Write a decision resolving that complaint based upon auDA’s Dispute Resolution Policy and WIPO’s Procedural Rules.
3Decision to Resolve a Complaint
DECISION TO RESOLVE A COMPLAINT
Decision to Resolve a Complaint
The parties involved in the case are Sam Monks (nee Evans) of address 3803 The Harbour View Building, 7 Pitt St, Sydney 2000 who is the Petitioner vs. Sam Evans of Apartment 35, 278 Eping Road, Maquarie Park, NSW 2109 who is the Defendant. The disputed name of the domain is MelbourneITLtd123Fake St Melbourne VIC 3000.
The Petitioner states that the name of the domain is similar to that of which pertain her rights. She affirms that the name of the domain and the birth name of the Petitioner are similar, Sam Evans. Furthermore, the Petitioner was born in Melbourne, holds an Australian citizenship and is the Chief Executive Officer, widely known of an ASX- 300 listed company. The Petitioner also states that the Defendant has no privileges or justifiable claims to the name of the domain. She submits that the Defendants did not attain the privilege of using the name of the domain at birth given that the Defendant’s name from the Register of Births, Deaths and Marriages is Samantha Meagher. Furthermore, based on the Petitioner, the Defendant is creating confusion, sidetracking present and potential customers and tainting the name of the Petitioner by misleadingly using the name of the domain. Subsequently, the Petitioner affirms that the name of the domain is being used with intent to deceive since it was triggered by the aspiration to disturb the business activities of the Petitioner. Additionally, the cataloging of the name of the domain was with intent to deceive as it hinders the Petitioner from registering the Domain under Dispute for her own use. The Petitioner requests a decision that the name of the domain be transferred to her.
On the matter of the name of the domain being identical or in a confusing way same to a name, brand name or service brand in which the Petitioner has rights; the Defendant states that Petitioner ceased to have any rights to the name upon her nuptials where she had her name changed, which happened before she lodged the grievance. In addition, she states that the Petitioner is not the only one named Sam Evans in Australia and that she does not have a catalogued brand name in her own name. The Defendant insists that she has legitimate interest in the name of the domain citing the strong attachment to the name after the demise of her friend in a spear-fishing tragedy on Sydney Harbor. The cataloging of the Domain under Dispute is thus a commemorative plaque to her late friend. The Defendant submits that the Petitioner is ignorant to the fact that multiple people can share the id.au second –level domain which the Defendant has in fact catalogued. She acknowledges that she is presently is the head of the fan club , which is named after the Petitioner and the activities of the club include costume play in which they make their own versions of the Petitioner’s couture gowns thus denying the fact that the costumes have been worn by the Petitioner. The Defendant further insists that having plastic surgery to look more similar to the Petitioner is irrelevant to the dispute as she states that she is not trying to inhabit the Petitioner’s life, but simply exploring the possibility of making income as a celebrity look alike.
. These considerations will be well thought-out in turn. 1In harmony with the fourth paragraph of the Policy, to advance with this schedule, the Petitioner must prove (A) that the disagreed name of the domain is equal or in a confusing way alike to a brand in which it has rights, (B) that the Defendant has no privileges or justifiable interests in respect of the disputed name of the domain, and (C) that the disputed name of the domain was catalogued and is being used with an intent to deceive
, the Disputed Name of the domain is similar to the birth name of the Petitioner. The fact that the Petitioner changed her name upon her marriage holds less significance given the length of time that the Petitioner has used the name and the publicity she has acquired using her birth name. It was thus established that the Petitioner met the requirement as per the fourth paragraph of the au Name of the domain Dispute Resolution Policy.2On the matter of identical or confusing similar to a name
Despite the fact that the Defendant claims that the Disputed Name of the domain was used in memorial of her friend who died in a tragic accident, there is no website activity showing the commemoration of her friend rather it is used as Fan Club for the Petitioner. The panel does not accept that the mere cataloging and ownership of the name of the domain satisfies as showing legitimate interest. In this light, the panel concludes that the Defendant has no rights and legitimate interest in deference to the name of the domain.
, part b, identifies four illustrative concepts which can be used to show the use of the disputed name of the domain with intent to deceive. In the first circumstance, the panel established that the Defendant did not acquire the name of the domain primarily for the purpose of selling costumes as the website substantially consisted of a Fan Club following the Petitioner. The panel however determined that in selling costumes resembling those of the Petitioner and reshaping her body through plastic surgery to look like the Petitioner, the Defendant was on all odds attempting to divert traffic intended for the Petitioner’s website for personal and commercial gain. Following this circumstance, the panel was hence satisfied that the Defendant catalogued and used the name of the domain with intent to deceive.3The fourth paragraph of the Policy
Given the fact that a major number of the panelists find that the Complaint is defensible, the alleged intent of reverse name of the domain hijacking must hence be rejected.
The abovementioned rationales, with particular harmony with the requirements of paragraph 4 of the au Name of the domain Dispute Resolution Policy, compels the panel to rule that the name of the domain MelbourneIT Ltd 123 Fake St Melbourne VIC 3000 be duly transferred to the Petitioner.
2 Petitioner’s personal name, or any business, company, legal or trading name used by the Petitioner and catalogued with the relevant Australian body