Complainant is Jams/Endispute, LLC of Irvine, California, United States of America, represented by J. Mark Holland & Associates, United States of America.
Respondent is Ken Flynn of Charlestown, Massachusetts, United States of America, represented pro se. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Wild West Domains, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 13, 2012. On February 14, 2012, the Center transmitted by email to Wild West Domains, LLC a request for registrar verification in connection with the Domain Name. On the same date, Wild West Domains, LLC transmitted by email 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 email communication to the Complainant on February 20, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on February 23, 2012.
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” 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 February 24, 2012. In accordance with the Rules, paragraph 5(a), the due date for a Response was March 15, 2012. On March 15, 2012 the Center received an email communication from Respondent.
The Center appointed Robert A. Badgley, Harrie R. Samaras and David E. Sorkin as panelists in this matter on May 7, 2012. 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. 4. Factual Background
Complainant is a leading provider of arbitration services for parties who prefer to resolve their disputes outside of the court system. Complainant holds several trademark registrations for the mark JAMS, including a registration dated July 24, 1990 with the United States Patent and Trademark Office for “alternative dispute resolution services.”
Respondent registered the Domain Name on February 12, 2009. The Domain Name resolves to a website that is critical of Complainant’s arbitration services in general and one of Complainant’s arbitrators in particular. Respondent alleges that the JAMS arbitrator reached the wrong outcome in an arbitration and did so through dubious means. The web page concludes: “Beware and avoid JAMS Arbitration.”
Through counsel, Complainant sent Respondent a cease-and-desist letter on September 23, 2009. Respondent did not reply to this letter. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has satisfied the three elements of the Policy and that it is entitled to a transfer of the Domain name. Complainant alleges that Respondent is improperly seeking to damage its business by offering disparaging (and “possibly libelous”) comments about Complainant and one of its arbitrators. Complainant also asserts that Respondent has employed meta-tags to enhance the prominence of Respondent’s website on search engines. B. Respondent
Respondent did not submit a formal response, but stated in an email to the Center that he is “making a legitimate noncommercial and fair use of the domain name, without intent for commercial gain or to mislead or divert consumers or tarnish the trademark or service mark at issue.” 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
Complainant holds rights in the mark JAMS through registration and use. The Panel further finds that the Domain Name is confusingly similar to the JAMS mark, since the Domain Name incorporates the mark and adds the descriptive term “arbitration.” The addition of this descriptive term does not diminish the confusing similarity between the mark and the Domain Name. If anything, the term “arbitration” reinforces the confusing similarity, since Complainant is an arbitration service provider.
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied. B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish his rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent has a legitimate interest in the Domain Name under the Policy, pursuant to paragraph 4(c)(iii) quoted above. The Panel reaches this conclusion without having to accept or reject any of the assertions made by Respondent at his website.
Complainant did not cite any case authority under the Policy to support its claim. Nevertheless, the Panel is aware of a divergence of opinion among panelists under the Policy who have addressed the question whether a domain name may be legitimately used by a respondent solely as a “gripe site” to levy criticism of a complainant mark owner and/or its products or services. (This is a different, and more difficult, question than the context where the use of a pejorative term in the domain name announces that the visitor to the website is likely to encounter criticism of the complainant.)
This Panel holds, under the fairly sparse record here, that Respondent is using the Domain Name as a genuine “gripe site.” Accordingly, the Panel concludes that Respondent has a legitimate interest under paragraph 4(c)(iii). In one of the early decisions in this context, Bridgestone Firestone v. Myers,WIPO Case No. D2000-0190 (July 6, 2000), the panel observed:
Although free speech is not listed as one of the Policy’s examples of a right or legitimate interest in a domain name, the list [in ¶ 4.c] is not exclusive, and the Panel concludes that the exercise of free speech for criticism and commentary also demonstrates a right or legitimate interest in the domain name under Paragraph 4(c)(iii). The Internet is above all a framework for global communication, and the right to free speech should be one of the foundations of Internet law.
See also Howard Jarvis Taxpayers Association v. Paul McCauley,WIPO Case No. D2004-0014 (April 22, 2004) (denying complaint where “Respondent's website appears to be a classic criticism site” and there was no evidence of intent to derive commercial gain or tarnish complainant’s mark).
In the instant case, Respondent has denied ever making any money from his use of the Domain Name, and there is no evidence in the record to the contrary. The Domain Name appears to be used solely in sincere pursuit of Respondent’s free speech rights. It is apparent from Respondent’s website that he claims to have had an unsatisfactory experience with the JAMS arbitration process. Whether the content of the website is actionable under the law for reasons unrelated to the Domain Name itself is not for this Panel to consider.
The Panel unanimously believes that this is not a clear case of cybersquatting which the Policy was designed to address.
The Panel unanimously concludes that Policy paragraph 4(a)(ii) has not been satisfied by Complainant under the facts in this record. C. Registered and Used in Bad Faith
Because the Panel has rejected the Complaint under Policy paragraph 4(a)(ii), there is no discussion here of alleged bad faith registration or use of the Domain Name. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Robert A. Badgley
Presiding Panelist
Harrie R. Samaras
Panelist
David E. Sorkin
Panelist
Dated: May 14, 2012
Full & Egal Universal Law Academy