TheHuffingtonPost.com, Inc. v. Huffington Post Union of Bloggers / HPUB .ORG
Claim Number: FA1202001430293
Complainant is TheHuffingtonPost.com, Inc. (“Complainant”), represented by Gianni P. Servodidio of Jenner & Block, New York, USA. Respondent is Huffington Post Union of Bloggers / HPUB .ORG (“Respondent”), represented by James M. Smedley of James M. Smedley LLC, New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <huffingtonpostunionofbloggers.org>, registered with Instra Corporation Pty Ltd.
The undersigned certify 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.
David A. Einhorn, Sandra J. Franklin and James Bridgeman as Panelists.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 17, 2012; the National Arbitration Forum received payment on February 17, 2012.
On February 19, 2012, Instra Corporation Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <huffingtonpostunionofbloggers.org> domain name is registered with Instra Corporation Pty Ltd. and that Respondent is the current registrant of the name. Instra Corporation Pty Ltd. has verified that Respondent is bound by the Instra Corporation Pty Ltd. 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 February 27, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 19, 2012 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@huffingtonpostunionofbloggers.org. Also on February 27, 2012, 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.
A timely Response was received and determined to be complete on March 14, 2012.
Complainant submitted a timely Additional Statement on March 19, 2012.
Respondent submitted a timely Additional Statement in reply on March 24, 2012.
On March 23, 2012, pursuant to Respondent's request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed David A. Einhorn, Sandra J. Franklin and James Bridgeman (Chair) as Panelists.
On April 13, 2012 due to exceptional circumstances, the time period within which the Panel was required to render its Decision was extended until April 13, 2012. A further seven day extension of time was granted on April 13, 2012.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant submits that it owns the registered service mark THE HUFFINGTON POST and has used that service mark since 2005 in the business of providing news, blogs, information and commentary concerning a wide variety of current events, providing news and related services in the United States and in many other countries throughout the world.
Complainant claims that THE HUFFINGTON POST trade name and service mark is well-known in the United States and elsewhere throughout the world, and due to the quality of its services, Complainant has a longstanding reputation for excellence among the relevant consumers.
Complainant claims that it has widely advertised and promoted its services under the THE HUFFINGTON POST mark, and it has achieved substantial revenues in connection with its services offered under said mark. Complainant claims that THE HUFFINGTON POST mark is widely recognized and relied upon by the trade and the public as identifying Complainant's services and distinguishing Complainant's services from the services of others, and Complainant's THE HUFFINGTON POST mark has come to represent and symbolize an extensive and valuable goodwill throughout the world belonging exclusively to Complainant.
Complainant submits that it is the owner of numerous trademark registrations for the THE HUFFINGTON POST mark and variations thereof for blogs and related news services, throughout the world including United States service mark registration number 3,095,331 registered on May 23, 2006. Copies of the U.S. registrations upon which Complainant relies are attached as an annex to the Complaint.
Complainant submits that it operates a web site at <huffingtonpost.com>, accessible from anywhere in the world and containing Complainant's blogs and related news services. Complainant submits that it also owns a number of domain names incorporating its name and mark THE HUFFINGTON POST, which domain names automatically default to Complainant's web site at <huffingtonpost.com>. Examples of these domain names include <hufFingtonpost.net>, <thehuffingtonpost.com>, <elhuffingtonpost.com>, <huffpost.com>, and <thehuffpost.com>.
Complainant has submitted complaints regarding third-party usage of domain names incorporating its name and mark THE HUFFINGTON POST in the past. On August 10, 2011, Complainant submitted complaints under the Policy against two separate respondents regarding the domain names <huffingtonpost.com> and <huffingtonpoost.com>. On August 11, 2011, Complainant submitted a complaint regarding the domain name <huffpo.com>. On October 14, 2011, Complainant submitted a complaint regarding the domain name <lehuffingtonpost.com>. Complainant succeeded in each case with the panel finding that the disputed domain names were confusingly similar to Complainant's name and mark THE HUFFINGTON POST.
Complainant submits that the disputed domain name <huffingtonpostunionofbloggers.org> is virtually identical to Complainant's registered mark THE HUFFINGTON POST in appearance, sound, and connotation. Respondent has merely added "union of bloggers" to and deleted the spaces between the words in Complainant's registered mark. Complainant argues that such slight changes do not create a distinguishing difference and are without legal significance in the overall commercial impression conveyed by the <huffingtonpostunionofbloggers.org> domain name.
Complainant argues that Respondent uses the disputed domain name in connection with web sites offering blogs and related news services that prominently feature the name huffingtonpostunionofbloggers as part of the masthead of the publication in an obvious attempt to mislead and deceive consumers. Complainant has submitted a copy of the front page from Respondent's web site. Complainant submits that the site appears to feature a mix of original and reposted content from various sources, including THE HUFFINGTON POST and THE NEW YORK TIMES.
Complainant submits that at the bottom of the home page on Respondent’s website there is a link (presently inactive) for third parties to "advertise" on the site. Respondent appears to have one advertisement for the website“Operation Fabulous” on its Frequently Asked Questions page. Respondent's “Frequently Asked Questions” page identifies its goal as, "to build a news and views web site for intelligent and informed discourse." Additionally, Respondent's website links to a page on the Facebook websitewherein Respondent states that its mission is: "to create a mighty news company in service to American democracy, not the corporate owned propaganda machine beholden to the oligarchs." Copies of the relevant pages from Respondent's websiteand Facebook page are attached as exhibits to the Complaint.
Complainant asserts that it has not licensed the name and mark THE HUFFINGTON POST to Respondent, and argues that Respondent does not have any right, authorization, or permission to use the THE HUFFINGTON POST name and mark in the disputed domain name or in the content provided on its web site. Complainant submits that the name and mark THE HUFFINGTON POST is arbitrary and distinctive and is not a mark that a third party would legitimately choose unless seeking to create an impression of an association with Complainant.
Complainant submits that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. Instead, Respondent is using the disputed domain name to direct traffic to a websitethat directly competes with Complainant for its own commercial gain. By registering and using the disputed domain name <huffingtonpostunionofbloggers.org>, Respondent clearly intends to confuse Internet users and draw them to its websitewhen they type in Complainant's trade name. Such Internet users intend to reach Complainant's website, but at Respondent's websitethey find content that is very similar to the content on Complainant's web site. This does not constitute a bona fide or legitimate business use.
Complainant argues that Respondent is not commonly known by the disputed domain name. Any recognition of Respondent in connection with the domain name is purely by virtue of its unauthorized use of Complainant's mark. In addition, Respondent was not known by the domain name by third parties until after the domain name was registered. Complainant points out that Respondent filed as a corporation on March 15, 2011 and launched its web site in April 2011, months after it registered the disputed domain name on September 23, 2010.
Complainant argues that Respondent is not making a legitimate non-commercial or fair use of the disputed domain name <huffingtonpostunionofbloggers.org>. Firstly, Respondent is using the disputed domain name with intent for commercial gain to divert Internet users who type in Complainant's trade name to its web site. Next, Respondent's use of the domain name misrepresents an association between Respondent, a competitor, with Complainant, and draws Internet users to Respondent's web site, which contains at least one advertisement and appears to be open to accepting advertising revenues. Moreover, Respondent's web site does not criticize, parody, or comment on Complainant or make other fair use of Complainant's mark. Instead, Respondent's web site exists merely to compete with Complainant's web site and its use of the domain name infringes on Complainant's rights. Such use of Complainant's mark is not a legitimate non-commercial or fair use of the disputed domain name <huffingtonpostunionofbloggers.org>.
Complainant submits that Respondent registered and is using the disputed domain name in bad faith. On November 14, 2011, Complainant, through its attorneys, sent a letter to Respondent at its listed address via certified mail, return receipt requested, notifying the Respondent that its registration and use of the disputed domain name <huffingtonpostunionofbloggers.org> violates Complainant's rights in and to its registered THE HUFFINGTON POST name and mark. Respondent never responded to that letter.
Complainant submits that Respondent has registered and used the disputed domain name <huffingtonpostunionofbloggers.org> with constructive and actual knowledge of Complainant's rights in its THE HUFFINGTON POST name and mark due to Complainant's registration of the mark with the United States Patent and Trademark Office and Respondent's reference on its site former affiliation to Complainant.
Complainant argues that Respondent's registration and use of the disputed domain name <huffingtonpostunionofbloggers.org> is likely to cause and has caused confusion, to cause mistake, and to deceive as to the source, origin, and sponsorship of Respondent's web site. Respondent's registration and use of the disputed domain name <huffingtonpostunionofbloggers.org> is likely to cause the trade and the public to wrongly associate Complainant with Respondent, to believe that Complainant is somehow affiliated or connected with Respondent, and to confuse Respondent and its web site with Complainant.
Complainant further argues that Respondent's registration and use of the disputed domain name trades on the merit, reputation, and goodwill built up by Complainant's extensive use, advertising, and marketing of Complainant's products under Complainant's trade name and registered mark. Respondent's registration and use of the disputed domain name <huffingtonpostunionofbloggers.org> has been with full knowledge of Complainant's prior rights and with intent to confuse consumers and benefit from the goodwill of Complainant and Complainant's products.
Complainant alleges that by using the disputed domain name <huffingtonpostunionofbloggers.org>, Respondent intentionally attempted to attract Internet users to Respondent's web site for commercial gain by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent'swebsite.
Complainant submits that the foregoing activities of Respondent constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
B. Respondent
Respondent denies that the disputed domain name <huffingtonpostunionofbloggers.org> is identical or confusingly similar to the Complainant’s THE HUFFINGTON POST trade name and trademark.
Respondent submits that it is a non-profit corporation, comprised primarily of current and former writers and bloggers who have provided or currently provide content to Complainant. Like many labor unions, labor organizations and other collectives and non-profit corporations representing individuals that share a common bond, Respondent’s company name, as well as its corresponding domain name is directed to identify the commonality between these individuals. Respondent’s company name and the domain name in question contain the phrase “Union of Bloggers,” denoting that Respondent, and the domain name in question, represent a collective of bloggers.
Respondent argues that it is common practice for collectives, labor organizations, labor unions or other non-profit corporations to utilize names that identify the commonality of such individuals. Examples include, the “Starbucks Workers Union” (starbucksunion.org), the “National Football League Players Association” (nflplayers.com), the “National Basketball Players Association” (nbpa.org), the “National Hockey League Players’ Association” (nhlpa.org), the “US Airline Pilots Association” (usairlinepilots.org) (US Airways), the “Major League Baseball Players Association” (mlbplayers.org), and the “Amalgamated Transit Union” (atu.org). These are but a few examples of such organizations. These names and associated domain names are similar to those of Respondent and the disputed domain name <huffingtonpostunionofbloggers.org> in that they are names/domain names that may include portions of a trade name, but are not identical and are not confusingly similar as they clearly identify that they are a distinguishable entity. Respondent argues that the same is true of disputed domain name <huffingtonpostunionofbloggers.org>, that the domain name is not identical nor is it confusingly similar as the domain name of Respondent clearly denotes a collective of individuals that is not directly affiliated with Complainant. As such, Respondent submits that the marks are not identical or virtually identical as claimed by Complainant, nor is there a likelihood of confusion between the Complainant’s mark and the domain name in question.
Respondent submits that it is irrelevant that Complainant has filed and succeeded in a number of previous complaints under the Policy and submits and sets out to distinguish facts in each of the cases referred to by Complainant from the present Complaint.
Respondent asserts that it has rights and legitimate interests in the domain name <huffingtonpostunionofbloggers.org> arguing that the disputed domain name has been used to denote the organization of the bloggers who provide or have provided content for THE HUFFINGTON POST. One of the purposes of Respondent is to organize its members in order to effect the establishment of payment of living wages to all freelance writers by companies that utilize the content of these freelance writers for their own gain. Respondent submits that this purpose is a legitimate noncommercial use.
Respondent argues that, contrary to Complainant’s contentions, Respondent is commonly known by the disputed domain name <huffingtonpostunionofbloggers.org>. Respondent has been registered under this name, as a non-profit corporation, as certified by the Secretary of State of Nevada as evidenced by a certificate annexed to the Complaint. Respondent submits that its website utilizing the domain name was launched only after its incorporation as a non-profit entity was accepted by the Secretary of State of Nevada.
Respondent argues that the content posted on the website to which the disputed domain name resolves is that of its members. As a union of writers, Respondent represents freelancer writers and bloggers. The contribution of these writers and bloggers are their authored works. Similar to the other writer’s unions, including the National Writers Union (nwu.org), Writers Guild of America West (wga.org), and Writers Guild of America East (wgaeast.org), the Respondent’s domain is dedicated to the distribution and display of the authored works of its members.
Respondent submits that contrary to allegations made by Complainant in the amended Complaint, dated February 27, 2012, Respondent does not have advertisements on its website, nor has it ever received compensation for outbound links or other content on its website. Even in the documents submitted by Complainant this is made explicitly clear. In the screenshot of Respondent’s Facebook page submitted in evidence by Complainant, the “Description” clearly states, “We are non profit. We dont [sic] accept advertising. Nobody will profit off your work here.” Respondent confirms that this statement is true and accurate.
Respondent further submits that it does utilize the disputed domain name <huffingtonpostunionofbloggers.org> to offer a bona fide service, in the collective organization of writers and bloggers for the purpose of effecting the payment of living wages to freelance writers, particularly as it applies to those writers and bloggers that provide or have provided content to Complainant.
Respondent denies that use of the disputed domain name confuses Internet users in any manner or draws them into making any association with the Complainant. As noted above, there is simply no way that an Internet user would accidentally type the disputed domain name when looking for the domain names or websites of the Complainant.
Additionally, the disputed domain name does not appear on the top 100 results (first 10 pages) of any major search engine (e.g, Google, Bing, Yahoo) when searching for the domains of the Complainant. It is unclear as to how else Internet users would accidentally arrive at the Respondent’s domain name and be confused as to the origin of the materials contained therein.
Respondent alleges that it is well-known that there is an ongoing dispute between Complainant and the writers and bloggers that provided content to the websites of Complainant. In fact, as of the time of writing this response, news articles related to this dispute are on the top of the search results for “The Huffington Post” (third link).
As such, Respondent submits that any Internet user would instantly recognize that there is no affiliation between the disputed domain name and Complainant.
Respondent further submits that at least a portion of the content of the website to which the disputed domain name resolves is dedicated to criticizing the treatment of the writer/blogger members of Respondent by Complainant. This is evidenced by numerous articles written by the members of the Respondent’s non-profit organization directed to bringing to light the practices of the Complainant regarding the writers and bloggers that provide content to the Complainant without compensation or adequate recognition.
Respondent submits that it has registered and used the disputed domain name for legitimate and noncommercial purposes, including the purpose of organizing the writers and bloggers that have or are providing content to Complainant in order to hopefully effect the establishment of payment of living wages to all freelance writers by companies that utilize the content of these freelance writers for their own gain.
Respondent further submits that there exists no actual confusion, likelihood of confusion, diversion, mistake or deceit as to the source, origin, and sponsorship of the Respondent’s website. This has been discussed at length above. In particular, (i) there is no way to arrive unintended to Respondent’s website, (ii) the disputed domain name <huffingtonpostunionofbloggers.org> clearly identifies Respondent and its members as a collective of writers/bloggers providing content to Complainant and not the Complainant itself and (iii) a reasonably prudent user would not mistake Respondent’s web site for any of Complainant’s sites.
Respondent argues that contrary to allegations made by Complainant, Respondent has made no attempt to attract the users of Complainant’s website through unlawful or deceitful means, nor has it been the intent of Respondent to do so. Additionally, Respondent submits that it has not attempted to, nor does it have the intent to, receive commercial gain from the operation or use of the disputed domain name <huffingtonpostunionofbloggers.org>. Respondent submits that its registration and use of the disputed domain name <huffingtonpostunionofbloggers.org> is for purely lawful noncommercial and non-infringing purposes.
With respect to the date of registration of the disputed domain name <huffingtonpostunionofbloggers.org> being prior to the filing of articles of incorporation with the Secretary of State of Nevada, as there are an ever-decreasing amount of available domain names, Respondent wanted to secure its moniker domain name prior to registering itself as a company as opposed to registering as a non-profit corporation, only later to find that its domain name has been previously registered by another party. Respondent submits that this is a common practice among organizations, both non-profit and for-profit, especially as the availability of top-level domain names become ever scarcer.
Respondent submits that it was the intent of the Respondent, at the time it registered the disputed domain name to register its associated non-profit corporation officially shortly thereafter. Respondent further submits that this is evidenced by the fact that Respondent waited to launch a website under this domain name until such time as Respondent was able to effect the registration of its non-profit corporation with the Secretary of State of Nevada.
Finally, Respondent expressly submits that it has not acquired the disputed domain name <huffingtonpostunionofbloggers.org> for the purpose of (i) 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 Respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name; or (iii) primarily for the purpose of disrupting the business of a competitor; or (iv) intentionally attempting to attract, for commercial gain, Internet users to Respondent’s 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 Respondent’s web site or location or of a product or service on Respondent’s web site or location.
C. Complainant’s Additional Submissions
In a timely Additional Statement submitted pursuant to Supplemental Rule 7(a), Complainant denies that Respondent is a “labor union” for writers of Complainant’s online publication or that the content of its website is “primarily” written by writers of Complainant’s online publication. Complainant asserts that Respondent instead is the publisher of a “knock-off” of THE HUFFINGTON POST using the disputed domain name which is confusingly similar to the masthead of Complainant’s publication.
Complainant argues that a review of the website to which the disputed domain name resolves demonstrates that the overwhelming majority of the identifiable authors have no current or former affiliation with Complainant. Furthermore Respondent does not purport to limit the material on its site to content written by bloggers for Complainant. The only stated “criteria” for publication of content is that its should consist of “quality original and reprinted material”. According to its own terms of use, Respondent publishes content from any source irrespective of the author’s current or former affiliation with Complainant.
Complainant refers to Respondent’s website and submits that Respondent does not provide information regarding any union of bloggers.
Arguing that Respondent’s website is a “knock off” of THE HUFFINGTON POST, Complainant refers to the fact that Respondent’s website has a “breaking news” section which organizes content according to topics such as “business” and “US politics”, all of which correspond to the same or similar sections in THE HUFFINGTON POST.
Complainant submits that Respondent’s attempt to compare itself to bona fide labor unions and trade organizations is baseless. Unlike Respondent, the operators of websites of the unions and organizations to which Respondent refers do not provide goods or services in direct competition with the trademark owner whose brand is referenced in their domain names.
Neither can Respondent properly characterize itself as a “gripe site” intended to critique Complainant because the vast majority of the content on the site concerns matters of public interest and current events having nothing to do with Complainant. Only a small number of articles available on Respondent’s website reference Complainant in any manner.
Complainant re-asserts its arguments that Respondent registered and is using the disputed domain name in bad faith to re-direct Internet traffic intended for Complainant to Respondent’s “knock off” website. Furthermore Respondent’s self-serving attempt to present itself as a “labor union” for writers of THE HUFFINGTON POST only underscores its bad faith. Finally Complainant argues that the fact that Respondent’s website is not yet popular enough to appear among the top search engine results for THE HUFFINGTON POST cannot excuse its bad faith conduct.
D. Respondent’s Additional Submissions
In a timely Additional Statement filed in reply, Respondent denies that the website to which the disputed domain name resolves is a “knock-off” of Complainant’s publication arguing that it has a distinctive “look and feel”, re-asserts its claim to be a labor union, challenges how Complainant could verify the identity of the 9,000 bloggers who have contributed to the website to which the disputed domain name resolves, and submits that writers have for centuries used noms-de-plumes. Furthermore Respondent submits that by allowing “other users” to join the cause it believes that its collective power will effect changes in the ways its members are compensated for their works. Citing as an example the website of the NHL Player’s Association, Respondent argues that labor unions often provide news and commentary on their websites. Furthermore Respondent re-asserts its denial that the disputed domain name is confusingly similar to Complainant’s trademark or that the disputed domain name was registered and is being used in bad faith.
Complainant is the owner of the United States registered Service Mark Reg. No. 3,095,331 registered on May 23, 2006 in international class 41 for “Interactive online web journal, namely blog in the field of politics, entertainment, sports and religion in class 41 (U.S. CLS. 100, 010 AND 107”).
The disputed domain name <huffingtonpostunionofbloggers.org> was registered on September 23, 2010.
Respondent filed Articles of Association as a non-profit corporation with the office of the Secretary of State for the State of Nevada on March 15, 2011.
Respondent established a website at the domain name address in April 2011.
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.
Complainant has adduced proof, and it is implicit in Respondent’s submissions that it accepts, that Complainant is the owner of the United States registered service mark THE HUFFINGTON POST number 3,095,331 registered on May 23, 2006, which is the title of Complainant’s online newspaper. Respondent accepts Complainant’s ownership of the service mark.
In the view of this Panel the disputed domain name is confusingly similar to Complainant’s mark. The additional elements have a descriptive character that do not serve to distinguish the domain name, particularly as Complainant is an Internet based news service and Internet users would expect that it might have an associated blogger’s forum.
Complainant has therefore established the first element of the test in Policy ¶ 4(a)(i).
This Panel is also satisfied that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has made out a prima facie case that it is the owner of THE HUFFINGTON POST service mark, that it has not licensed or permitted Respondent to use the service mark in relation to online publications and this Panel accepts that the domain name is confusingly similar to Complainant’s trademark and Respondent is using the confusingly similar domain name as the address of a website on which it is providing news items.
In such circumstances, the onus rests on Respondent to prove that it has such rights or legitimate interests.
Respondent’s claim rests essentially on two planks, firstly that it is known by the disputed domain name as it is registered by that name as a “non profit” corporation in Nevada and secondly that it is a labor union representing journalists who contribute to Complainant’s online publication.
The evidence is that the disputed domain name was registered on September 23, 2010, Respondent’s corporation was registered subsequently on March 15, 2011, and Respondent launched its web site in April 2011. Respondent claims that it is a “non-profit” corporation which operates as a type of labor union or professional organization. However, such claim is not supported by any evidence adduced by Respondent or by any examination of the content of Respondent’s website to which the disputed domain name resolves. The Panel acknowledges that, pursuant to ¶4(c)(ii) of the Policy, a respondent may demonstrate its rights or legitimate interests to the domain name by showing that it is making a legitimate noncommercial or fair use of the domain name. In light of Respondent’s failure to substantiate its bare allegations that it operates its non-profit corporation as a type of labor union or professional corporation, however, the Panel finds that Respondent has not established that its alleged non-commercial use is legitimate, as required by said ¶4(c)(ii) of the Policy.
This Panel finds that Respondent has failed to discharge the burden of proof to establish that it has rights or legitimate interests in the disputed domain name.
Complainant has therefore also succeeded in the second element of the test in Policy ¶ 4(a)(ii).
This Panel further finds that the disputed domain name was registered and is being used in bad faith. Respondent has every right to organize people against Complainant but while Respondent claims to be organizing a labor union, the evidence is to the contrary and this Panel finds on the balance of probabilities that Respondent is in fact using the disputed domain name, which is confusingly similar to Complainants THE HUFFINGTON POST trademark, primarily as the address of a competing online source of news on politics and current events rather than as the address of a website for a membership organization as is claimed.
This Panel finds that by using the domain name, Respondent has intentionally attempted to attract Internet users to the web site to which the disputed domain name resolves by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. While there is no evidence that the disputed domain name is being used for commercial gain, Respondent is clearly taking predatory advantage of Complainant’s registered service mark by using a confusingly similar domain name to divert Internet traffic away from Complainant’s website. In reaching this conclusion this Panel is influenced by the fact that:
· there is no evidence of any membership of Respondent’s organization;
· Respondent’s website is not a “gripe site” but it in fact invites and posts content that is in effect a competing Internet resource;
· Respondent registered the disputed domain name on September 23, 2010 but only subsequently became registered as a “non profit” corporation in Nevada on March 15, 2011;
· Respondent's “Frequently Asked Questions” page identifies its goal as "to build a news and views web site for intelligent and informed discourse"; and
· Respondent's website links to a page on the Facebook website wherein the Respondent states that its mission is: "to create a mighty news company in service to American democracy, not the corporate owned propaganda machine beholden to the oligarchs."
This Panel finds therefore that Complainant has established the third and final element of the test in Policy ¶ 4(a)(iii) and is entitled to the remedy sought.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <huffingtonpostunionofbloggers.org> domain name be TRANSFERRED from Respondent to Complainant
James Bridgeman, Chair
Dated: April 16, 2012
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