WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Earl G. Graves Jr. v. , The O Vibe
Case No. D2008-0286
1. The Parties
Complainant is Earl G. Graves Jr., New York, New York, United States of America, represented by Cowan, Liebowitz & Latman, PC, United States of America.
Respondent is , The O Vibe, Savannah, Georgia, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 26, 2008. On February 28, 2008, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On February 28, 2008, Tucows transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on March 4, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 24, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 26, 2008.
The Center appointed Michael A. Albert as the sole panelist in this matter on April 7, 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.
4. Factual Background
As Respondent failed to respond to Complainant’s contentions, the Panel finds that the assertions of fact in the Complaint are undisputed. Complainant, Mr. Earl G. Graves, is President and CEO of Earl G. Graves Publishing Company, Inc., publisher of Black Enterprise magazine, which has a readership of more than 3.8 million. Complainant also played basketball professionally for the Philadelphia 76ers, the Milwaukee Bucks and the Cleveland Cavaliers.
Respondent registered the disputed domain name, , on or before December 12, 2007. The domain name resolves to a web page that offers the disputed domain name for sale, along with other domain names containing the names of several other famous African Americans.
5. Parties’ Contentions
A. Complainant
Complainant contends that he has developed significant good will and public recognition in the common law mark EARL G. GRAVES JR. with respect to the services of publishing, advertising, marketing, corporate management, business leadership, community service and equity investments. As support, he provides a number of his accomplishments and honors in these fields. He also notes that a Google search performed on February 12, 2008, for “earl g. graves jr” revealed over 1,200 results, and another on February 7, 2008, for “earl g. graves” revealed over 22,000 results.
Complainant contends that the disputed domain name is confusingly similar to his common law mark EARL G. GRAVES JR., in that it incorporates the mark in its entirety, that Respondent has no rights or legitimate interests in the domain name, and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
A number of cases have found common law trademark rights in a complainant’s name if the name is used in trade or commerce. See, e.g., Soin International v. Michael W. Solley,WIPO Case No. D2007-0094 (March 7, 2007). Here, Complainant has provided extensive evidence that his name has become widely known in connection with his business endeavors. Particularly persuasive are the thousands of Google search results linked with his name and business, as well as the webpage associated with the disputed domain name itself: in the “notes” to the listing of the disputed domain name appears “President of Black Enterprise Magazine,” and the page also lists names of other famous African Americans. Thus, the Panel finds that Complainant has established rights in the mark EARL G. GRAVES JR.
The disputed domain name is identical to Complainant’s name, which as noted above he uses in commerce as a mark. The only change is the addition of the generic top-level domain “.com”. It is well settled that addition of a generic top-level domain does not remove the confusing similarity of a domain name. See Rollerblade, Inc. v. McCrady,WIPO Case No. D2000-0429 (June 25, 2000). The Panel thus finds that the disputed domain name is confusingly similar to Complainant’s mark.
B. Rights or Legitimate Interests
As Respondent has not filed a response, it appears it does not claim any rights to or legitimate interests in the disputed domain name. There is no evidence that Respondent is commonly known by the disputed domain name, nor that Respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain. Respondent is not a licensee of Complainant, nor has Respondent ever been authorized to use the disputed domain name.
Respondent is also not using the disputed domain name in connection with a bona fide offering of goods and services. The disputed domain name resolves to a webpage that offers the domain name for sale, along with other domain names incorporating the names of famous people. Prior UDRP panels have found that such use is not a bona fide offering of goods and services. See Steve Rattner v. BuyThisDomainName,WIPO Case No. D2000-0402 (July 3, 2000).
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Complainant contends that Respondent has registered and used the disputed domain name in bad faith. As evidence, Complainant points out that the domain name resolves to a webpage that offers that domain name for sale, which constitutes bad faith under Policy paragraph 4(b)(i). The price listed for the disputed domain name is USD 2,495.00, which is clearly in excess of the cost Respondent incurred in purchasing the domain name.
Complainant has also provided evidence that Respondent has engaged in a pattern of registering and offering for sale domain names that contain the names of other famous people. Such a pattern of conduct is further evidence of bad faith use and registration. See Julia Fiona Roberts v. Russell Boyd,WIPO Case No. D2000-0210 (May 29, 2000) (bad faith found where respondent engaged in pattern of registering domain names of famous film and sports stars).
Accordingly, the Panel finds that Respondent has registered and used the disputed domain name in bad faith.
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 the Complainant.
Michael A. Albert
Sole Panelist
Date: April 24, 2008
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