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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Estate of Stanley Getz aka Stan Getz v. Peter Vogel

Case No. D2000-0773

 

1. The Parties

1.1 The Complainant is the Estate of Stanley Getz aka Stan Getz, an estate being duly probated under the laws of the State of California, in the Superior Court of California, County of Los Angeles, Case Number BP 010, 041, by its Administrator, Beverly P. McGovern. The address of the Administrator is 5 Holland Road, Monroe, New York, United States of America.

1.2 The Respondent is Peter Vogel, an individual who furnished to the Registrar an address at 8127 W. Eastman Pl., Apt. 206, Lakewood, Colorado, United States of America. In a subsequent telephone conversation with Complainant's representatives, Respondent gave a current address of 8155 Fairmount, Apt. 2135, Denver, Colorado, United States of America.

 

2. The Domain Name and Registrar

The domain name at issue is "stangetz.com", which domain name is registered with Network Solutions, Inc. ("NSI"), based in Herndon, Virginia, United States of America.

 

3. Procedural History

3.1 A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on July 11, 2000, and the signed original together with four copies was received on July 13, 2000.

3.2 On July 21, 2000, WIPO received the Whois Search Results for the domain name at issue.

3.3 The Whois details confirmed that the domain name is registered with NSI, is currently in active status, and that the Respondent is the current registrant of the name.

3.4 The WIPO Center determined that the Complaint satisfies the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"), the Uniform Rules, and the Supplemental Rules. The required fees for a sole Panelist were paid on time and in the required amount by the Complainant.

3.5 No formal deficiencies having been recorded, on July 31, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of August 20, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI’s confirmation. In addition, the Complaint was sent by express courier to the postal address given. Having reviewed the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent."

3.6 On September 13, 2000, not having received any response, the WIPO Center sent the parties a formal Notification of Respondent Default.

3.7 On September 29, 2000, in view of the Complainant's designation of a single Panelist, the WIPO Center appointed M. Scott Donahey to serve as sole Panelist.

 

4. Factual Background

4.1 Complainant is the Estate of Stan Getz, ("Getz") the world famous jazz musician. During his lifetime, Getz performed on over one hundred and fifty recorded albums and was the subject of several books and numerous magazine and newspaper articles.

4.2 Getz won numerous awards and polls. Getz won the Grammy award five times, the Downbeat Magazine Reader's Poll eighteen times (including the Hall of Fame), and Downbeat Magazine's Critics Poll five times.

4.3 Prior to his death on June 6, 1991, Getz performed at jazz festivals and in concert halls and clubs around the world, and his name is associated with international music styles, such as bossa nova.

4.4 On February 16, 1999, Respondent registered the domain name at issue. On the same date Respondent registered the domain name "charlesmingus.com", using the name of another world famous, deceased jazz musician.

4.5 To date, Respondent has not used the domain name to develop a web site.

4.6 Complainant's representative has sent Respondent a letter requesting transfer of the domain name at issue.

4.7 In a telephone conversation between Complainant's representatives and Respondent, Respondent offered to sell to complainant the domain name at issue for an amount in excess of Respondent's out-of-pocket costs associated with the domain name.

 

5. Parties’ Contentions

5.1 Complainant contends that Respondent has registered as a domain name a name which is identical to the name of the decedent the estate of whom is the Complainant in this action, that Respondent has no rights or legitimate interests in respect to the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.

5.2 Respondent has not contested the allegations of the Complaint.

 

6. Discussion and Findings

6.1 Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable."

6.2 Since both the Complainant and Respondent are domiciled in the United States, and since United States’ courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States. Since Getz was a resident of the State of California at the time of his death and since his estate is being probated in the courts of the State of California under California law, to the extent that it would assist the Panel, the Panel shall also look to the law of the State of California.

6.3 Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,

2) that the Respondent has no legitimate interests in respect of the domain name; and,

3) that the domain name has been registered and is being used in bad faith.

6.4 Complainant contends, and the Panel finds, that during his life, Getz acquired common law trademark rights in the name "Stan Getz" and the right in and to the publicity of the name, Stan Getz. Julia Fiona Roberts. v. Russell Boyd, ICANN Case No. D2000-0210; Steven Rattner v. BuyThisDomainName (John Pepin), ICANN Case No. D2000-0402; Jeanette Winterson v. Mark Hogarth, ICANN Case No. D2000-0235.

6.5 California Civil Code Section 3344.1 provides that the use of the name of a deceased personality passes through his estate and cannot be used absent the express consent of his heirs. Thus, Complainant has standing to bring this complaint.

6.6 The domain name at issue is identical to the common law trademark "Stan Getz."

6.7 Complainant has alleged and Respondent has failed to deny that Respondent has no legitimate interests in respect of the domain name at issue. Alcoholics Anonymous World Services, Inc. v. Raymond, WIPO Case No. D2000-007; Ronson Plc v. Unimetal Sanayai ve Tic. A.S., WIPO Case No. D2000-0011.

6.8 Respondent was aware of the fame and secondary meaning attached to the name of the decedent at the time Respondent registered the domain name at issue.

6.9 Respondent offered to sell the domain name at issue to Complainant for an amount in excess of his out-of-pocket costs associated with the domain name. This is evidence of bad faith registration and use under Paragraph 4(b)(i) of the Policy. World Wrestling Federation v. Bosman, ICANN Case No. D99-0001.

 

7. Decision

For all of the foregoing reasons, the Panel decides that the domain name registered by Respondent is identical to the common law trademark in which the Complainant has rights by virtue of the laws of the State of California, that the Respondent has no rights or legitimate interests in respect of the domain name at issue, and that the Respondent's domain name has been registered and is being used in bad faith. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name "stangetz.com" be transferred to the Complainant.


 

M. Scott Donahey
Presiding Panelist

Dated: October 10, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0773.html

 

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