Jeffrey Wilens v. Domain Admin / Whois Privacy Corp. aka MICHAEL WEBER / ANONYMOUSSPEECH
Claim Number: FA1605001676502
Complainant is Jeffrey Wilens (“Complainant”), California, USA. Respondent is Domain Admin / Whois Privacy Corp. aka MICHAEL WEBER / ANONYMOUSSPEECH (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <classactionscams.com>, and <cheaterscams.com>, registered with TLD Registrar Solutions Ltd. and eNom, Inc., respectively.
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.
Francine Siew Ling TAN as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 25, 2016; the Forum received payment on May 25, 2016.
On May 25, 2016; May 26, 2016, TLD Registrar Solutions Ltd. and eNom, Inc. confirmed by e-mail to the Forum that the <classactionscams.com>, and <cheaterscams.com> domain names are registered with TLD Registrar Solutions Ltd. and eNom, Inc. and that Respondent is the current registrant of the names. TLD Registrar Solutions Ltd. and eNom, Inc. have verified that Respondent is bound by the TLD Registrar Solutions Ltd. and eNom, Inc. registration agreements 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 27, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 16, 2016 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@classactionscams.com, postmaster@cheaterscams.com. Also on May 27, 2016, 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 June 15, 2016.
An Additional Submission was received from Complainant on June 18, 2016.
On June 23, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Francine Siew Ling Tan as Panelist.
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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is an attorney licensed in the State of California. He operates several business websites for his law practice and has trademark rights in JEFFREY WILENS and LAKESHORE LAW CENTER (U.S. Registration Nos. 4,788,279 and 4,722,319). Tens of thousands of dollars have been spent on advertising and promoting his personal and business names.
In or around October 2013, Respondent created many websites including lakeshorelawcenter.wordpress.com, attorneyjeffreywilens.wordpress.com, unitedvictimsofjeffreywilens.wordpress.com, and jeffreywilenslakeshorelaw.wordpress.com. Using these websites, Respondent attempted to redirect searches for Jeffrey Wilens or Lakeshore Law Center to Respondent’s websites. On these websites, Respondent published false and defamatory information about Complainant.
Complainant sued Respondent in federal court and ultimately, a court judgment was entered against Respondent for cybersquatting and defamation. The federal court judgment ordered the transfer to Complainant or cancellation of 12 websites.
The first disputed domain name <classactionscams.com> (“the first domain name”) was registered by “someone (but almost certainly Respondent)” on August 11, 2015. The first domain name was used to create a number of websites incorporating the names “Jeffrey Wilens” or “Lakeshore Law Center”, e.g.:
(i) http://classactionscams.com/about-jeffrey-wilens-and-this-website;
(ii) http://classactionscams.com/who-is-jeffrey-wilens;
(iii) http://classactionscams.com/who-is-lakeshore-law-center;
(iv) http://classactionscams.com/jeffrey-wilens-unethical-attorney; and
The content of these and other webpages were lifted ad verbatim from the banned websites.
The second disputed domain name <cheaterscams.com> (“the second domain name”) was registered “someone (again almost certainly Respondent)” on February 16, 2016. A number of websites was created, e.g.:
(a) http://cheaterscams.com/wife-cheater-jeffrey-wilens-extramarital-affair-with-mia-costley; and
(b) http://cheaterscams.com/JeffreyWilensAdulterousCheater/adulterer-jeffrey-wilens.
The disputed domain names use the same Russian Name Server, Valuehost.ru., as did the banned website, jeffreywilens.com. The same person is behind the disputed domain names and is the same person who was behind the 12 banned websites.
The disputed domain names are identical or confusingly similar to the 12 banned websites and to the Complainant’s JEFFREY WILENS and LAKESHORE LAW CENTER trade marks.
Respondent has no rights or legitimate interests in the disputed domain name because a federal court has already found that similar websites containing the same type of content constituted cybersquatting and defamation.
The disputed domain names were registered in bad faith with the intent to anonymously defame Complainant and to hijack web searches for Complainant by prospective clients to the offending websites controlled by Respondent.
B. Respondent
Complainant has not provided any proof that the Doe Defendant in the federal judgment obtained is the same Doe Respondent in the instant proceeding. Complainant has not presented sufficient evidence to demonstrate that the listed entities are jointly controlled. Hence, Complainant may not proceed in one action in regards to the two disputed domain names.
The disputed domain names are not identical or confusingly similar to the marks in which Complainant has rights. Use of another’s mark in the post-domain path does not violate the trade marks of Complainant. The disputed domain names have no similarity to Complainant’s JEFFREY WILENS and LAKESHORE LAW CENTER trade marks.
Respondent has rights or legitimate interests in the disputed domain names. Respondent’s website falls within the category of “gripe websites” and are protected. The disputed domain names are legitimate as they are not being used in a commercial manner.
The disputed domain names were not registered in bad faith as they are only used to criticize Complainant (Respondent is exercising its right to freedom of speech) and not for any other commercial use.
C. Additional Submissions
Complainant moves to strike out Respondent’s Response on grounds that it violates Rule 5(c)(ii) of the Policy which requires the Response to “Provide the name, postal and email addresses, and the telephone and telefax numbers of the Respondent (domain name holder) and of any representative authorized to act for the Respondent in the administrative proceeding”. Respondent has identified itself as the Domain Administrator of Who Is Privacy Corp. and Michael Weber of Anonymousspeech. Neither company is the domain name owner and cannot claim to have personal knowledge of material facts at issue in the proceeding.
Complainant has failed to satisfy paragraph 4(a)(i) of the Policy. Accordingly, the Panel denies the Complaint.
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 established it has rights in the trade marks JEFFREY WILEN and LAKESHORE LAW CENTER. However, the disputed domain names do not contain any of these trade marks of Complainant. Complainant has not established it has trademark rights in the words “classactionscams”, “cheaterscams” or the like. The disputed domain names can in no way be said to be identical or confusingly similar to the JEFFREY WILEN and LAKESHORE LAW CENTER trade marks.
Whilst the Panel might be sympathetic towards Complainant in the situation in which he finds itself and might find Respondent’s actions to be questionable, Respondent’s manner of use of Complainant’s marks in the post-domain path cannot be addressed by the Policy. The Policy is not intended to be a means to deal with all forms of trademark infringement; it has a limited and specific purpose of addressing situations of a misappropriation of a trademark owner’s marks in a domain name. The primary and inescapable requirement that Complainant has to meet, namely to show that the disputed domain names are identical or confusingly similar to a trade mark(s) in which he has rights, has unfortunately not been met.
In view of Complainant’s failure to satisfy the requirement of paragraph 4(a)(i) of the Policy, the Panel need not set out its opinion on whether Respondent has rights or legitimate interests in the disputed domain names, or whether the disputed domain names were registered and are being used in bad faith.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <classactionscams.com>, and <cheaterscams.com> domain name REMAIN WITH Respondent.
Francine Siew Ling Tan, Panelist
Dated: June 27, 2016
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