WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
George-Marie Glover and George-Marie Glover, LLC v. Cherie Pogue
The Complainants in this administrative proceeding are George-Marie Glover, an individual, and George-Marie Glover, LLC, a Washington corporation located at 16541 Redmond Way PMB 309-C Redmond, Washington 98052-4482, U.S.A.
The Respondent is Cherie Pogue, whose address is 4587 Marque Drive, New Orleans, Louisiana 70127, U.S.A.
2. Domain Name and Registrar
The domain name in dispute is as follows <georgemarie.com>. The domain name was registered by Respondent with OpenSRS c/o Tucows Inc. on January 9, 2001.
3. Procedural Background
On April 25, 2001, the WIPO Arbitration and Mediation Center received from Complainant via e-mail a complaint for decision in accordance with the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation of Assigned Names and Numbers (ICANN) on August 26, 1999 ("Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules).
The Complaint was filed in compliance with the requirements of the Rules and the Supplemental Rules, payment was properly made, the administrative panel was properly constituted, and the panelist submitted the required Statement of Acceptance and Declaration of Impartiality and Independence.
The Administrative Proceeding was commenced on May 2, 2001.
Respondent failed to file a response and a Notification of Respondent’s Default, dated May 23, 2001, was sent by WIPO to Respondent.
4. Factual Background
Complainant is an artist who has been working under the name "George-Marie" for over 15 years. On or around January 9, 2001, Complainant entered into a contract with Respondent under which Respondent was to design and host Complainant's web site. Pursuant to the "Invoice for Services," Respondent also was to set up e-mail "on your domain" for you…." See Complaint, Annex 4. As noted above, Respondent registered the domain name in dispute on January 9, 2001.
On April 2, 2001, Complainant wrote a letter to Respondent noting her surprise that the domain name is registered in Respondent's name and requesting that the registration be transferred to Complainant. See Complaint, Annex 8.
5. Parties' Contentions
Complainant contends that the domain name georgemarie.com is identical or confusingly similar to Complainant's e-mail address firstname.lastname@example.org, her personal name, "George-Marie," and her company name, "George-Marie, LLC."
Complainant further argues that Respondent has no rights or legitimate interests in respect of the domain name and, in fact, is currently harboring the disputed domain name in an empty folder and has neither completed the contracted web site nor cooperated in transferring the domain name as requested so that Complainant may hire someone else to design and host the web site.
Complainant further argues that the domain name should be considered as having been registered and used in bad faith because Respondent registered the domain name primarily for the purpose of selling or renting or otherwise transferring the domain name registration to Complainant. Complainant believes that Respondent is continuing to deny her access to the domain name as a means to harm her and her business for terminating the services of a close personal friend of Respondent. According to Complainant, "I can think of no other reason why Ms. Pogue has not cooperated with my requests to transfer the registration of the disputed domain name. She is not profiting from maintaining the domain name; she is only preventing the Complainant's company from marketing and sale opportunities through the internet."
6 . Discussion and Findings
The Panel has carefully reviewed the evidence presented and determines that Complainant has met all the requirements set forth in para. 4.a. of the Policy.
In the Panel's opinion, the key issue in this proceeding is whether it can be held that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. While the domain name <georgemarie.com> is clearly confusingly similar to "George-Marie" or "George-Marie, LLC", can it be held that either "George-Marie" or "George-Marie, LLC" is a trademark or service mark to which Complainant has rights?
The evidence does not indicate that Complainant owns any trademark registration for "George-Marie". However, the evidence includes Complainant's business cards in which the name "George-Marie, LLC" is used as a mark in connection with Complainant's artistic services. Thus, the Panel concludes that "George-Marie, LLC" serves as a service mark. The Panel further concludes that, as a result of Complainant's 15 years of use of such mark, Complainant has rights thereto.
Further, the Panel determines that Respondent has no rights or legitimate interests with respect to the domain name, within the meaning of para. 4.c. of the Policy. Based on the Panel's review of Respondent's web site, it is clear that Respondent is not using the domain name in connection with the bona fide offering of goods or services. There also is no evidence that Respondent is commonly known by the domain name or that any use is noncommercial or "fair." To the contrary, the Panel's review of the parties' contract convinces it that it was the parties' intent that Complainant would own any domain name.
Finally, the Panel finds evidence of the requisite "bad faith" registration and use of the domain name. Respondent's "passive" holding of the domain name, coupled with Respondent's apparent failure to respond to any of Complainant's communications, provides support for a determination of "bad faith" registration and use. See Telstra Corp. Ltd. v. Nuclear Marshmallows, Case No. D2000-0003 (Feb. 18, 2000).
In view of the above, the Panel grants Complainant's request for transfer to it of the domain name <georgemarie.com>.
Jeffrey M. Samuels
Dated: June 11, 2001