Meera Kaul v. UAE Spooks / Bar Dubai Police Station
Claim Number: FA2009001911164
Complainant is Meera Kaul (“Complainant”), represented by Meera Kaul, California, USA. Respondent is UAE Spooks / Bar Dubai Police Station (“Respondent”), United Arab Emirates.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <meerakaul.net>, registered with NameCheap, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 2, 2020; the Forum received payment on September 3, 2020.
On September 3, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <meerakaul.net> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 9, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 29, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@meerakaul.net. Also on September 9, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 2, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. as Panelist.
On October 5, 2020 the Panel issued an Interim Order requesting that Complainant submit additional information and evidence. Complainant made such additional submission on October 7, 2020.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Meera Kaul, is an individual providing business consulting services in the field of entrepreneurship directed to women. Complainant has rights in the trademark MEERA KAUL based upon its use in commerce dating back to 2012, its operation of the website <meerakauls.com>, and its registration of the mark with the United States Patent and Trademark Office (“USPTO”) as of June 23, 2020). Respondent’s <meerakaul.net> domain name, registered on April 10, 2018, is identical or confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s MEERA KAUL mark.
Respondent does not have rights or legitimate interests in the <meerakaul.net> domain name. Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or for a legitimate noncommercial or fair use, but instead uses the domain to impersonate and defame Complainant.
Respondent registered and uses the <meerakaul.net> domain name in bad faith. Respondent uses the disputed domain name to harm Complainant’s reputation by impersonating it presenting misinformation. Additionally, Respondent provided false or misleading WHOIS information when registering the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
C. Additional Submissions
In its additional submission, made in response to the Panel’s request for further information and evidence, Complainant provided a copy of the WHOIS record for the disputed domain name, evidence of its trademark rights and reputation prior to the filing of its USPTO trademark application, and a detailed explanation of inaccurate information contained in Respondent’s website.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "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."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable and supported allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the MEERA KAUL mark based upon registration with the USPTO. Registration of a mark with the USPTO is generally sufficient to establish rights in the mark per Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”) Complainant provides a screenshot of its USPTO registration certificate. Therefore, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <meerakaul.net> domain name is identical or confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s MEERA KAUL mark. A domain name that incorporates a mark in its entirety and merely adds a generic top-level domain is generally found to be confusingly similar to the mark under Policy ¶ 4(a)(i). See SCOLA v. Wick, FA 1115109 (Forum Feb. 1, 2008) (concluding that “the domain name at issue is identical to [the] complainant’s SCOLA mark, as the only alteration to the mark is the addition of the generic top-level domain “.com.”). As the <meerakaul.net> domain name incorporates the entirety of the MEERA KAUL mark and adds only the “.net” gTLD, the Panel finds that the disputed domain name is identical or confusingly similar to such mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
As Complainant makes no claim regarding Policy ¶ 4(c)(ii) and Respondent has not made any submission in this case, the Panel will not address whether Respondent is commonly known by the disputed domain name apart from noting that nothing in the record of this case suggests that it is so known.
Complainant does argue that Respondent fails to use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use, and instead uses the domain to impersonate and defame Complainant with inaccurate information. While Respondent has made no submission in this case, the Panel notes that its <meerkaul.net> website appears to display content that is critical of Complainant, displaying an altered photograph of Complainant and listing a series of law suits which it claims have been brought against Complainant. There has been much discussion in UDRP decisions on whether the posting of criticisms of a complainant is a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and there have been differing opinions amongst Panelists based on a number of factors including the text which composes the domain name itself, whether the criticism is legitimate or merely a pretext for some other objective, and the laws of the jurisdiction(s) to which the parties are subject. Some Panels have taken the approach that no rights or legitimate interests can accrue where a disputed domain name, solely by reference to its own text, gives no indication that it is being used for critical commentary or information. This has been described as the “impersonation” approach where the entirety of the domain name consists primarily of a complainant’s mark (<trademark.tld>) or perhaps adds words that do not themselves convey criticism (e.g., a geographic location or the name of a type of product or service). Panels favoring this view have held that the disputed domain name is impersonating the complainant by seeking to attract users with no indication that the domain name and its website are not affiliated with the complainant or that it seeks to convey critical information. Casino Guichard Perrachon v. Contact Privacy Inc. Customer 0153135447 / Privacy Inc. Customer 0153136304 / Sophie Vermeille, SteeleHolt, D2018-2633 (WIPO Jan. 2, 2019) (“the right to legitimate criticism does not necessarily extend to registering or using a domain name even where such domain name consists of a trademark plus an additional term, if it impersonates or suggests sponsorship or endorsement by the trademark owner.”) However, other Panels have taken the position that even a domain name that, itself, fails to convey its critical purpose, may support rights or legitimate interests where its resolving website hosts content that is legitimately critical and non-commercial. This latter approach has been favored by some Panels who view such criticism as protected by the First Amendment of the United States Constitution, i.e., the “free speech” approach, and this has most frequently been applied in cases where the parties are located in the United States of America.[i] See, United Security Seals, Inc. d/b/a Edgemaker v. USA10.com Web Site Services, FA 1399225 (Forum Aug. 24, 2011) (Despite fact that domain, itself, contains the entirety of the trademark (edgemakerpro.com) and gives no indication that it resolves to a gripe site, the content of the site is clearly protected by the First Amendment since it contains only comments and criticism and does not seek any commercial gain for Respondent).
This “schism” between the two approaches was noted in the WIPO Overview 2.0, at par. 2.4, and was expertly discussed at great length by the Panel in Dover Downs Gaming & Entertainment, Inc. v. Domains By Proxy, LLC / Harold Carter Jr, Purlin Pal LLC, D2019-0633 (WIPO May 22, 2019). Despite that Panel’s own preference for the “free speech” approach, the need for a consistent view amongst UDRP Panels to create a more reliable system was cited[ii] and reference was made to the more recent WIPO Overview 3.0, par. 2.6.2 which states that “Panels find that even a general right to legitimate criticism does not necessarily extend to registering or using a domain name identical to a trademark (i.e., <trademark.tld> (including typos)); even where such a domain name is used in relation to genuine noncommercial free speech, panels tend to find that this creates an impermissible risk of user confusion through impersonation.” This approach in favor of the “impersonation” approach has been well received and adopted in subsequent decisions. See, e.g., Akoustic Arts v. Whois Privacy Service / F J Pompei, D2019-2136 (WIPO Oct. 23, 2019) (“The Panel is of the view that the Respondent’s case fails what has recently been referred to as “the impersonation test”, citing Dover Downs, supra); Novartis AG v. Contact Privacy Inc. Customer 1246111874 / Andrew C. Sikula, Negotiation Matters Inc., D2020-1738 (WIPO Aug. 27, 2020) (“some (but not all) United States based panelists had previously been prepared where both parties are based in the United States to adopt a more liberal approach to the use of the trade mark of another on free speech grounds. Since this edition of the overview was published, matters appear to have moved on such that there may no longer be any separate United States view of significance. In this respect, see for example, Dover Downs…”); Hubbell Incorporated v. Matt Hanson, FA 1891361 (Forum May 11, 2020) (citing Dover Downs, supra, “the developing consensus amongst UDRP panelists is that use of a domain name comprised only of the trademark, without distinguishing words (such as “sucks” or “criticism”), cannot be a legitimate interest because it would essentially be using the domain name to impersonate the trademark owner or imply affiliation with the trademark owner.)
Here, Complainant claims that Respondent uses the <meerakaul.net> domain name to display an altered image of Complainant and to misrepresent information relating to her with the purpose of damaging her business reputation. In support, Complainant provides a detailed description of how Respondent’s listing of certain “Lawsuits against Meera Kaul” is inaccurate and further submits certain corporate registration documents and other items to contest the statements made on Respondent’s website. Complainant also submits a copy of a criminal proceeding which has been commenced against the Respondent by the Dubai Police Department. Respondent has filed no response nor made any other submission to participate in this case. As noted by prior Panels, “with no discovery or independent or party-directed fact-finding mechanisms * * * [t]he Panel however has no means available to test the veracity of these statements or other facts [and so it] will treat the Respondent’s website as an ordinary criticism site.” Frank, Weinberg & Black P.L. v. Allison D’Andrea, D2013-1578 (WIPO Oct. 18, 2013). The Panel in the present case takes a similar view and declines to parse the legitimacy or veracity of Respondent’s criticism.
This Panel also adopts the view, expressed in Dover Downs Gaming & Entertainment, Inc., supra, that for the sake of consistency in UDRP decisions, the “impersonation” approach to criticism websites should be taken. As succinctly stated by a prior Panel, “[t]he issue is not the Respondent’s unquestioned right to criticize; rather, the Panel looks to the legitimacy of her right to use the Complainant’s mark to do so. * * * What may put it afoul of the Policy is unauthorized use of the mark, for a … critic such as the Respondent to increase the size of her audience … by tricking the public into thinking that the mark owner sponsors or endorses the site. The legitimacy of the soapbox chosen for the criticism, not the site’s content, is the focus.” Yellowstone Mountain Club LLC v. Offshore Limited D and PCI, D2013-0097 (WIPO Apr. 12, 2013) (a domain name that incorporates a mark or a mark’s dominant feature without an addition (such as “sucks” or “scandal”) that should make clear to an Internet user that he is not headed to the mark owner’s site does not give a legitimate interest to the Respondent to use the mark as part of the domain name under the Policy). Also see Triodos Bank NV v. Ashley Dobbs, D2002-0776 (WIPO Oct. 3, 2002) (“The fact that the nature of the site is apparent as soon as one arrives at it is too late. By then, the visitor has been deceived, the Respondent has achieved his objective and the damage is done.”) By way of contrast where critical intent is apparent from the content of the domain name itself, see Petroleo Brasileiro S.A. - Petrobras v. Ivo Lucio Santana Marcelino Da Silva, D2014-1331 (WIPO Sep. 23, 2014), in which the Panel noted that “[m]ost Internet users would realize that they are not visiting Complainant’s websites simply by seeing the disputed domain name” <maracutaiasnapetrobras.com> (English translation “dirty tricks at Petrobras”).
As the <meerakaul.net> domain name, by the composition of its own text, gives no indication of Respondent’s claimed critical purpose, the Panel finds that it is impersonating Complainant and, thus, that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
A foundational question underlying the bad faith requirement of Policy ¶ 4(a)(iii) is whether or not Respondent had knowledge of Complainant’s rights in its MEERA KAUL mark at the time it registered the disputed domain name. Some attribution of knowledge of a complainant’s trademark, whether actual, constructive, or based upon a conclusion that a respondent should have known of the mark, is inherently prerequisite to a finding of bad faith under the Policy. See Domain Name Arbitration, 4.02-C (Gerald M. Levine, Legal Corner Press, 2nd ed. 2019) (“Knowledge and Targeting Are Prerequisites to Finding Bad Faith Registration”); USA Video Interactive Corporation v. B.G. Enterprises, D2000-1052 (WIPO Dec. 13, 2000) (claim denied where “Respondent registered and used the domain name without knowledge of Complainant for a bona fide commercial purpose.”) Here, it is noted that the disputed domain name was registered on April 10, 2018, over one year prior to the July 11, 2019 filing of the Complainant’s USPTO application. Although the USPTO registration recites a March 10, 2012 date for the mark’s first use in commerce, this, without more, does not suffice as proof of trademark rights as of that date. However, Complainant has submitted into evidence her ownership of other domain names that incorporate her mark, e.g. <meerakauls.com>, articles written about her and the Meera Kaul Foundation, as well as photos of awards she has won, all prior to the date on which the disputed domain name was registered and the Panel is satisfied that these demonstrate the existence of a trademark reputation that predates the creation of the domain name. Finally, website content and other uses to which a dispurted domain name may be put can provide evidence of a respondent’s actual knowledge of a complainant's rights in an asserted mark. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“the Panel here finds actual knowledge through the name used for the domain and the use made of it.”) A review of the <meerakauls.net> website reveals an altered photo of Complainant and a listing of various legal proceedings which are claimed to have been brought against her. Based upon the evidence presented in this case the Panel finds that Respondent must have had actual knowledge of Complainant’s mark at the time it registered and used the disputed domain name.
Next, Complainant asserts that “[t]he domain name serves no business or personal purpose to anyone except to harm the reputation of the complainant”. While this may not squarely fit under any section of Policy ¶ 4(b), such arguments are not required under the Policy so long as Complainant shows bad faith use and registration in some manner. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Bloomberg Finance L.P. v. Nikita A Paskhalnyy / Private Person, FA 1638757 (Forum Nov. 5, 2015) (the panel noting that Policy ¶ 4(b) factors are not exclusive but “are meant to be merely illustrative of bad faith, and that Respondent’s bad faith may be demonstrated under the totality of the circumstances”).
In any event, it has been noted that “criticism sites do not fit neatly into any of the four examples of evidence of bad faith listed in paragraph 4(b) of the Policy” and ““the deceptive use of the Complainant’s mark, unadorned, makes out bad faith under the Policy.” Frank, Weinberg & Black P.L. v. Allison D’Andrea, supra. Bad faith registration and use have been found in relation to domain names that fit within the “impersonation” viewpoint discussed above. First Baptist Church of Glenarden v. Melvin Jones, D2009-0022 (WIPO Feb. 26, 2009) (“This Panel has consistently adhered to View 1 when, as here, the disputed domain name is identical to Complainant's mark.” Where the disputed <fbcglenarden.com> domain name included the entirety of Complainant’s mark with no indication of Respondent’s critical intent, “Respondent's registration and continued use were undertaken intentionally and expressly to disrupt Complainant's activities to expand the audience for his criticism by misleading Internet users as to the ‘source, sponsorship, affiliation, or endorsement’ of his website”). Further, in KwikChex Ltd v. ECC ECC, ECC / European Consumer Claims Ltd.,
D2020-1399 (WIPO Aug. 13, 2020), the Panel found that a disputed domain name which copies the entirety of the Complainant’s mark and adds no additional terms beyond a gTLD was registered and used in bad faith as an impersonation. The Panel stated that “[t]he registration and use of a domain name to impersonate a trade mark holder so as to draw Internet users to a website, involves registration and use in bad faith for the purposes of the Policy. This is so even if once the Internet user reaches the website it is clear that it is not operated by the rights holder” and “where the website is hosting noncommercial criticism…” Id.
It is important to note that bad faith arises here from the use of a domain name which is composed of the entirety of Complainant’s mark (plus a gTLD) to impersonate the Complainant and its legitimate <meerakauls.com> website. This determination is made independent of the content displayed on Respondent’s website itself or of any right it may have to post such content.[iii] Respondent is free to post legitimate and accurate criticism of Complainant using another domain name that clearly conveys its intent. See, Triodos Bank NV v. Ashley Dobbs, supra (“while the Panel recognizes the Respondent’s right to campaign and to conduct its campaigns by way of the internet, the Domain Name is not necessary for that purpose. Moreover, registration of a domain name comprising the name and trade mark of another and specifically with a view to causing damage and disruption to that other cannot be right, still less where the use of the Domain Name will trick internet users intending to visit the trade mark owner’s site into visiting the registrant’s site. The Panel therefore finds that the Domain Name was registered in bad faith.”) Also, Frontier-Oldsmobile-Cadillac, Inc. d/b/a Freedom Chevrolet v. David Smith, FA 156845 (Forum July 16, 2003) (In finding bad faith the Panel noted that “Complainant has every right to voice legitimate complaints against Complainant. However, those complaints cannot be expressed in a website located at a domain name that is identical to Complainant’s trademark.”)
Finally, the Panel notes that Respondent appears to have provided false or misleading WHOIS information when registering the <meerakaul.net> domain name. Failure to provide accurate contact information may evidence bad faith under Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA 1614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”) Complainant notes that it has contacted the listed registrant of the domain name “Bar Dubai Police Station” who “confirmed that they do not own the domain or have registered it and that the person registering the Domain is indeed an impersonator.” In light of this evidence, the Panel finds additional grounds upon which to hold that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <meerakaul.net> domain name be TRANSFERRED from Respondent to Complainant.
Steve M. Levy, Esq., Panelist
Dated: October 12, 2020
[i] It should be noted that the WHOIS record for the <meerakaul.net> domain name lists Respondent’s address as being in the United Arab Emirates. As such, it is not subject to the First Amendment and other laws of the United States of America. Although UDRP Rule 15 provides that a Panel may consider “any rules and principles of law that it deems applicable”, Panels “are not necessarily experts on every jurisdiction’s local law, and it can be difficult to know which local law to apply if parties come from or use their websites in different jurisdictions”. Signify Holding B.V. v. WhoisGuard Protected, WhoisGuard, Inc. / Matthew Pilsbury, MCP Capital, LLC, D2020-0278 (WIPO Mar. 25, 2020) citing Harold Carter Jr, Purlin Pal LLC, D2019-0633 (WIPO May 22, 2019).
[ii] See also, Grupo Costamex, SA de C.V. v. Stephen Smith and Oneandone Private Registration / 1&1 Internet Inc., D2009-0062 (WIPO Mar. 25, 2009). The divergent “impersonation” and “free speech” views were identified but, like the Panel in Dover Downs, it was noted that “the Policy, including paragraph 4(c), was intended to be given a consistent interpretation, regardless of the location of the parties, registrar, or respondent's website.” Id.
[iii] While the majority of content on Respondent’s website appears to be non-pretextual criticism, the site displays an altered photo of Complainant posing with someone she claims to not be affiliated with, there is no link to Complainant’s own <meerakauls.com> website for users who may have arrived at Respondent’s website in error, and the Dubai Police Department has filed charges against the Respondent for impersonation.
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