WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dr. Michael Crichton v. Alberta Hot Rods
Case No: D2002-0872
1. The Parties
The Complainant is Dr. Michael Crichton of United States of America, represented by White O'Connor Curry & Avanzado LLP of United States of America.
The Respondent is Alberta Hot Rods of Alberta, Canada.
2. The Domain Name and Registrar
The disputed domain name is registered with CORE Internet Council of Registrars.
3. Procedural History
This is an administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") of the WIPO Arbitration and Mediation Center ("the Center").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 17, 2002, and in hard copy on September 18, 2002. On September 18, 2002, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 25, 2002, the Registrar confirmed that the Respondent is the registrant and that the record was created on December 13, 1996. The Registrar provided inter alia contact details for the administrative, billing, and technical contacts and informed the Center that the Policy has been the Registrar�s policy since December 1, 1999, that the disputed domain name has been placed on "Registry-lock" and that the language of the registration agreement is English. The Center satisfied itself that the Complaint complied with the formal requirements of the Policy, the Rules and 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 September 26, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was October 16, 2002. The Respondent did not submit any response. Accordingly, the Center notified the parties of the Respondent�s default on October 17, 2002.
The Center appointed Edward C. Chiasson Q.C., Richard W. Page, Esq., and Alan L. Limbury Esq. as Panelists on November 11, 2002. The Panel finds that it was properly constituted. 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.
The language of the proceeding was English, being the language of the registration agreement.
4. Factual Background (uncontested facts)
Complainant is a well-known author and director who has published numerous books, screenplays and other works under his own name. These include:
Novels:
"The Andromeda Strain", published in 1969;
"The Great Train Robbery", published in 1975;
"Congo", published in 1980;
"Sphere", published in 1987;
"Jurassic Park", published in 1990;
"Rising Sun", published in 1992;
"Disclosure", published in 1993;
"Airframe", published in 1996; and
"Timeline", published in 1999.
Non-fiction Books:
"Five Patients", published in 1970;
"Jasper Johns", published in 1977;
"Electronic Life", published in 1983; and
"Travels", published in 1988.
Motion Pictures:
"The Andromeda Strain", released in 1971;
"Westworld", released in 1973;
"Coma", released in 1977;
"The Great Train Robbery", released in 1978;
"Runaway", released in 1984;
"Rising Sun", released in 1993;
"Jurassic Park", released in 1993;
"Disclosure", released in 1995;
"Twister", released in 1996; and
"The Lost World", released in 1997.
Television:
"ER", broadcast from 1994 through the present.
Respondent is owned and controlled by Mr. Jeff Burgar. Respondent registered the disputed domain name on December 13, 1996. It connects Internauts to Respondent�s website, which carries an array of commercial advertisements but nothing about Complainant or his works, other than one reference to the movie "Jurassic Park" as one of the site�s top 5 movies.
Respondent is not, and has never been, personally or professionally known as Michael Crichton. Respondent does not transact in goods or services related to Michael Crichton, and is not otherwise authorized or permitted to use the name Michael Crichton.
Complainant contacted Respondent requesting the transfer of the disputed domain name but Respondent failed to reply.
5. Parties� Contentions
A. Complainant
Complainant�s name has become a famous common law trademark. The disputed domain name is identical to the mark. Respondent has no rights or legitimate interests in the disputed domain name, which was registered and is being used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant�s contentions.
6. Discussion and Findings
Under paragraph 15(a) of the Rules, the Panel must decide this Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
To qualify for cancellation or transfer, a Complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Failure to File a Response
A respondent is not obliged to participate in a domain name dispute proceeding, but if it were to fail to do so, asserted facts that are not unreasonable would be taken as true and the respondent would be subject to the inferences that flow naturally from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441. See also Hewlett-Packard Company v. Full System, NAF Case No. FA 0094637; David G. Cook v. This Domain is For Sale, NAF Case No. FA0094957 and Gorstew Jamaica and Unique Vacations, Inc. v. Travel Concierge, NAF Case No. FA0094925.
A. Identical or Confusingly Similar
In light of the Second WIPO Domain Name Process, it is clear that the Policy is not intended to apply to personal names that have not been used commercially and acquired secondary meaning as the source of goods and/or services, i.e. common law trademark rights: The Reverend Dr. Jerry Falwell and The Liberty Alliance v. Gary Cohn, P and G, WIPO Case No. D2002-0184; Israel Harold Asper v. Communication X Inc., WIPO Case No. D2001-0540; Kathleen Kennedy Townsend v. B. G. Birt, WIPO Case No. D2002-0030; R.E.�Ted� Turner and Ted Turner Film Properties, LLC v. Mazen Fahmi, WIPO Case No. D2002-0251.
To establish common law rights in a personal name, it is necessary to show use of that name as an indication of the source of goods or services supplied in trade or commerce and that, as a result of such use, the name has become distinctive of that source. Upon such proof, a celebrity�s name can serve as a trademark when used to identify the celebrity�s performance services: Kevin Spacey v. Alberta Hot Rods, NAF Case No. FA0205000114437.
Complainant has claimed to be the author of the numerous works already identified. Respondent has not contested the claim. Based on this information, the Panel finds that Complainant has, through use, acquired common law trademark rights in his name.
The disputed domain name differs from Complainant's mark only by the addition of ".com", which is of no consequence. The Panel finds the disputed domain name is identical to Complainant's mark. Complainant has established this element of his case.
B. Rights or Legitimate Interests
Likewise, in the absence of a Response, the Panel accepts that Respondent is not known by the disputed domain name, does not transact in goods or services related to Complainant and is not authorized by Complainant to use his mark. These circumstances are sufficient to constitute a prima facie showing by Complainant of absence of rights or legitimate interests in the disputed domain name on the part of Respondent. The evidentiary burden, therefore, shifts to Respondent to show that it does have rights or legitimate interests in the domain name, whether by reference to the examples set out in paragraph 4(c) of the Policy or otherwise: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. Respondent has made no such showing.
Internet users who access the disputed domain name are automatically transported to Respondent�s commercial website at . In the same circumstances, the Panel in Stephanie Seymour v. Jeff Burgar d/b/a Stephanie Seymour Club, NAF Case No. FA0104000097112 held that by virtue of serving only as a portal, the site "evidences no bona fide authorized offering of goods and services whatsoever and does nothing but misappropriate Complainant�s trademark in order to lure Internet users to Respondent�s commercial site". Likewise in Michael Andretti v. Alberta Hot Rods, NAF Case No. FA0108000099084.
Here, as in Stephanie Seymour and Michael Andretti and in contrast to the circumstances found in The Hebrew University of Jerusalem v. Alberta Hot Rods, WIPO Case No. D2002-0616, Complainant�s name is well-known as a trademark. Accordingly, Respondent�s unauthorized use of the disputed domain name to lead to the site cannot be accepted as bona fide use.
The Panel finds Respondent has no rights or legitimate interest in the disputed domain name. Complainant has established this element of his case.
C. Registered and Used in Bad Faith
Internauts entering a domain name of a celebrity famously associated in commerce with the supply of goods or services expect to find a site offering goods or services associated with the celebrity�s trademark. Here they find a site that has no association with Complainant or his mark. It follows that the Panel finds Respondent has used the disputed domain name intentionally to attempt to attract, for commercial gain, Internauts to its website by creating a likelihood of confusion with Complainant�s mark as to the source, sponsorship, affiliation or endorsement of its website. Under paragraph 4(c)(iv) of the Policy, this shall be evidence of both bad faith registration and use.
Complainant has established this element of his case.
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 be transferred to Complainant.
Alan L. Limbury
Presiding Panelist
Edward C. Chiasson
PanelistQ.C. Richard W. Page
Panelist
Dated: November 25, 2002
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