the Complainant had achieved fame under that name? The Panel simply does not know.

The Respondent originally hoped to obtain the ‘.com’ equivalent of the Domain Names, but found that that domain name was not available. Even if the Respondent was not then aware of the Complainant, the Panel is nonetheless satisfied that at some stage prior to opting for the Domain Names the Respondent would have visited the Complainant’s site to which the Complainant’s <dreamhealer.com> domain name was connected.

The Respondent’s recollection of what he found when he went to the Complainant’s site is vague. Having seen the evidence put in by the Complainant in response to the second Procedural Order, the Panel is satisfied that the full nature of the Complainant’s business conducted under and by reference to the “DreamHealer” name would have been plain to the Respondent when he visited the site.

The Respondent has candidly acknowledged that there is a distinct possibility of confusion with the Complainant’s business if care is not taken as to how the Domain Names are used.

The Panel goes further. In the view of the Panel confusion of Internet users is inevitable in any event. There is no question that the Complainant has established a significant reputation and goodwill under and by reference to the name “Dream Healer”. That goodwill was in existence at the time of registration of the Domain Names and the Respondent was aware of it. Accordingly, to the Respondent’s knowledge, there was always going to be a risk of confusion of the ‘initial interest’ variety. Internet users aware of the Complainant and visiting the websites connected to the Domain Names would be likely to believe that they were visiting sites associated with the Complainant.

It seems that the Respondent still has plans for the Domain Names although he is willing to sell them to the Complainant. The Respondent’s evidence is that he has spent some $15,000 on all his various ventures of which his ‘dreamhealer’ concept is one. The Panel has been provided with no detail on any of these ventures, so the Panel is left to speculate. The Panel is concerned at the absence of any evidence to support the Respondent’s assertions as to his plans.

The Panel’s conclusion is that any venture in the healing sphere of the kind in which both parties operate conducted under the Domain Names would be likely to lead to confusion with the Complainant’s business and the current state of limbo constitutes an unacceptable, abusive threat hanging over the head of the Complainant.

Accordingly the Panel finds that the Domain Names were registered and are being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.

In so finding, the Panel accepts that the Respondent’s perception of his own intentions might not have been abusive, but the test cannot be purely subjective. Objectively, the Respondent was aware of the Complainant’s business and went ahead with registration of the Domain Names in the face of an obvious risk of confusion. He intended to use them in connection with a healing venture, but the Panel has no details of that venture; nor has the Panel been given any reason why the Domain Names have not yet been used for that purpose.

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 Names, <dreamhealer.org> and <dreamhealer.net>, be transferred to the Complainant.


Tony Willoughby
Sole Panelist

Date: February 5, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1794.html

 

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