DECISION
Allan Houston v. Kaliweb, Inc.
Claim Number: FA0107000098060
PARTIES
The Complainant is Allan Houston, Pasadena, CA (“Complainant”)
represented by Gary J. Nelson, of Christie, Parker & Hale LLP. The Respondent is Indranie Bachu Kaliweb,
Inc., Briarwood, NY (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <allanhouston.net>,
registered with Network Solutions.
PANEL
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.
Panelist: Richard DiSalle, Esq.
PROCEDURAL
HISTORY
Complainant submitted a Complaint to the National
Arbitration Forum (“the Forum”) electronically on July 13, 2001; the Forum received
a hard copy of the Complaint on July 13, 2001.
On July 16, 2001, Network Solutions confirmed by e-mail to
the Forum that the domain name <allanhouston.net> is registered
with Network Solutions and that the Respondent is the current registrant of the
name. Network Solutions has verified
that Respondent is bound by the Network Solutions 5.0 registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with ICANN’s Uniform Domain Name Dispute Resolution
Policy (the “Policy”).
On July 16, 2001, a Notification of Complaint and
Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 6, 2001 by which Respondent
could file a Response to the Complaint, was transmitted to Respondent via
e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and
billing contacts, and to postmaster@allanhouston.net by e-mail.
A timely response was received on August 6, 2001. The Response is incomplete in that it does
not specifically address all allegations of the Complaint. However, it will be considered by the
Panelist.
Complainant filed an additional submission which was
received on August 8, 2001.
On August 9, 2001, pursuant to Complainant’s request to have the dispute decided by a
single-member Panel, the Forum appointed Richard DiSalle as Panelist.
The Complainant requests that the domain name be
transferred from the Respondent to the Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant
contends that it has rights in the ALLAN HOUSTON mark, given that it is
Complainant’s name, and Complainant is a famous professional basketball player. See Jagger v. Hammerton, FA 95261 (Nat. Arb. Forum Sept.
11, 2000) (finding that Complainant held common law trademark rights in his
famous name MICK JAGGER); see also Roberts v. Boyd, D2000-0210 (WIPO May
29, 2000) (finding that trademark registration was not necessary and that the
name “ Julia Roberts” has sufficient secondary association with the
Complainant that common law trademark rights exist).
Complainant contends that the disputed domain name is
identical to Complainant’s famous ALLAN HOUSTON
trademark. See Snow Fun, Inc. v.
O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain
name <termquote.com> is identical to Complainant’s TERMQUOTE mark); see also Amherst v. IFC Corp., FA 96768 (Nat. Arb. Forum
Apr. 3, 2001) (finding that Respondent’s
domain name <customcommerce.com> is identical to Complainant’s CUSTOM COMMERCE trademark registration).
Complainant also contends that Respondent has failed to
make any use of the disputed domain name in connection with a bona fide
offering of goods or services, or fair or legitimate use except to provide a
link to Respondent’s <kaliweb.com> website, and
has registered and is using the name in bad faith.
The
Respondent contends that there is no direct link to the Kaliweb.com web site
from <AllanHouston.net> and the assertion that somebody clicking
through would even make a direct connection is mere speculation. The Respondent also contends that the claim
that it is not a true fan site is outlandish.
The site continues to be an ongoing project that Respondent intends to
continue developing as an outlet to represent its strong dedication to “one of
our favorite sport’s superstars”. This
site in no way harms the Complainant’s reputation, and is not meant to mislead
people into believing that the site is an official site of Allan Houston.
C.
Additional Submissions
Complainant
contends, in its additional submission, that Respondent’s alleged fan club/site
does not permit Internet users to join any club, or add their names to a list
and that Respondent’s reproduction of a copyrighted photograph of Complainant,
owned by someone other than Respondent, is evidence that Respondent has no
rights or legitimate interests in respect to the disputed domain name. See Kasparov v. Am. Computer Co., FA
94644 (Nat. Arb. Forum May 30, 2000) (finding no legitimate rights and
interests when Respondent used Complainant's name as a portal to a web site
which, without permission, associated the Complainant as an endorser of
Respondent's causes).
FINDINGS
(1) the domain name registered by the Respondent is
identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (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 the 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 the Respondent is
identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
Identical and/or Confusingly Similar
The domain name registered by the Respondent is identical
or confusingly similar to a trademark or service mark in which the Complainant
has rights. See Jagger v. Hammerton, Robert v. Boyd and Snow Fun, Inc. v.
O’Connor, supra.
Rights or Legitimate Interests
The Respondent has no rights or
legitimate interests in respect of the domain name. See Kasparov v. Am. Computer Co. Furthermore,
Respondent is not commonly known by the ALLAN HOUSTON mark. See
Gallup Inc. v. Amish Country Store,
FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have
rights in domain name when Respondent is not known by the mark).
The domain name has been registered and is being used in
bad faith. Respondent intentionally
attempted to attract, for commercial gain, Internet users to Respondent’s
website by creating a likelihood of confusion.
See Drs. Foster & Smith, Inc. v. Jaspreet Lalli, FA 95284
(Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the Respondent
directed Internet users seeking the Complainant’s site to its website for
commercial gain); see also Anne of Green Gable Licensing Auth., Inc. v.
Internetworks, AF-0109 (eResolution June 12, 2000) (finding bad faith where
Respondent used the domain name anneofgreengables.com to link users to a web
site that contains information about the Anne of Green Gables literary works,
motion pictures and the author, L.M. Montgomery, where a visitor to the web
site may believe that the owner of the mark ANNE OF GREEN GABLES is affiliated
with or has sponsored or endorsed Respondent’s web site). Indeed, Respondent appears to be taking
credit for elevating Complainant to “the upper echelons” and creating the site
in Complainant’s honor.
The <allanhouston.net> domain name shall be
transferred to Allan Houston.
Richard DiSalle, Esquire, Panelist
Dated: September 4, 2001
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