Leland Turner v. joseph derer
Claim Number: FA1505001618086
Complainant is Leland Turner (“Complainant”), represented by Christian C. Navarro of Christian C. Navarro Law Office, Texas, USA. Respondent is joseph derer (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lelandturner.com> ('the Domain Name'), registered with Launchpad, Inc. (HostGator).
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 6, 2015; the Forum received payment on May 6, 2015.
On May 6, 2015, Launchpad, Inc. (HostGator) confirmed by e-mail to the Forum that the <lelandturner.com> domain name is registered with Launchpad, Inc. (HostGator) and that Respondent is the current registrant of the name. Launchpad, Inc. (HostGator) has verified that Respondent is bound by the Launchpad, Inc. (HostGator) 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 May 19, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 8, 2015 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@lelandturner.com. Also on May 19, 2015, 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 June 10, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal as Panelist.
On June 17, 2015 the Panelist issued an Order for further evidence from the Complainant of reputation and goodwill and re the alleged targeting of the Complainant by the Respondent through extortion giving the Respondent an opportunity to comment.
On June 23, 2015 the Complainant provided further evidence of reputation and goodwill and the activities of the Respondent including a request for money for transfer of the Domain Name. The Respondent did not comment on this evidence.
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
The Complainant's submissions can be summarized as follows:
The Complainant is an individual businessman specializing in surgical spine devices and instruments which he promotes to spinal surgeons in Texas. He attends conferences and markets his skills under the name Leland Turner.
The Respondent has sought to harm the Complainant's business name. He is not named Leland Turner.
The Respondent identified the Complainant by photograph and his home residence on the site attached to the Domain Name. He identified the Complainant’s boss and requested website visitors to contact the Complainant’s boss. The web site attached to the Domain Name included conspiracy videos that the Complainant does not endorse. The videos on the site might be considered racist and anti-Semitic.
The purpose of the web site is to harm the Complainant’s business, his financial well-being, his image and possibly his physical being. The posting of the Complainant’s address could have led to physical violence against his family. The Respondent has a history of attempting to harm the Complainant.
Respondent has no rights and legitimate interests in the Domain Name. Respondent has never operated a business as Leland Turner. He has no authority to use the name Leland Turner or to post the Complainant's home address and contact details of the Complainant's boss.
The Respondent's actions can only be considered in bad faith, because they were intended to link inflammatory conspiracy theories to the Complainant's business image.
The use of the Domain Name is designed to create distrust, confusion and harm to the Complainant. Respondent was indicted in federal court for extortion where the Complainant was the victim.
The evidence supplied by the Complainant shows the Respondent referring to 'Leland Turner' as a brand and requesting $24995 for the Domain Name or he would cause the Complainant and his name commercial damage.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is an individual businessman specializing in surgical spine devices and instruments which he promotes to spinal surgeons in Texas. He attends conferences and markets his skills under the name Leland Turner and has achieved considerable sales of products in the last few years.
The Respondent registered the Domain Name in 2011 and has used it to post material relating to conspiracy theories. The Respondent requested by e mail that the Complainant pay $24995 for transfer of the Domain Name or the Respondent would use it to cause the Complainant commercial damage. The Respondent has been indicted in federal court for extortion where the Complainant was the victim.
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(e), 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 allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Complainant has produced evidence that the LELAND TURNER name has secondary meaning as a name with reputation and goodwill in the area of surgical devices. The Respondent refers to LELAND TURNER as a brand in e mail correspondence. See Estate of Tupac Shakur v Shakur info Page, AF-0346 (eResolution September 28, 2000) ('A person may acquire such a reputation in his or her own name as to give rise to trade mark rights in that name at common law) As such the Complainant has shown it has an unregistered trade mark for LELAND TURNER for surgical devices.
The Domain Name consists of the Complainant's unregistered mark LELAND TURNER plus the gTLD designation .com. The addition of the .com gTLD does not serve to distinguish the Domain Name from the Complainant's LELAND TURNER mark and the Panellist finds that this domain name is identical to a mark in which the Complainant has rights for the purpose of the Policy. See ABT Elecs. Inc. v Ricks FA 904239 (Nat Arb Forum Mar 27, 2007) "addition of a generic top level domain ('gTLD") is irrelevant when conducting a Policy 4 (a)(i) analysis". See also Bond & Co. Jewelers Inc. v Tex Int'l Prop Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007)(finding that the elimination of spaces between the terms and the addition of a gTLD do not establish distinctiveness from the Complainant's mark under Policy 4(a)(i)).
Accordingly, the Complainant has satisfied the first limb of the Policy.
The Respondent has used the site attached to the Domain Name to display material relating to a number of conspiracy theories. It is clear from the e mail correspondence with the Complainant that the Respondent was aware of the significance of the name "LELAND TURNER" at the time of registration and has threatened to use the Domain Name to cause the Complainant damage unless the Domain Name was purchased by the Complainant for $24995. This is not fair non-commercial use or use in relation to bona fide trading. See Theresa Weiss v FREE SPIRIT/FREE SPIRIT (LEGAL NAME), FA 1612808, (Nat. Arb. Forum May 27, 2015)(finding that the respondent does not use the domain names for a bona fide offering of goods and services or any legitimate non-commercial fair use where the respondent had used them in an effort to coerce the complainant to make payments to him and to tarnish the Complainant's business).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
It appears from the evidence that the Respondent requested $24,995 for the Domain Name and threatened commercial damage if payment was not made. See Credit Based Asset Servicing and Securitization LLC and Litton Loan Servicing LP v Badmortgage.org aka Stop Liton Loan Now, FA 180702 (Nat. Arb. forum Sept. 29, 2003)(finding bad faith registration and use pursuant to Policy 4(b)(i) where the respondent made a statement to the complainant that it expected to be 'well compensated' for the disputed domain names, threatening that the complainant would be 'going down' if it didn't agree to purchase the disputed domain name registrations) See also Theresa Weiss v FREE SPIRIT/FREE SPIRIT (LEGAL NAME), FA 1612808, (Nat. Arb. Forum May 27, 2015)(finding that the respondent registered and used the domain names in bad faith within the meaning of Policy 4(b)(i) where the respondent requested payment of $30,000 from the complainant as the price for the respondent to remove 'every single video, review, and blog' that the respondent had posted that had harmed the Complainant's business. The Respondent threatened 'You may find not settling with me could become very expensive longer term in terms of lost business")
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith that the Complainant registered the name to sell the Domain Name to the Complainant for profit and a sum far in excess of out of pocket expenses for purchase of the Domain Name and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lelandturner.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 25, 2015
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