Complainant is Unarius Educational Foundation d/b/a Unarius Academy of Science of El Cajon, California, United States of America ("United States"), represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States.
Respondent is D Privacy Service, Identity Protect Limited of Godalming, United Kingdom of Great Britain and Northern Ireland ("United Kingdom") / David Brydson, Bestfit Solutions Corp of Portland, Oregon, United States, self-represented, and Thomas Miller, represented by Kelsal & Associates PC, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with Mesh Digital Limited (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 25, 2017. On September 26, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 27, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on September 29, 2017, 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 October 2, 2017.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 3, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 23, 2017. Respondent David Brydson's Response was filed with the Center on October 23, 2017. On October 23, 2017, Respondent Thomas Miller requested an extension of 45 days to file a Response, to which Complainant objected. In accordance with the Rules, paragraphs 5(b) and 5(e), the Response due date was extended until November 2, 2017. Respondent Thomas Miller's Response was filed with the Center on November 2, 2017.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on November 9, 2017. 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.
In the Response filed by Respondent Thomas Miller on November 2, 2017, a further request was made therein for a 45-day extension of time to file a Response or to amend the Response. The Panel declined that request in an administrative panel procedural order dated November 20, 2017.
3. Preliminary Issues Concerning the Proper Respondent in this Proceeding and the Request by Respondent Thomas Miller for a Further Extension of Time
In this proceeding there are three listed Respondents. At the time the Complaint was filed in this proceeding, the disputed domain name was registered under the name of D Privacy Service, Identity Protect Limited. At some point thereafter, the Center was advised that the registrant of the disputed domain name is David Brydson, Bestfit Solutions Corp. Complainant then filed an Amended Complaint on October 2, 2017 to add David Brydson, Bestfit Solutions Corp as a Respondent in the proceeding.
On October 23, 2017, David Brydson filed a Response in the matter asserting that while he had originally registered the disputed domain name in 2013, his ownership of the disputed domain name ceased in 2015. As such, Mr. Brydson requested that his name and that of Bestfit Solutions Corporation be removed from the proceeding. Also on October 23, 2017, a request was filed by attorneys representing Thomas Miller for an extension to file a Response. In that request, it was asserted that Thomas Miller is the owner of the disputed domain name. The Center granted a 10-day extension to file a Response and a Response was subsequently filed on behalf of Thomas Miller on November 2, 2017.
The question before the Panel is who, in fact, is the proper Respondent in this proceeding. The disputed domain name remains listed under DomainM Privacy Service, Identity Protect Limited; Thomas Miller asserts that he is the owner of the disputed domain name; and David Brydson, Bestfit Solutions Corp asserts that he has had no interest in the disputed domain name since 2015 and should be removed from this proceeding.
The Panel, having reviewed the case file and the evidence submitted by the Parties, concludes that all three listed Respondents should remain as Respondents in this proceeding. D Privacy Service, Identity Protect Limited is currently listed as the registrant in the WhoIs records for the disputed domain name and thus should remain a party to this proceeding. As for Thomas Miller, it appears to the Panel that he has, at the very least, a beneficial interest in the disputed domain name, not only because he claims to be the owner of the disputed domain name but because Complainant itself has made claims against Thomas Miller (a/k/a Tom Miller) regarding the disputed domain name in a demand letter, dated March 7, 2016, and in communications thereafter.
As to David Brydson, Bestfit Solutions Corp, the Panel declines to remove this Respondent from this proceeding. The Registrar's September 27 verification response affirmatively names David Brydson, Bestfit Solutions Corp as the registrant of the disputed domain name. The Response filed by David Brydson contains no evidence supporting the contention that David Brydson, Bestfit Solutions Corp ceased to have any interest in the disputed domain name after 2015. While Mr. Brydson asserts that he has no interest in the disputed domain name, the Panel notes that the domain name servers listed in the Whois record provided by Complainant for the disputed domain name at the time the Complaint was filed are "", "" and "". These servers appear to be related to David Brydson, Bestfit Solutions Corp. Given that Mr. Brydson admits that he originally registered the disputed domain name in 2013 and used such up to 2015, and given that the domain name servers supporting the current website at the disputed domain name are likely related to Mr. Brydson's company, it appears probable that David Brydson, Bestfit Solutions Corp may still have some sort of interest in the disputed domain name. Consequently, as there is no evidence showing otherwise, the Panel believes that David Brydson, Bestfit Solutions Corp should remain as a listed Respondent in this proceeding.
With regard to the request by Respondent Thomas Miller for a further 45-day extension, the Panel finds that the arguments submitted by Thomas Miller did not establish that exceptional circumstances existed under paragraph 5(e) of the Rules that would justify yet another extension beyond the 10-day extension that had been granted by the Center. Respondent's arguments were simply that Thomas Miller had only recently learned of the proceeding (without providing any details or a date when that allegedly occurred). However, the record before the Panel shows that Thomas Miller was clearly aware of the dispute regarding the disputed domain name since at least March 2016 when he received a demand letter from Complainant's attorney concerning, inter alia, the disputed domain name, and it seems more likely than not, based on the Parties' submissions, that Thomas Miller was aware of the proceeding since at least October 4, 2017, when the Center retransmitted the Complaint to David Brydson, Bestfit Solutions Corp.
In any event, the Panel believes that Thomas Miller has had a fair opportunity to present his case, given the prior 10-day extension he was granted by the Center, and given that nothing has been submitted to show any exceptional circumstances for further extensions. 4. Factual Background
Complainant, Unarius Educational Foundation d/b/a Unarius Academy of Science, is a California nonprofit educational foundation. Complainant is a spiritual school that was founded by Ernest L. and Ruth E. Norman in 1954. The term "Unarius" is an acronym coined by Ernest L. Norman for "Universal Articulate Interdimensional Understanding of Science".
Complainant has published and distributed a number of books since 1954 regarding the teachings of Ernest L. Norman and currently offers classes, books and videos concerning its beliefs and teachings. Complainant has owned the domain name since 1996, and has used such for a website concerning its activities, beliefs and teachings. Complainant also offers books and videos for sale through its website at . Complainant owns a United States federal trademark registration for UNARIUS (Registration No. 2927368), which issued to registration on February 22, 2005, and which covers various educational services in Class 41 such as workshops and classes in the field of spiritual development and the distribution of educational course materials.
Respondent Thomas Miller, who purports to be the owner of the disputed domain name, was a former student of Ernest L. and Ruth Norman. At some point in the 1980s there was a falling out between Thomas Miller and the Normans and Mr. Miller left the Unarius Academy of Science. Mr. Miller and Complainant have doctrinal differences that continue to this day. The disputed domain name was registered in 2013 by David Brydson and appears to have been used since that time for a website that promotes the teachings of Ernest L. Norman.
In March 2016, Complainant sent a demand letter to Thomas Miller regarding his use of the mark UNARIUS, the disputed domain name, and the website at the disputed domain name. At that time, Complainant offered Thomas Miller a licensing arrangement. In further communications between the Parties' respective attorneys through May 2016, the proposed licensing arrangement was rejected. Complainant subsequently filed the instant proceeding over a year and a half later on September 25, 2017. 5. Parties' Contentions A. Complainant
Complainant asserts that it is a non-profit educational foundation that was founded in 1954 by Ernest L. and Ruth Norman. Complainant contends it is a spiritual and scientific school and that it owns and has used the mark UNARIUS since 1964 in connection with its educational goods and services.
Complainant contends that the disputed domain name is confusingly similar to Complainant's UNARIUS mark because it contains the UNARIUS mark in its entirety and at the head of the disputed domain name. Complainant also contends that the inclusion in the disputed domain name of the descriptive term "united" does nothing to dispel the confusing similarity.
Complainant argues that Respondent lacks any rights or legitimate interests in the disputed domain name because Respondent (a) is not in any way affiliated with, licensed or authorized by Complainant to use the name and mark UNARIUS, (b) is not engaged in a bona fide offering of goods and services, since Respondent is using the disputed domain name for a competing website, (c) is not commonly known by the disputed domain name, (d) has not used the disputed domain name for a legitimate noncommercial or fair use purpose, and (e) is using the disputed domain name to create initial interest confusion. Complainant contends that Respondent has used the disputed domain name to misleadingly divert consumers seeking Complainant's official website to Respondent's competing website from which Respondent solicits donations for its own benefit. Complainant also asserts that the use of a tiny disclaimer at the bottom of Respondent's website at the disputed domain name does not provide Respondent with a legitimate interest or immunize Respondent from intentionally seeking to mislead consumers as to the relationship between Respondent's website and Complainant.
Finally, Complainant asserts that Respondent registered and has used the disputed domain name in bad faith because Respondent is seeking to disrupt Complainant's relationship with its customers or potential customers, and/or is attempting to attract Internet users to its competing website. Complainant argues that Respondent's website at the disputed domain name is confusingly similar to Complainant's own website and, in fact, appears to be a website for Complainant itself. Complainant further argues that Respondent is clearly attempting to profit from the disputed domain name to either solicit donations or for a reputational advantage. Lastly, Complainant maintains that use of a tiny disclaimer at the bottom of Respondent's website is further proof that Respondent is clearly aware that the disputed domain name has the potential of creating a likelihood of confusion with Complainant and/or its website. B. Respondent
Respondent David Brydson, Bestfit Solutions Corp maintains that while he was the original party to register the disputed domain name in 2013, he ceased to be the owner of the disputed domain name in 2015. For the sake of clarity, references to Respondent shall hereafter be to the Respondent Thomas Miller, except where otherwise noted.
Respondent maintains that the disputed domain name and associated website is for a community of people interested in the teachings and works of Ernest L. Norman. Respondent asserts that its community was formed in 2012 by Thomas Miller, a former student of the Normans.
Respondent contends that he has taken steps to distance itself from Complainant and its website by including a disclaimer on its website. Respondent also maintains that his website is dedicated to communicating about the principles espoused by Ernest L. Norman and is not a commercial website, such as Complainant's website, as it does not solicit payments for educational services or charge a fee for books, tapes or DVDs. Respondent only seeks an appropriate shipping fee to send the books, tapes and videos.
Respondent asserts that Unarius is a religion that was founded by Ernest L. Norman. Respondent maintains that it has no desire to be associated with Complainant, as Complainant's practices and beliefs are cult-like and at odds with the true teachings of by Ernest L. Norman. In that regard, Respondent sets out a number of claimed doctrinal differences between Respondent and Complainant, as well as actions allegedly taken by Complainant that Respondent maintains are not consistent with the beliefs of true "Unarians" and the teachings of the late Ernest L. Norman.
Respondent argues that the disputed domain name is not confusingly similar to Complainant's mark as there are highly noticeable differences between the two. Respondent also argues that the meaning of Complainant's trademark is different from Respondent's meaning of Unarius. Respondent stresses that the disputed domain name and associated website center on the teachings of Ernest L. Norman, does not trade off of Complainant's website and has coexisted with Complainant's website for many years. Respondent further argues that "Unarius" is a term that was coined by Ernest L. Norman in the 1940s and has been put into common usage ever since to describe his followers and their religion.
Respondent contends that it is making legitimate noncommercial or fair use of the disputed domain name. Respondent asserts that it has gone to great lengths to disassociate itself from Complainant, such as by including a disclaimer on the website at the disputed domain name. Respondent argues that it has made a credible investment in the development of the website at the disputed domain name and that Thomas Miller has been known by the "Unarius United" website name for many years by both Complainant and followers of the teachings of Ernest L. Norman who align themselves with Thomas Miller. Respondent maintains that the disputed domain name and associated website are noncommercial in nature or purpose and have been used for the legitimate purpose of providing the public with information regarding the teachings of Ernest L. Norman and to distribute free copies of books authored by Ernest L. Norman. Lastly, Respondent contends that it has a legal right to use the term "Unarius", as the term is commonly used by Respondent and others to identify their religion, is protected as free speech, and cannot be owned exclusively by Complainant or relied upon by Complainant to prevent Respondent or others to describe their religion.
Finally, Respondent argues that it has not registered or used the disputed domain name in bad faith, given that Respondent has openly operated the website at the disputed domain name for four years and Complainant has not previously objected. Respondent also contends that there can be no bad faith as the coined term "Unarius" is in the public domain and is being used by Respondent and others to fairly describe their religion and to distribute the books of Ernest L. Norman, which are in the public domain, for free. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith. A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.2.1. Complainant has provided evidence that it owns and uses the UNARIUS mark, which has been registered and used in the United States well before Respondent registered the disputed domain name.
With Complainant's rights in the UNARIUS mark established, the remaining question under the first element of the Policy is whether the disputed domain name (disregarding the generic Top-Level Domain ".com") is identical or confusingly similar with Complainant's mark. See WIPO Overview 3.0, section 1.11.1; B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally UDRP panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold. WIPO Overview 3.0, section 1.7.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant's UNARIUS mark as it incorporates the UNARIUS mark in its entirety at the head of the disputed domain name. The addition of the word "united" does not distinguish the disputed domain name from Complainant's UNARIUS mark as it could be seen as suggesting that the disputed domain name is related or connected to Complainant. See, e.g.,Dr. Ing. h.c. F. Porsche AG v. Rojeen Rayaneh,WIPO Case No. D2004-0488. Given that the threshold for satisfying the first element is low, the fact that the disputed domain name fully includes the UNARIUS mark is sufficient to meet the threshold. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the UNARIUS mark and in showing that the disputed domain name is identical or confusingly similar to that trademark. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
Here, Respondent claims that he has a legitimate interest in the disputed domain name because Respondent is using the disputed domain name for a noncommercial fair use purpose and because the disputed domain name is based on the coined term "Unarius" which is commonly used by Respondent and others to refer to a religion. Complainant, on the other hand, contends that UNARIUS is a trademark owned by Complainant and that UNARIUS identifies Complainant's not-for-profit educational foundation.
At the outset, the Panel notes that the Parties appear to disagree as to whether or not the principles and teachings of Ernest L. Norman constitute a religion. Respondent, on the one hand, argues that they constitute a religion known as Unarius. Complainant, on the other hand, maintains that Unarius is a "spiritual and scientific" group founded by Ernest L. and Ruth Norman. Regardless, the religious significance of the teachings of Ernest L. Norman are beyond the scope of a UDRP proceeding. Similarly, it is beyond the scope of this UDRP for the Panel to evaluate doctrinal differences between the Parties or to evaluate the practices or beliefs of the respective Parties, as set forth by Respondent in his Response. The issue before the Panel concerns the disputed domain name and whether Respondent has a legitimate interest in such.
The initial question for the Panel is what does the term "Unarius" relate to (i.e., is it a common word, or is it a source identifier). The Panel has evaluated the evidence submitted by both Parties. There are a number of articles that have been submitted by the Parties that refer to Unarius. For the most part, what these show is that the term "Unarius" is typically used to refer to Complainant's organization, the Unarius Academy of Science. Indeed, the articles submitted by Respondent, even those that negatively portray Complainant, specifically use the term "Unarius" to refer to Complainant's organization, the Unarius Academy of Science. The evidence submitted by the Parties also shows that believers of the principles espoused by Ernest L. and Ruth Norman are typically referred to as "Unarians" and their beliefs are referred to as "Unarian" or "Unariun" beliefs. Even Respondent refers to the claimed religion as the "Unarian Religion" and its followers as "Unarians". Thus, from what is before the Panel, UNARIUS appears to refer to Complainant's organization and is also a trademark owned and used by Complainant for its educational services.
The next question, then, is whether Respondent's use of the UNARIUS mark in the disputed domain name is a legitimate and fair use. Respondent maintains that it has sought to distance itself from Complainant and that it uses the disputed domain name for a website that promotes the principles of Ernest L. Norman, the founder of the Unarius Academy of Science. In support of that contention, Respondent has submitted copies of its website at the disputed domain name. These include a disclaimer near the top of the home page of the website and one at the bottom of the website that each specify that the website "is not affiliated with the Unarius Academy of Science." These website pages, though, differ from the website pages provided by Complainant when the Complaint was originally filed in this proceeding. The only disclaimer that appeared on the website at the disputed domain name at that time was a small disclaimer at the very bottom of the website, and not at the top of the home page. The fact that Respondent has changed its website after the Complaint was filed to include another disclaimer implies to the Panel, at the very least, that Respondent understands that consumers may be confused by the disputed domain name and associated website. WIPO Overview 3.0, section 3.7.
But putting aside the discrepancy regarding the disclaimer at Respondent's website, the Panel concludes that Respondent's website at the disputed domain name, on its face, is likely to create confusion as it suggests that it may be an authorized or official website of Complainant. The website, for example, includes a prominent logo at the top of the home page next to a photo of Ernest L. Norman that features the term "Unarius" separate from and in a different color from the term "United". The term "United" is in a muted color with the words "science of life" right next to it in the same color as "Unarius". Notably, a banner that scrolls at the top of Respondent's website uses the phrase "Unarius Science of Life", a phrase that could be confused with Complainant's name "Unarius Academy of Science". Moreover, the website at the disputed domain name includes references to "Unarius" as an organization and offers, like Complainant, educational materials such as books, videos and even classes on "Unarian" precepts. To be sure, Respondent has made little effort to distance itself from Complainant, as it claims. Apart from the small disclaimer at the bottom of the website, Respondent has not done anything to separate its website from the likely association it could have with Complainant, the owner of the UNARIUS trademark. It is thus highly likely that Internet users encountering the disputed domain name through a search engine may be initially confused and believe that the associated website belongs either to Complainant or to a party authorized or related to Complainant. See, e.g., Broan-Nutone, LLC v. Ready Set Sales,WIPO Case No. D2010-0920.
Thus, while Respondent may have a legitimate interest or free speech right in creating and operating a website to discuss its claimed "Unarian Religion", "Unarian" beliefs, its doctrinal differences with Complainant and/or the works of the late Ernest L. Norman, it is not legitimate for Respondent to register and use a confusingly similar domain name that suggests a connection to Complainant (a "parent" group from which Respondent splintered), and which resolves to a website that on its face appears to be a legitimate or authorized website of Complainant. In that regard, it should be noted that Respondent's website does not criticize or comment on Complainant or its beliefs, but (falsely) appears as an authoritative website related to "Unarius" and "Unarian" beliefs set forth by Ernest L. Norman, the founder of the Unarius Academy of Science. Thus, a consumer visiting the website through the disputed domain name would likely not know at first glance that Respondent's website was unconnected to Complainant.
Moreover, the disputed domain name on its face is itself confusing, particularly as there has been a clear schism between the followers of the teachings of Ernest L. Norman (a point Respondent admits in commenting on Complainant's practices and beliefs). The disputed domain name, however, far from creating separation between the two groups could actually be seen or understood by some as suggesting that the various past and present followers of the Unarius Academy of Science have regrouped into a single entity or have reconciled and are now united. See WIPO Overview 3.0, section 2.5.1.
While this may not have been Respondent's original intent, the evidence that is before the Panel suggests that Respondent registered a confusingly similar disputed domain name in or about 2013 and then used such for purposes of diverting Internet users, and likely those interested in "Unarian" beliefs, to its competing website – a website that on its face did not make clear its lack of connection to Complainant and which appeared to be an official website authorized by or related to Complainant. The use of a very small disclaimer at the bottom of Respondent's website, surrounded with other text, is simply not sufficient and does not function to dispel the confusion created by Respondent in using a domain name which appears to be related to Complainant. See, e.g., Thirty & Co. v. Jake Marcum, Marcum Creative, LLC,WIPO Case No. D2016-1212; Educational Testing Service v. Prinn Sukriket,WIPO Case No. D2011-0439.
Indeed, Respondent did not have to use a disputed domain name that on its face suggested a connection to Complainant in order to promote his own views on "Unarian" beliefs or precepts and, instead, could have legitimately used any number of other domain names that would not be seen as connected to Complainant. That Respondent chose to use a confusingly similar domain name to promote Respondent's views is not a legitimate or bona fide use where, as here, the associated website appears to be connected to authorized or licensed by Complainant. The fact that some consumers may now associate the disputed domain name with Respondent does not render Respondent's original registration and use of a confusingly similar disputed domain name into a legitimate use. See, e.g., Madonna Ciccone, p/k/a Madonna v. Dan Parisi and "M",WIPO Case No. D2000-0847; eBay Inc. v. ebayMoving / Izik Apo,WIPO Case No. D2006-1307.
The Panel wants to emphasize that there is an inherent tension in this matter between Respondent's documented actions and Respondent's free speech right to express his views on Complainant, Complainant's beliefs, or "Unarian" beliefs or precepts generally. While paragraph 4(c)(iii) of the Policy embodies the principle of legitimate non-commercial or fair use, such as free speech principles, paragraph 4(c)(iii) is not a defense in a situation where, as here, a disputed domain name is used to falsely suggest an affiliation with a trademark owner. See WIPO Overview 3.0, sections 2.4 and 2.5. Put another way, the principle of free speech is limited, inter alia, where a party seeks to intentionally pass itself off as another party for his or her own benefit; that is the scenario before the Panel. The particular circumstances in this proceeding, based on the evidence submitted and as discussed above, show that Respondent far from trying to distance himself from Complainant and its views (i.e., to criticize Complainant) actually registered a disputed domain name that would be seen as connected to Complainant, and then intentionally used the disputed domain name, despite receiving a demand letter from Complainant, with a website that would likely be seen as connected to or associated with Complainant, the owner of the UNARIUS mark. Respondent did so not for the purpose of bona fide criticism or comment about Complainant or its views, but to imply an association with Complainant for Respondent's own benefit (either financially or reputationally). Such an attempt to imply a false affiliation does not constitute a legitimate or fair use. Id.,Section 2.5.1.
In sum, given that Complainant has established with sufficient evidence that it owns rights in the UNARIUS mark, the Panel concludes that Respondent does not have any rights or legitimate interests in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(iI) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely:
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
Here, Respondent has registered a disputed domain name that fully incorporates Complainant's UNARIUS mark and organization name at the head of the disputed domain name with the word "united". This combination, as already noted, is likely to be viewed by consumers as suggesting a website related to or authorized by Complainant. The evidence that is before the Panel shows that the term "Unarius" is typically used as a reference to Complainant. Indeed, even the negative articles provided by Respondent concerning Complainant refer to "Unarius" as the Unarius Academy of Science. Thus, while Respondent may have wanted to create a website to promote Respondent's own views on the teachings of Ernest L. Norman, Respondent registered and used the disputed domain name to redirect Internet users, and in particular consumers interested in Complainant or "Unarian" beliefs, to a website that appeared to be related to or authorized by Complainant from which Respondent promoted his own version of the "Unarian" teachings of Ernest L. Norman and to distribute educational materials. Respondent could have chosen many other domain names to promote Respondent's views, but instead chose a domain name that Respondent likely knew would be seen as connected to Complainant. Such actions make it more likely than not that Respondent registered and used the disputed domain name, which is based on Complainant's UNARIUS mark, to intentionally and misleadingly attract Internet users to Respondent's website for Respondent's own benefit. WIPO Overview 3.0, section 3.1.4 (and cases cited therein).
Accordingly, the Panel finds that Complainant succeeds under this element of the Policy. 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 disputed domain name be transferred to Complainant.
Georges Nahitchevansky
Sole Panelist
Date: November 30, 2017
Full & Egal Universal Law Academy