Complainant is Jon M. Queen of Baltimore, Maryland, United States of America, represented by Funk & Bolton, P.A., United States of America.
Respondent is Domains by Proxy, Inc. of Scottsdale, Arizona, United States of America / Kristen Bowers of Arlington, Virginia, United States, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with GoD, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 26, 2011. On August 29, 2011, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On the same date, the Registrar transmitted by e-mail to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an e-mail communication to Complainant on September 5, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. On the same date, the Center informed Complainant that the Complaint was administratively deficient. Complainant filed an amended Complaint on September 13, 2011.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 September 14, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 4, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 7, 2011.
The Center appointed Robert A. Badgley as the sole panelist in this matter on October 31, 2011. 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 Panel believes it helpful in this case, and instructive generally, to set forth the entirety of Complainant’s substantive allegations verbatim:
“The Complainant in this administrative proceeding is Jon M. Queen. Although, not a household name, the Complainant is a highly regarded and very well known member of in the international finance community and in the Ukrainian investment banking community he is a celebrity and a very visible face. As one of the Ukraine’s most active and visible investment businessmen, the Complainant serves as the Managing Director for Jaspen Capital Partners, a company that manages and trades hundreds of millions of dollars in soft commodities contracts for asset management clients, and is one of the largest soft commodities traders for all Eastern European financial companies.
In addition to the previously stated credentials, the Plaintiff has served as a senior advisor to the National Agency for Environmental Investments of Ukraine, where he helped implement the country’s renewable energy, climate change and alternative energy laws, regulations, policies and strategies. As an advisor to the former Prime Minister of Ukraine, Yulia Tymoshenko, the Complainant provided advice with regard to environmental and renewable energy topics as they related to foreign investment into Ukraine. This advice was and is relied upon by not only the Government of Ukraine, but also global investors, who make investment decisions based upon the Complainant’s name well known name recognition and advice.
As a result of the Complainant’s former position in the Ukrainian government and his role as the “name and face” to foreign investors of Ukraine’s green energy and carbon credit investment business sectors, the Complainant offers personal advisory services to large Ukrainian companies and global investors on carbon trading in the Ukraine. The Complainant is a commonly invited guest speaker at Ukraine’s main international conferences on the topic of green energy, and an invited guest speaker on Voice of America on the topic of Ukraine’s renewable energy investment market.
The Complainant is the owner under common law of the trademark, Jon Queen under the laws of the Commonwealth of Virginia, the State of Maryland and the District of Columbia. The domain name incorporates matter constituting replicas and imitations of the Jon Queen name and mark. The unauthorized use by the Respondents of the Jon Queen name and mark constitutes trademark infringement. The international finance community associates the name of Jon Queen with the person described in the opening paragraphs of this Complaint.
The Respondent, on behalf of a fictitious registrant, has intentionally appropriated the name and mark of Jon Queen with the intent to malign, cause confusion, mistake and deception regarding the Complainant. By the aforesaid actions the Respondent is improperly trading upon the Complainants reputation and goodwill and is impairing the Complainant’s valuable rights in and to the Jon Queen name and mark.
The Respondent has no rights or legitimate interests with respect to the domain name that is the subject of the Complaint. The following is submitted in support of said claim:
There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the domain name(s) or a name corresponding to the domain name(s) in connection with a bona fide reason. The domain name is believed to have been acquired on behalf of a former romantic interest of the Complainant in order to defame his name, reputation and goodwill.
The Respondent (as an individual, business, or other organization) has never been commonly known by the domain name.
The Respondent is making an illegitimate non-commercial or fair use of the domain name, with what appears to be the sole intent to defame and tarnish the trademark or service mark of Jon Queen.
The domain name, www. was registered in order to prevent the Complainant, the owner of the trademark or service mark from reflecting the mark in a corresponding domain name. In fact, the Complainant has been precluded from the development of a website bearing his own name and mark as a result of the actions of the Respondent.
By using the domain name, www., the Respondent intentionally detracts, in a malicious manner and for personal or corporate gain, internet users to the Respondent’s web site, while impairing the Complainant’s valuable rights in and to the Jon Queen name and mark.”
There are two documents annexed in support of the Complaint: (1) the WHOIS information pertaining to the Domain Name registration; and (2) the Domain Name registration agreement between Respondent and the Registrar. There is no documentary evidence of Complainant’s use of his name in commerce as a source identifier for goods and services. Further, as noted above, Complainant raises allegations of unauthorized use and trademark infringement, but provides no discussion (or evidence) of the actual use to which the Domain Name is being put. 5. Parties’ Contentions A. Complainant
Complainant’s contentions are set forth in full in the “Factual Background” section above. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the 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 Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The first question to address is whether Complainant holds any trademark rights in JON QUEEN. The Panel answers this question, based on the record before it, in the negative. Complainant concedes that he has no registered trademark in JON QUEEN. Complainant’s arguments in support of his claim to have unregistered trademark rights in his personal name are set forth in their entirety in the “Factual Background” section above. The Complaint contains no citation to, or discussion of, any court decisions or decisions under the Policy addressing the issue of unregistered trademark rights in a personal name.
The question of personal names also having trademark status for purposes of the Policy has arisen in numerous prior decisions under the Policy. None of these decisions was discussed or even cited in the Complaint. Paragraph 1.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions Second Edition (“WIPO Overview 2.0) states in relevant part (with emphasis added):
“Personal names that have been registered as trademarks are generally protected under the UDRP. While the UDRP does not specifically protect personal names as such, in situations where a personal name unregistered as a trademark is being used for trade or commerce, the complainant may be able to establish common law or unregistered trademark rights in that name. In order to do so, proof of use of the person's name as a distinctive identifier of goods or services offered under that name would normally be required.
The name in question needs to be actually used in trade or commerce as an identifier of goods or services to establish unregistered trademark rights for the purpose of the UDRP. Merely having a famous name (such as a businessperson who does not actually use his or her name as an identifier for the business engaged in, or a religious leader), or making broad unsupported assertions regarding use of such name in trade or commerce, would not necessarily be sufficient to show unregistered trademark rights.”
In this case, the Complaint contains nothing but “broad unsupported assertions” as that phrase is used in WIPO Overview 2.0. There is no discussion of specific actual use of the name JON QUEEN as a source identifier for goods or services, much less any evidence of such use. Moreover, as the leading decisions under this rubric have held, the mere fact that someone is well known in the business world does not, by itself, mean that one’s personal name serves as a common law trademark. Evidence of use as a mark is required. See Vanisha Mittal v. info@,WIPO Case No. D2010-0810 (“Celebrity status, on its own, does not provide a complainant with rights in a trademark or service mark, which is the bottom line requirement for a complainant to satisfy paragraph 4(a)(i) of the Policy”; “The evidence provided by the Complainant is extremely sparse”); David Pecker v. Mr. Ferris,WIPO Case No. D2006-1514 (it is “incumbent on a complainant, except in the most obvious cases, to provide evidence in support of a claim to rights in a personal name for the purposes of the Policy”); Israel Harold Asper v. Communication X Inc.,WIPO Case No. D2001-0540 (“there is no evidence that the Complainant has ever used his personal name for the purpose of merchandising or other commercial promotion of goods and services, or that he intended to do so”).
The record in this case lacks any evidentiary basis for concluding that Complainant has used JON QUEEN as a mark in commerce.
Accordingly, the Panel concludes that this Complaint fails to satisfy Policy paragraph 4(a)(i). B. Rights or Legitimate Interests
The Panel need not decide this element under the Policy, having rejected the Complaint under Policy paragraph 4 (a)(i). C. Registered and Used in Bad Faith
The Panel need not decide this element under the Policy, having rejected the Complaint under Policy paragraph 4 (a)(i). The Panel observes, however, that Complainant alleged bad faith on two separate grounds, but offered absolutely no evidence in support of either ground. Thus, this Complaint also would have failed under Policy paragraph 4(a)(iii) for want of proof. 7. Decision
For the foregoing reasons, the Complaint is denied.
Robert A. Badgley
Sole Panelist
Dated: November 1, 2011
Full & Egal Universal Law Academy