The Complainant is Rebecca Brightly, United States of America (“United States”), self-represented.
The Respondent is Jorge Copez, 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 December 7, 2020. On December 8, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 9, 2020, 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 the Complainant on December 9, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 12, 2020. 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 14, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 3, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2021. The Center appointed Evan D. Brown as the sole panelist in this matter on January 12, 2021. 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 originally registered the disputed domain name in 2007 but the registration unfortunately lapsed in 2020. The Complainant blames that lapse on her credit card – apparently the one used to pay for domain name registration – having been stolen, used fraudulently, and subsequently canceled by the issuing bank. While the Complainant was sorting out these credit card issues, the domain name registration expired and the Respondent acquired it thereafter. The Complainant claims common law rights in the mark REBECCA BRIGHTLY, which she has used in connection with services relating to massage therapy, blogging, dance, writing, and fitness. The Complainant provided evidence of past use of this mark, going back as far as at least 2008, in connection with a blog, the sale of her e-courses and books, and social media content, including on Facebook, YouTube, Instagram, LinkedIn, and Twitter. The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and, that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied, namely, that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The Complainant has demonstrated that each of these elements have been satisfied. A. Identical or Confusingly Similar There is no question that the disputed domain name In situations where a personal name unregistered as a trademark is being used for trade or commerce, a complainant may be able to establish unregistered trademark rights in that name. David Michael Bautista, Jr. v. Quantec LLC / Whois Privacy Services Pty Ltd / Lisa Katz, Domain Protection LLC,WIPO Case No. D2016-0397 (complainant developed sufficient goodwill in his name to give rise to common law trademark rights); Julia Fiona Roberts v. Russell Boyd,WIPO Case No. D2000-0210 (“registration of her name as a registered trademark or service mark was not necessary and […] the name ‘Julia Roberts’ has sufficient secondary association with Complainant that common law trademark rights do exist under United States trademark law”). To establish unregistered trademark rights in a personal name for purposes of the UDRP, the Complainant must show that her name has become a distinctive identifier that consumers associate with the Complainant’s services. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.5. Relevant evidence demonstrating such acquired distinctiveness (also referred to as secondary meaning) includes a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys. WIPO Overview 3.0, section 1.3. In this case, the Complainant has submitted evidence, which the Respondent has not refuted, to establish relevant secondary meaning of the Complainant’s personal name. This includes screenshots from its website and blog (at “www.rebeccabrightly.com”), from 2008 until the lapse in registration in 2020, which feature the mark REBECCA BRIGHTLY prominently in the header. The Panel takes particular note of how the Complainant’s blog, formerly posted at the disputed domain name, featured the mark REBECCA BRIGHTLY in an orange-auburn script typeface, prominently displayed in the header of the web page. Also of note is the Complainant’s past use of the composite mark DANCE WORLD TAKEOVER BY REBECCA BRIGHTLY. Finally, the Complainant provided evidence of use of various social media accounts featuring information and other material promoting the Complainant’s services, published in close connection with the mark REBECCA BRIGHTLY. Based on the evidence in the record, the Panel is satisfied the Complainant has established relevant unregistered trademark rights, for the purposes of the UDRP, in the mark REBECCA BRIGHTLY. The Complainant has accordingly met the burden under this first UDRP element. B. Rights or Legitimate Interests The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of demonstrating rights or legitimate interests shifts to the Respondent. Though the Complainant (who is not represented by counsel) did not neatly argue all the points typically gathered under this heading of the UDRP (in reference to paragraph 4(c) of the Policy), the Panel can extract the following assertions from the record as a whole: - The Respondent’s name does not resemble the disputed domain name. - The Complainant has not authorized the Respondent to use the REBECCA BRIGHTLY mark in connection with the disputed domain name. - The Respondent acted merely opportunistically to register the disputed domain name, without any legitimate interest in it, after the Complainant’s registration of it expired in July 2020. - Because the content at the disputed domain name does not contain contact information or other means to do business with the Respondent, the Respondent does not appear to be legitimately involved in the HVAC business, and thus has not and is not using the disputed domain name for any bona fide business purpose. Additionally, the Panel notes that the Respondent does not appear to be using the disputed domain name for any legitimate noncommercial or fair use – the web content published by the Respondent and found at the disputed domain name does not, for example, provide commentary concerning the Complainant or its goods or services that would, in light of free speech interests, be considered legitimate under the Policy. The Panel finds that the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. The Respondent has not come forth with any evidence to overcome that showing. The Complainant has succeeded under this second Policy element. C. Registered and Used in Bad Faith The Panel finds it more likely than not that the Respondent opportunistically grabbed the disputed domain name after the Complainant did not renew it in the summer of 2020. The Panel does not see any other logical explanation for the Respondent’s acquisition of the disputed domain name (which is used in connection with HVAC systems), and the Respondent did not provide any. The Panel will consider, along with this inference, that the Respondent intentionally sought to trade on the name of the Complainant which, through many years of use online, had become well known as a trademark. This is further supported by the fact that following Respondent’s registration of the disputed domain name, the Complainant’s mark was still featured on the website at the disputed domain name but spelled incorrectly (i.e., “Rebecca Brighlty”, where there “t” and “l” are inversed as compared to the mark). These facts support a finding that the disputed domain name was registered in bad faith. The Policy provides, at Paragraph 4(b)(iv), that bad faith can be shown when a Respondent, “by using the domain name, [has] intentionally attempted to attract, for commercial gain, Internet users to [its] 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 [its] web site . . .”. The Respondent’s conduct fits in this category. The Panel can think of no reason for the Respondent to use the disputed domain name – which contains the Complainant’s mark in its entirety, with no other words – to publish information about HVAC systems, other than to lure internet users who had come to know the Complainant and her services during her many prior years’ use of the disputed domain name. The Complainant has satisfied this third 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 Evan D. Brown
After registering the disputed domain name, the Respondent, without the Complainant’s authorization, used the disputed domain name to publish web content about HVAC systems. 5. Parties’ Contentions A. Complainant
Sole Panelist
Date: January 29, 2021
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