Complainant is Adams County Society for the Prevention of cruelty to Animals a/k/a The Rick & Sally Meyers Animal Shelter of Gettysburg, Pennsylvania, United States of America, represented by Rhoads & Sinon LLP, United States of America.
Respondent is James Houseman of Littlestown, Pennsylvania, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Melbourne IT Ltd (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 15, 2013. On August 16, 2013, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On August 19, 2013, the Registrar transmitted by e-mail 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” 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 August 29, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 18, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 19, 2013.
The Center appointed Robert A. Badgley as the sole panelist in this matter on September 25, 2013. 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
Complainant operates an animal shelter in Gettysburg, Pennsylvania, United States, and operates a website accessible via its domain names and . Complainant’s website offers a variety of services under the names “Adams County Society for the Prevention of Cruelty to Animals” and “The Rick and Sally Meyers Animal Shelter”.
Respondent registered the Domain Name on July 28, 2013. The website contains some basic content which is highly critical of Complainant’s animal shelter operation. The top of Respondent’s website states: “M
What you really need to know about Officer Avery, the Adams County SPCA
and The Rick and Sally Meyers Animal Shelter.”
According to Complainant, Respondent has posted defamatory content about Complainant and its employees “in retaliation for the Complainant’s role in an investigation of animal cruelty that ultimately lead [sic] to criminal charges against Respondent.”
Complainant also annexes to its Complaint an e-mail from Respondent in which Respondent apparently offered to sell the Domain Name to Complainant. In the e-mail, Respondent announced that he had purchased 75 yard signs, and had finished the preparations of his website located at the Domain Name. The yard signs would direct people to the website. 5. Parties’ Contentions A. Complainant
Complainant’s salient factual contentions are set forth above or will be taken up below in context in the discussion of the three elements under the Policy. Complainant seeks a transfer of the Domain Name. 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
Complainant asserts common law trademark rights through use at its websites located at and . Respondent does not dispute this assertion of rights.
The record evidence of Complainant’s use of MEYERS SHELTER as a source identifier, as opposed to its other monikers THE RICK AND SALLY MEYERS ANIMAL SHELTER and ADAMS COUNTY SPCA, is fairly thin. It appears that Complainant actually uses the latter two marks more consistently to identify and distinguish its services. However, Respondent himself provides some evidence of Complainant’s use of the MEYERS SHELTER mark as a source identifier, since the very top of Respondent’s website located at the Domain Name features in large typeface “M.”
On a balance of probabilities, the Panel concludes that there is just enough evidence in the record to support Complainant’s undisputed claim to common law rights in the mark MEYERS SHELTER. The Domain Name is identical to that mark.
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 its 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.
Respondent has not invoked any of the foregoing (or any other) bases for a claim of rights or legitimate interests in the Domain Name. The Panel declines to recognize some sort of “free speech” motive here, since Respondent did not file a Response to invoke any such motive, and because Respondent offered to sell the Domain Name to Complainant. Above all, this appears to be a case of pure harassment, and not an actual attempt to exercise one’s free speech rights.
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
It bears repeating that the foregoing factors are not exclusive; bad faith under the Policy may be found on other bases as the circumstances warrant. In the present case, the undisputed record indicates that Respondent is pursuing a vendetta against Complainant. Respondent is evidently seeking to divert traffic from Complainant’s website in order to disparage Complainant in retaliation for the parties’ past run-ins.
Respondent also apparently sought to sell the Domain Name (and or other unidentified domain names) to Complainant, asking Complainant to “make an offer.” Given the acrimonious past between the parties, and the fact that Respondent’s website and attendant yard signs were intended to propagate criticism of Complainant, it is fair to conclude that Respondent would not have accepted an offer simply to recoup his out-of-pocket costs. Rather, the Panel interprets the solicitation of an offer as having been made against the backdrop of a threat to wage a campaign of harassment against Complainant. The Panel thus concludes that bad faith may be found under Policy paragraph 4(b)(i).
In any event, even if the conduct here did not fit squarely within one of the four enumerated bad faith factors set forth above, the Panel would have no difficulty concluding that Respondent, through his vindictive conduct, has registered and is using the Domain Name in bad faith within the meaning of the Policy.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is satisfied. 7. Decision
For 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.
Robert A. Badgley
Sole Panelist
Date: September 25, 2013
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