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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

World Emergency Relief v Chuck Thompson

Case No. D2000-0844

 

1. The Parties

The Complainant is World Emergency Relief ("World Emergency"), a non-profit religious corporation organized and existing under the laws of the State of California, with its principal place of business at 2270 Camino Vida Roble, Suite D, Carlsbad, California 92009, USA. Respondent is Chuck Thompson, of 686 South Arroyo, Parkway No. 39, Pasadena, California 91105, USA.

 

2. The Domain Name and Registrar

The domain name at issue is "worldemergency.com". The Registrar is Network Solutions, Inc. of 505 Huntmar Park Drive, Herndon, Virginia 20170, USA.

 

3. Procedural History

A complaint pursuant to the Uniform Domain Name Dispute Resolution Policy (implemented by the Internet Corporation of Assigned Names and Numbers ("ICANN") on October 24, 1999) ("UDRP Policy") and under the rules for the UDRP implemented by ICANN on the same date ("UDRP Rules") was submitted to the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") on July 21, 2000, in a hard copy transmitted by air courier.

On July 27, 2000, the Center requested verification from the Registrar, NSI. Verification was received on August1,2000.

On July 28, 2000, the Center sent an e-mail to Complainant requesting an electronic version of the Complaint, and seeking confirmation that the Complaint was submitted to the Registrar. On July 31, 2000, the Center received a response from the Complainant by e-mail, confirming that the Complaint was submitted to the Registrar, and forwarding a copy of the Complaint electronically. The Center acknowledged the Complainant's response by e-mail.

On August 12, 2000, the Center completed its checklist of formal requirements for the Complaint.

On August 14, 2000, the Center forwarded the Complaint to the Respondent together with a Notification of Complaint and Commencement of Administrative Proceeding. The Complaint was forwarded to Respondent and its technical and zone contact by courier, facsimile and e-mail. The Center set the date for response as September 2, 2000.

Having received no response from the Respondent by September 2, 2000, the Center issued a Notification of Respondent Default to the parties on September 19, 2000. The Notification was forwarded to the Respondent by courier, facsimile and e-mail, and to the Complainant by e-mail.

On September 20, 2000, the Center forwarded its Request for Declaration of Impartiality and Independence to this Panel. This Panel completed and returned the Declaration of Impartiality and Independence on September 26, 2000, by e-mail and facsimile.

On September 25, 2000, the Center received an e-mail from Respondent, responding to some of the allegations of the Complaint. The Center acknowledged late receipt of the response on September27, 2000. The Center advised the Respondent that because the response was received after the deadline of September 2, 2000 the Response was considered late, and that consideration of the response by the Panel was at the Panel's sole discretion. The Center copied this e-mail to the Complainant.

On September 29, 2000, the Center issued its Notification of Appointment of Administrative Panel and Projected Decision date, which it forwarded to the parties by e-mail.

The Center transmitted the case file to this Panel by courier that same day, September29,2000.

On October 10, 2000, this Panelist forwarded the Center a Procedural Order, requesting that the Respondent advise when he commenced using WORLD EMERGENCY or WORLDEMERGENCY.COM in connection with his goods or services. The Panel permitted the Respondent ten calendar days from the date of issuance of the Interim Order to provide the requested information. Complainant was then permitted ten days to respond to the Respondent's submission, if any.

In addition, this Panelist submitted to the Center a revised Statement of Acceptance and Declaration of Impartiality and Independence that same day. This Panel revised its Statement of Acceptance and Declaration of Impartiality and Independence based upon a review of the hard copy of the case file, which revealed that Complainant's prior counsel (not Complainant's authorized representative in the present proceeding) is co-counsel with this Panelist in another, unrelated case.

The Center forwarded Procedural Order No. 1 and the revised Statement of Acceptance and Declaration of Impartiality and Independence to Complainant's authorized representative and to Respondent by e-mail on October 11, 2000.

Respondent failed to respond to Procedural Order No. 1. Complainant filed a "Response" in connection with Procedural Order No. 1 on October 30, 2000, which the Center forwarded to this Panel on October 31, 2000.

 

4. Factual Background

Complainant is the owner of U.S. Trademark Registration No. 1,641,646 for the mark WORLD EMERGENCY RELIEF and Design. The composite word and design mark is as follows:

In the registration, Complainant makes no claim to the exclusive right to use the words "emergency relief" apart from the mark as shown. This Panel's own query of the records of the U.S. Patent and Trademark Office confirms that this registration is active and incontestable. The registration covers emergency medical services, namely, providing food and medical supplies to needy persons.

 

5. Parties' Contentions

A. Complainant

Complainant describes itself as follows:

World Emergency is an interdenominational fellowship of Christians which seeks to aid needy people throughout the world. World Emergency's charitable outreach provides food, clothing, medical care, shelter, and education to refugees and needy families in such countries as Burundi, Liberia, Romania, the Dominican Republic as well as in the United States in conjunction with the Native American Emergency Relief in Flagstaff, Arizona and Calexico, California. World Emergency is a leader in promoting the responsible and ethical use of gifts-in-kind world-wide. World Emergency uses its web page to solicit charitable donations of money, gifts-in-kind, as well as services, for all of its programs. Complaint, par. 12.

Complainant asserts that it has used WORLD EMERGENCY RELIEF since 1985, and that it registered the domain name "worldemergency.org" about December, 1999 for a period of ten years.

Complainant asserts that Respondent registered the domain name "worldemergency.com" and uses the website connected to this domain name to advertise and promote the goods and services of a number of entities. Complaint, par. 14. Complainant asserts that Respondent provides emergency services and relief services in disaster and rescue situations, and sells medical kits, emergency food and water supplies, water purification systems, emergency temporary shelters, and camping equipment. Id. Complainant asserts that "worldemergency.com" appears as a header on each of the respective pages of Respondent's web page. Id.

Complainant asserts that Respondent advertises numerous partner sites which apparently provide charitable services, including "The Land of Milk and Honey" which exports various relief products to Asia and Europe; "Creative Development" which provides temporary shelters and real estate; "Team Security" which provides bodyguards, alarm systems and security equipment; and "The Brethren Assistance Program" which distributes a percentage of the profits from the other companies to charitable organizations. Complaint, par. 15.

Complainant asserts that it learned of Respondent's domain name about January 31, 2000, and "contacted Respondent by e-mail advising it of World Emergency's concerns regarding use of a virtually identical domain name." Complaint, par. 16. Complainant sent a letter to Respondent the next day, requesting that it cease further use of the domain name. Complainant received no response to the letter. Id. Complainant does not mention whether it received a response to its e-mail. Complainant sent the letter to a Mr. Harry Childs, whose identity was provided by the Respondent's Internet service provider. Id. Complainant asserts that it contacted Respondent by telephone, but that Respondent refused to cease using the domain name. Id.

Complainant sent further correspondence on March27,2000 to "each of the addresses for Respondent" demanding that Respondent cease further use of the domain name and transfer it to Complainant. Complaint, par. 17. Complainant asserts that one of the addresses it used was in the Philippines, listed on Respondent's web page. Of the two remaining addresses, only one was listed on the WHOIS records for the Respondent. Complainant asserts it received no response to its letters. Id.

Complainant asserts that both it and Respondent have

used the World Emergency name and mark in providing of emergency relief services and associated supplies. In addition, as evident from Respondent's web page, [Respondent] is also offering to export food and other items for relief efforts outside of the United States. It also provides educational services and seeks charitable donations for various charitable organizations world-wide.

Complaint, par. 18. Complainant asserts that

in view of World Emergency's longstanding use of WORLD EMERGENCY RELIEF since 1985 and its widespread fame throughout the United States and the world in providing relief to those in need, the only reasonable inference is that Respondent registered and used the domain name "worldemergency.com" with the purpose of disrupting World Emergency's business, and with the intent of attracting, for financial gain, Internet users to its website, or other online locations, by suggesting that "worldemergency.com" was World Emergency's website and that Respondent was somehow affiliated with World Emergency, or was otherwise sponsored or licensed by or affiliated therewith.

Id.

Complainant further asserts that Respondent's offering of its services and products and soliciting charitable contributions "can only be viewed as an attempt to confuse those who may be seeking WORLD EMERGENCY on the Internet into believing that they can donate to [Respondent's] 'causes.'" Complaint, par. 19. Complainant alleges that Respondent further evidenced its intent to confuse the public when it changed its e-mail address on about March 10, 2000 from "thework@webtv.net" to "worldemergency@mail.com". Id. Complainant asserts that Respondent's

use of this domain name has likely caused persons seeking to reach World Emergency on the Internet and persons otherwise exposed to Respondent's domain name and website, to mistakenly believe that Respondent is part of World Emergency or otherwise affiliated with or sponsored or licensed by, World Emergency.

Id.

B. Respondent

In its untimely-submitted response of September 28, 2000, Respondent asserts as follows:

We do not believe that there is any valid reason for the dispute of this domain name. First of all, when we registered the domain name, there was no malicious intention to deceive the public to connect our website with the World Emergency Relief Organization. We checked if the domain name was available through Network Solutions and it was. We believed that the domain name matches what our company does. We sell Emergency Products and provide emergency & security services. We are a totally commercial website and we never linked ourselves to World Emergency Relief Organization which is a non-profit organization.

In addition, we never receive any mails or donations from the sponsors of World Emergency Relief Organization ever since our website was set up. Therefore, we do not believe that our domain name is in conflict with World Emergency Relief Organization. In addition, we are even having difficulty trying to get sales for our own business through the website. This indicates that the domain name does not, in any way, deviate the public into thinking that we are connected to the World Emergency Relief Organization and we are not claiming so in our website.

World Emergency Relief Organization has been claiming that we have maliciously intended to set up this domain name to diverge their public to our website. They are incorrect in believing this so. Before they notified us, we never heard of them before.

In addition, we have every right to keep our domain name. We registered it with the Network Solutions that let us know whether a domain name was available or not. We registered the domain name believing that the domain name we choose [sic] was available for us to use. World Emergency Relief Organization has set up a website under a different domain name. If it was their intention to acquire this domain name, we would have no reason or method to be aware of that. Except through Network Solutions that allowed us to register this name. And we did so not knowing that someone else "wants" that specific domain name.

 

6. Discussion and Findings

B. Applicable Policy Provisions

The UDRP Policy requires the Complainant to prove each of the following three elements, in order to prevail in this proceeding:

(i) That the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) That Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) That the domain name has been registered and is being used in bad faith.

UDRP Policy, Section 4(a)

It is not sufficient to prevail that a Complainant prove only registration in bad faith; rather, the Complainant must prove both registration and use in bad faith. See World Wrestling Federation Entertainment, Inc. v. Michael Bossman, Dispute No. D99-0001; Robert Ellenbogen v. Mike Pearson, Dispute No. D00-0001.

However, the UDRP Policy states that the following circumstances shall be evidence of the registration and use of a domain name in bad faith:

(i) Circumstances indicating that [the Registrant has] registered or 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 documented out-of-pocket costs directly related to the domain name; or

(ii) [the Registrant 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 [the Registrant has] engaged in a pattern of such conduct; or

(iii) [the Registrant has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, [the Registrant 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 or location or of a product or service on [its] web site or location.

UDRP Policy, Section 4(b)

B. Opinion of the Panel

Regarding element one, Complainant has proven that the domain name is confusingly similar to the service mark in which Complainant has rights. Specifically, the domain name "worldemergency.com" is nearly identical to the word portion of Complainant's registered and incontestable trademark WORLD EMERGENCY RELIEF and Design. The only word missing from the domain name is the term "relief," which is clearly of lesser significance, being disclaimed from the registered trademark. Since both Complainant and Respondent offer some forms of relief services or products under their names, this term is admittedly descriptive, and thus of lesser significance to their services, as well as to the registered trademark. Respondent has not contested Complainant's ownership of its mark, nor that Respondent's domain name is substantially identical to Complainant's mark. Complainant has proven element 1 of the Policy.

Regarding the second element, Respondent has failed to respond to this Panel's Procedural Order No. 1 requesting information on when it began using "worldemergency.com" and the term WORLD EMERGENCY for its services. By violating this Panel's Order, Respondent is in default and this Panel may draw any inferences from that default that it deems appropriate. It is appropriate to infer from Respondent's failure to respond to this Panel's Procedural Order that the Respondent did not use the term WORLD EMERGENCY in connection with its services until the date the domain name was registered. Complainant asserts the same in its Complaint and its Response. Therefore, Complainant has carried its burden of proof on this point as well.

With regard to the third element of the Policy, Complainant asserts that the evidence of registration and use in bad faith is that Respondent registered and used the domain name to disrupt World Emergency's business, and has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation or endorsement of Respondent's website or location or of a product or service on Respondent's website or location. Complaint, Par. 18. Respondent cannot and does not deny that it intentionally attempted to attract Internet users to its website for commercial gain. The central issue of the parties' dispute, therefore, is whether Respondent intentionally sought to disrupt Complainant's business, or attempted to create a likelihood of confusion between the Complainant's mark and the Respondent's domain name and website.

Here the Complainant has failed to meet its burden. The Complainant's proof on this point boils down to the following: Complainant has a registered, famous trademark; Respondent adopted a domain name confusingly similar to that trademark; Respondent adopted an e-mail address incorporating its new domain name; Respondent failed to respond to Complainant's request that it cease and desist; Respondent failed timely to respond to the Complaint; and Respondent failed to respond to this Panel's Procedural Order No. 1.

Noticeably absent from this showing is any proof that Respondent intentionally sought to disrupt Complainant's business, or attempted to create a likelihood of confusion as to the source, affiliation or endorsement of Respondent's website for a product or service thereon. Complainant has not asserted any similarities between its website and Respondent's, any effort to mislead consumers on the website, or even any disclaimers on the website which as of the time this proceeding was instituted would indicate that Respondent was even aware of Complainant's existence, contradicting Respondent's assertion to the contrary.

Addressing this issue, Complainant asserts that the only reasonable inference for Respondent to have adopted the domain name "worldemergency.com" for its emergency relief products and services and charitable donations is that Respondent registered and used the domain name for the purpose of disrupting World Emergency's business, and with the intent of attracting Internet users to Respondent's website "by suggesting that "worldemergency.com" was World Emergency's website and that Respondent was somehow affiliated with World Emergency, or was otherwise sponsored or licensed by or affiliated therewith." Complaint, Par. 18. To the contrary, there is another reasonable inference: that, as Complainant asserts in its own Complaint, Respondent registered the domain name "worldemergency.com" to refer to its "services of providing charitable donations for various charitable organizations world-wide"; Complaint, Par. 18 (emphasis added); and to its services "among the myriad of "emergency" and "relief" related goods and services." Complaint, Par. 19 (emphasis added). Respondent asserts, similarly, that it sells emergency products and provides emergency and security services. It would be just as reasonable to infer that Respondent chose its domain name as a term to describe the regions it serves and the services it provides.

Even drawing every negative inference from Respondent's failure to respond to this Panel's Procedural Order No. 1 and late filing of its response to the Complaint; and taking every one of Complainant's assertions as established conclusively, this Panel still does not have enough evidence before it to rule in Complainant's favor on this element. Therefore, Complainant has not proven this element.

 

7. Decision

Having considered this case in accordance with paragraph 15 of the Rules, the Panel finds that Complainant has failed to prove that Respondent has registered and used the domain name in bad faith for purpose of satisfying paragraph 4(a)(iii) of the Policy. Therefore, Complainant's request that the domain name "worldemergency.com" be transferred from Respondent to Complainant is DENIED.

 

 


 

 

Jordan S. Weinstein
Sole Panelist

Dated: November 20, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0844.html

 

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