Matthew S. Leinart v. The
Rothmann Group
Claim Number: FA0703000949681
PARTIES
Complainant is Matthew S. Leinart (“Complainant”), represented by Michael
Leventhal, of Praxis, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mattleinart.com>, registered with Enom, Inc.
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.
David A. Einhorn appointed as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on March 29, 2007; the
National Arbitration Forum received a hard copy of the Complaint on April 2, 2007.
On March 30, 2007, Enom, Inc. confirmed by e-mail to the National
Arbitration Forum that the <mattleinart.com> domain name is
registered with Enom, Inc. and that
Respondent is the current registrant of the name. Enom, Inc.
has verified that Respondent is bound by the Enom,
Inc. 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 April 6, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of April 26, 2007 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@mattleinart.com by e-mail.
A timely, but unsigned, Response was received on April 26, 2007.
A timely Additional Submission was received from Complainant and
determined to be complete on May 1, 2007.
On May 9, 2007, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed David A. Einhorn as Panelist.
On May 16, 2007, the Panel issued an Order for Respondent to submit a
signed (and therefore certified) Response by Monday, May 21, 2007.
Respondent submitted a signed Response on Monday, May 21, 2007.
On May 23, 2007, the Panel issued an Order pursuant to Rule 12 of
ICANN’s Uniform Dispute Resolution Policy for Complainant to provide documentary
evidence (if any) in support of certain of its contentions by no later than May
29, 2007.
Complainant’s Additional Submission in response to the May 23, 2007 Order
was timely received on Tuesday, May 29, 2007.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant makes the following assertions:
1. Complainant, Matthew S. Leinart, a prominent professional football player (now playing for the Arizona Cardinals), has common law rights in his name. Complainant further contends that Respondent’s domain name <mattleinart.com>, which Respondent is using as a fan site, is confusingly similar to Complainant’s name.
2. Complainant contends that Respondent does not have any rights or legitimate interests in the <mattleinart.com> domain name.
3. Complainant contends that Respondent registered and used the <mattleinart.com> domain name in bad faith.
B. Respondent
Respondent argues that while Complainant is now a well-known professional athlete, he was not well known when the domain name was originally registered – in late 2000. At that time, Complainant was still a high school senior, was not even a well-known amateur athlete, and had little or no presence in the media. Respondent argues that Complainant should not have rights under the Policy since his name did not have commercial recognition at the time of registration of the domain name.
C. Additional Submissions
Complainant claims, without supporting evidence, that he had attracted significant press coverage prior to and around the time of Respondent’s registration of the domain name. Complainant notes that in an open letter to him, Respondent wrote that he originally registered the domain name because “I thought you might be a star someday.”
FINDINGS
This Panel finds that Complainant has not met
his burden of showing that he was a well-known athlete at the time that
Respondent registered the disputed domain name.
The Panel issued an Order on May 23, 2007
requesting, inter alia, that Complainant provide any documentary evidence
in support of its contention that Mr. Leinart was very well known and had
attracted significant press coverage prior to and around the time of
Respondent’s registration of the domain name at issue. In response to this Order, Complainant
submitted a Declaration of his father, Robert Leinart, claiming that there were
numerous newspaper clippings relating to Matt Leinart and his football skills
throughout his junior year (1999-2000) and through the summer of 2000, before
his senior year. As with his prior
submissions, these claims were bare allegations and neither Complainant nor his
father attached copies of these alleged newspaper clippings.
Further, Complainant’s own Additional
Submission draws attention to a letter to Mr. Leinart from Respondent
indicating that he registered the domain because “I thought you might be a star
someday.” This letter provides contrary
evidence to Complainant’s contention that Matt Leinart was already well known at the time of registration of the disputed
domain name.
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 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;
(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.
To prevail under Policy ¶ 4(a)(i),
Complainant must establish that it had rights predating Respondent’s
registration of the disputed domain name.
See Brooke Bollea, a/k/a Brooke
Hogan v. McGowen, D2004-0383 (WIPO June 29, 2004) (finding for Respondent
because Complainant, the daughter of Hulk Hogan, had not proven that she had
been a public figure/celebrity at the time of the registration of the <brookehogan.com>
domain name).
Panelists have generally found that an
individual’s name may serve as a mark sufficient to invoke the Policy when the
name has been used as a commercial identifier and where the name has gained
sufficient fame or notoriety to serve a trademark function. See,
e.g., Brosnan v. Network Operations Ctr., D2003-0519 (WIPO Aug. 27, 2003).
Complainant has not provided adequate
evidence to establish that Matt Leinart’s name had gained such fame or
notoriety at the time of registration of the disputed domain name. (Compare
Brosnan, supra, in which the complainant
established the fame of his name by providing evidence of the number of motion
pictures which he starred in as well as the total box office sales from these
motion pictures.)
As the Panel has determined that Complainant
has failed to satisfy Policy ¶ 4(a)(i) because it does not have common law
rights in the MATT LEINART mark that predate Respondent’s registration of the <mattleinart.com> domain name,
the Panel need not decide the other two elements of the Policy. See
Wigwam Mills, Inc. v.
DECISION
As Complainant has
failed to establish the requirements of Policy ¶ 4(a)(i), Complainant’s
requested relief is hereby DENIED.
David A. Einhorn, Panelist
Dated: June 11, 2007
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