The Complainant is Shaili Chopra, India, represented by Vishesh & Associates, India.
The Respondent is Aimee Allison, United States of America (“United States”), represented by Shades of Gray Law Group, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 14, 2020. On March 16, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 17, 2020, the Registrar transmitted by email to the Center its verification response confirming that the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 27, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 16, 2020. In accordance to paragraph 5(b) of the Rules, the Respondent was granted the automatic four calendar day extension for response. The due date for Response was April 20, 2020. The Response was filed with the Center on April 20, 2020. The Center appointed Luca Barbero as the sole panelist in this matter on May 3, 2020. 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 Complainant is the founder of the Indian channel available at “www.shethepeople.tv”, which was started in 2015 and is aimed at empowering Indian women by sharing stories of role models and seeking to change the discourse on, about and for women. The Complainant is a partner to the UN Women India office in their effort towards gender equality in India and has won the 2012 Ramnath Goenka Award for Excellence in Business Journalism. The Complainant has won the Stanford Draper Hills Fellow in 2019, as well as a Vital Voices Fellowship and a Woman influence Award in 2017 for her work with “She The People”. The Complainant has submitted as Annex 9 to the Complaint a registration certificate for the following trademark, issued in the name of the company DIGITALIST TECH MEDIA PVT LTD, of which the Complainant is founder (as indicated on the Complainant’s website “https://www.shethepeople.tv/terms-conditions”) and director: - Indian trademark registration No. 2889646 for SHE THE PEOPLE (word mark), registered on January 27, 2015, in class 41; The Complainant is the owner of The Respondent is a United States citizen, residing in Oakland, California. She is a political activist and organizer focusing on women of color in progressive politics in the United States. The Respondent has provided evidence of ownership of the following trademarks consisting of, or comprising the words “She the people”: - United States trademark registration No. 5877966 for SHE THE PEOPLE (word mark), registered on October 8, 2019, in class 41; - United States trademark registration No. 5877967 for SHE THE PEOPLE (word mark), registered on October 8, 2019, in class 35. The disputed domain name The Complainant contends that the disputed domain name With reference to rights or legitimate interests in respect of the disputed domain name, the Complainant states that, in view of the Complainaint’s trademark registration and common law rights, the Respondent has no rights or legitimate interests in the disputed domain name. The Complainaint also states that the Respondent has registered the disputed domain name in the attempt to create an association with the Complainant’s online service under the name and trademark SHE THE PEOPLE, thus sabotaging the Complainant’s goodwill and reputation. The Complainant asserts that her platform at The Complainant also points out that, in view of the world renown and goodwill of her business, the Respondent must have been well aware of the Complainant and her services when she registered the disputed domain name, and that, considering that the only two search results for “she the people” relate to the Complainant and the Respondent, the latter must have deliberately registered the disputed domain name with the Complainant’s mark in mind. The Complainant submits that the Respondent registered and is using the disputed domain name in bad faith since the Respondent has fraudulently registered the disputed domain name, and is using it to intentionally attract Internet users to her website for commercial gain, whilst creating a likelihood of confusion with the Complainant’s trademark and domain name. B. Respondent The Respondent does not deny similarity of the disputed domain name with the Complainant’s trademark, but argues that trademark rights are territorial, and that the Complainant failed to provide evidence of any business carried out in the United States or in support of any of her factual contentions. She also states that the Complainant failed to establish the second and third elements. The Respondent claims that she has rights and legitimate interests in respect of the disputed domain name since she used the disputed domain name to offer bona fide services long before learning of the Complainant and the Complainant’s domain name on July 9, 2019 (when she received a cease and desist letter from the Complainant), and that she began posting content in connection with the disputed domain name on 2018. The Respondent states that she registered the disputed domain name, on November 9, 2016, in preparation for publishing her book and forming her organization about the engagement of women of color in politics. Indeed, the Respondent explains that, by February 2015, the Respondent conceived the idea to write the first book about women of color in American politics, and establish an organization dedicated to elevating the political voice and leadership of women of color in the United States. At that time, she was serving as President of Democracy in Color, a nonprofit political organization focused on race and politics in America. The Respondent thus selected “She the People” as the title of her book and the name of such organization. The name deliberately evokes the preamble to the United States Constitution, which begins: “We the People of the United States, in Order to form a more perfect Union … do ordain and establish this Constitution for the United States of America.” The Respondent informs the Panel that her website at the disputed domain name has hosted numerous events designed to engage women of color in politics, including a widely publicized forum for presidential candidates in September 2018. The Respondent highlights that there is nothing in the records that indicates the Respondent’s use of any symbols, artwork or other indicia, connected to the Complainant’s brand, in the Respondent’s advertising, décor, signage or trade dress. The Respondent also indicates that there is no evidence to support the Complainant’s assertions concerning her global fame, and that the Complainant does not explain how an individual residing in California would have heard of the Complainant’s website before November 2016, considering the Complainant’s services are primarily prominent in India. In view of the above, the Respondent underlines that even if the Complainant has acquired a large global following at present, five years after the Complainant’s foundation, it does not mean the Complainaint was globally recognized in 2016 after one year’s existence. In addition, the Respondent points out that the Respondent and the Complainant are engaged in very different businesses: whilst the Complainant’s website offers entertainment, cultural, and general news content aimed squarely at women in India, the Respondent, by contrast, provides content and services directed exclusively at women of color in the United States, and focusing entirely on American politics. Therefore, the Respondent asserts that it is highly unlikely that she would have known of the Complainant’s existence at the time. Therefore, the Respondent denies the Complainant’s allegations about the Respondent’s bad faith, stating that the Complainant has provided no evidence and has thus failed to establish the third element. 6. Discussion and Findings According to paragraph 15(a) of the Rules: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following: (i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant has established rights over the trademark SHE THE PEOPLE based on the trademark registration cited under section 4 above and the related trademark certificate submitted as Annex 9 to the Complaint. As highlighted in section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the first element functions primarily as a standing requirement, and the threshold test for confusing similarity typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name. In the case at hand, the Complainant’s trademark SHE THE PEOPLE is entirely reproduced in the disputed domain name, with the mere addition of the TLD “.org”, which is commonly disregarded under the first element confusing similarity test (section 1.11 of the WIPO Overview 3.0). Therefore, the Panel finds that the Complainant has proven that the disputed domain name is identical to a trademark in which the Complainant has established rights according to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests It is well established that the burden of proof lies on the Complainant. However, satisfying the burden of proving a lack of the Respondent’s rights or legitimate interests in respect of the disputed domain name according to paragraph 4(a)(ii) of the Policy is potentially onerous, since proving a negative can be difficult considering such information is often primarily within the knowledge or control of the Respondent. Accordingly, in line with previous UDRP decisions, it is sufficient that the Complainant show a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name in order to shift the burden of production on the Respondent. If the Respondent fails to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy or on any other basis, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. In the case at hand, the Complainant states that the Respondent has no rights or legitimate interests in the disputed domain name since the Complainant is the “prior adopter, user and registered proprietor of the trademark ‘SHETHEPEOPLE’ and domain name shethepeople.tv in comparison to that of the Respondent” and “the Complainant has been using her trademark ‘SHETHEPEOPLE’ since 11th October, 2014 having worldwide reputation which is tarnished by the Respondent by using the identical mark”. Accordingly, the Respondent would have registered the disputed domain name “identical to the Complainant’s well-known trademark” in an attempt to create an association with the “Complainant’s online service under the name and trademark SHETHEPEOPLE”. On the other hand, the Respondent claims to have registered the disputed domain name, without being aware of the Complainant and her trademark, and that the Respondent started publishing contents on the corresponding website in 2018, in order to promote services directed exclusively at women of color in the United States and focusing entirely on American politics. Based on the documents and statements submitted by the Parties, it is clear that there is no relationship between the Parties. Furthermore, the Panel finds that the Respondent has used the disputed domain name in connection with a bona fide offering of services before receiving notice of the dispute. Indeed, the Complainant has not submitted sufficient elements to demonstrate the well-known character of the Complainaint’s trademark outside India and, therefore, that the Respondent was or ought to be aware of the Complainant’s trademark. The Respondent has instead provided plausible explanations as to the reason why she registered and used the disputed domain name and submitted evidence demonstrating that the Respondent already used the disputed domain name to publish content addressing issues of interest to women of color voters before receiving the Complainant’s cease and desist letter in July 2019. Moreover, the Parties have different areas of focus and target audiences, since the Complainant’s website offers entertainment, cultural, and general news content dedicated to women in India, while the Respondent is focusing on participation to American politics of women of color, without making any reference to the Complainant on the Respondent’s website. Therefore, the Panel concludes that the Complainant has not proven the requirement prescribed by paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel finds that the Complainant has failed to demonstrate that the disputed domain name was registered and is being used by the Respondent in bad faith. The Panel also finds that there is no element in this case that could demonstrate that the Respondent, on balance of probabilities, intended to target the Complainant and the Complainant’s trademark though the use of the disputed domain name. The Panel notes that, at the time the disputed domain name was registered by the Respondent, the Complainant had been offering her services under the trademark SHE THE PEOPLE in India and had been the proprietor of the Indian trademark for some 2 years. There is no evidence however, that the Complainant’s trademark might have been used outside India while the Complainant’s website clearly targets users located in India. Moreover, beyond conclusory allegations about the well-known character of the Complainant’s trademark SHE THE PEOPLE, the Complainant has failed to demonstrate that the Respondent was likely to have been aware of the Complainant and her trademark at the time of the Respondent’s registration of the disputed domain name based on the Complainant’s alleged reputation. Also the use of the disputed domain name does not show an intention to target the Complainant or the Complainant’s competitors, as the contents displayed on the website published at the disputed domain name are directed exclusively at women of color in the United States, and focusing entirely on American politics and not to the Complainant’s initiative in support of Indian women promoted through the Complainant’s website in India. On the contrary, the Panel finds that the Respondent has proven that she registered and used the disputed domain name to promote the Respondent’s own initiative in the United States, without attempting to attract or divert users intended for the Complainant. In view of the above, the Panel finds that the Complainant has failed to demonstrate that the Respondent registered and used the disputed domain name in bad faith according to paragraph 4(a)(ii) of the Policy. 7. Decision For the foregoing reasons, the Complaint is denied. Luca Barbero
Sole Panelist
Date: May 18, 2020
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