WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Western Washington University v. aak / Azra Ari Khan

Case No. D2004-0049

 

1. The Parties

The Complainant is Western Washington University, of Bellingham, Washington, United States of America ("USA"), represented by Office of the Attorney General, Washington, United States of America.

The Respondent is registered as "aak / Azra Ari Khan," Rawalpindi, Pakistan. The administrative and technical contact for the domain name is listed as Azra Ari Khan.

 

2. The Domain Name and Registrar

The disputed domain name <westernwashingtonuniversity.com> registered with Intercosmos Media Group d/b/a directNIC ("directNIC").

 

3. Procedural History

Filing and Compliance Review

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 21, 2004. On January 21, 2004, the Center transmitted by email to directNIC a request for the registrarís verification of details relating to the disputed domain name. On January 22, 2004, directNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.

In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 31, 2004, by email and on February 3, 2004, in hardcopy. One deficiency in the original Complaint was that it did not at all identify the correct Respondent, "aak / Azra Ari Khan." The Complainant made a minor amendment, in response to the Centerís deficiency notification, to identify the correct Respondent. However, the substance of the allegations in the Complaint remained the same. The amended Complaint retained the same allegations against parties that were not the proper Respondent, and made no explicit allegations against the Respondent.

After receiving the amended Complaint, the Center verified that the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). At this point, the Panel considers that it was at best unclear whether the amended Complaint satisfied the requirements of the Policy and the Rules (particularly, paragraph 4(a) of the Policy, and paragraph 3(b)(ix) of the Rules).

But where there is any doubt, it is ultimately the role of the Panel to consider the effect of a failure by the Complainant to comply with the Policy and Rules. Accordingly, paragraph 14(b) of the Rules provides that if a party does not comply with the Rules the Panel shall draw such inferences as it considers appropriate.

There is arguably some inconsistency between paragraph 14(b) of the Rules, and paragraphs 4(a) and (b) of the Rules. The effect of paragraphs 4(a) and (b) seems to be that a Panel should not receive a Complaint that is "administratively deficient." However, this Panel considers that the Complaint was appropriately forwarded, for the following reasons: Firstly, paragraph 14(b) necessarily involves a deficient Complaint (in the sense that it does not comply with the Rules) being considered by the Panel. Secondly, it is clear that the Centerís administrator has no authority to decide matters of a substantive nature concerning the dispute (Supplemental Rules, paragraph 6(b)). As paragraph 3(b)(ix) of the Rules relates to the substantive grounds on which the Complaint is made, ambiguity about the compliance of the Complaint in that paragraph is potentially a substantive issue. Accordingly, that ambiguity is appropriately resolved by the Panel.

Notification of Complaint

Under paragraph 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 4, 2004. In addition to the Respondent, the Center copied that notification to other parties named in the Complaint. Those parties were "Anti-Globalization, Domains / Pro-Life Domains Not for Sale," which was apparently the prior registrant of the disputed domain name; and "HonestSQL.net," identified in the Complaint as "the webmaster for ĎAbortionisMurder.í" The term "AbortionisMurder" is evidently used in the Complaint to refer to both a website at "www.abortionismurder.org" and the entity responsible for that website.

In accordance with the Rules, paragraph 5(a), the due date for Response was February 24, 2004. On February 6, 2004, at around the same time and in exactly the same terms, the Center received responses from HonestSQL.net, and AbortionisMurder, stating that they did not own the domain name. The Respondent however did not submit any response. Accordingly, the Center notified the Respondentís default on February 25, 2004.

Appointment of Panel

The Center appointed James A. Barker as the sole panelist in this matter on March 4, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

Panel Orders

On March 11, 2004, the Center notified the parties of Panel Order (No. 1). The Panel Order (No. 1) requested the Complainant to do three things: provide evidence of the Complainant's trademark rights to satisfy paragraph 4(a)(i) of the Policy, and address paragraphs 4(a)(ii) and (iii) of the Policy in relation to the correct Respondent. On March 16, 2004, by email and on March 22, 2004, in hardcopy, the Complainant filed a letter in response to the Panel Order (No. 1). The hardcopy of the Complainantís letter attached a copy of its registered trademark. However, for the other two elements of the Panel Order (No. 1), the Complainant stated only that:

"the correct registrant for the domain name <westernwashingtonuniversity.com> is Azra Ari Khan/aak and not Anti-Globalization Domains. Mr. Khan should not [sic] have been listed as a Respondent in this matter." (The use of the word "not" in this last sentence is an obvious error by the Complainant.)

Panel Order (No. 1) also requested the Respondent to indicate by March 19, 2004, whether or not it wished to file further information. No communication was received from the Respondent.

Because of the particular circumstances of this case, and because the Complainant failed to adequately respond to Panel Order (No. 1) (in relation to paragraphs 4(a)(ii) and (iii) of the Policy), the Panel issued a further order on March 29, 2004. That Panel Order (No. 2) again requested the Complainant to properly address its Complaint in accordance with paragraphs 4(a)(ii) and (iii) of the Policy. The Complainant then filed a further amendment on March 31, 2004, the complete substance of which was as follows:

"Complainant hereby amends its Complaint to assert that Azra Ali Khan/aak, if such person or entity exists, has, by listing him-or-itself as registrar [sic] of the websites [sic] ĎAbortionismurderí has engaged in the same fraudulent activity as has been asserted against the other named Respondents, i.e. failing to seek permission from Western Washington University to use its name in connection with despicable photographs. Complainant is unable to discern if Azra Ali Khan/aak exists in fact. Mail that Complainant sent to Azra Ali Khan/aak was returned, marked, ĎReturn to Sender.í"

By Panel Order (No. 2), the due date for the decision to be provided to the Center was extended to April 5, 2004.

(Unless otherwise indicated below, references in this decision to "the Complaint" are references to the Complaint as cumulatively amended in accordance with the Centerís notification of deficiency and the Panel Orders mentioned above.)

 

4. Factual Background

The Complaint states that "the Complainant university is an accredited public institution of higher education located in Bellingham, Washington. Established by the Washington State Legislature in 1893, the university has grown from serving the citizens of the state of Washington as a teacherís [sic] or Ďnormalí school to become a comprehensive university offering numerous degrees through the Masterís Degree in six colleges, serving over 11,000 students. The name of the university is established in Washington State law."

From suggestions in the Complaint, it appears that the disputed domain name resolved, for some period of time (not identified in the Complaint), to a website at "www.abortionismurder.org." In that connection, the Complaint attached a copy (a single page) of a webpage at "www.abortionismurder.org" containing some text but no images. That copy was printed on November 19, 2003. At the date of this decision however, the disputed domain name did not resolve to an active website.

 

5. Partiesí Contentions

A. Complainant

As noted above, the Complainant makes the assertion that the Respondent has "engaged in the same fraudulent activity as has been asserted against the other named Respondents." Therefore, it seems reasonable to the Panel to interpret the Complaint so that statements made in relation to any of the named Respondents (whether correctly identified as such or not) apply equally to statements made against the proper Respondent. Accordingly, the following is a summary of the Complaint:

The domain name "is identical to the name of the Complainant university. No permission has been sought or obtained from the university or any of its authorized representatives to use the name of the university in connection with the organization, AbortionisMurder."

The Respondent has no rights or legitimate interests in the domain name. "There is no connection through contract, experience or commonality of interest between Complainant Western Washington University and [the Respondent which is not an] accredited [institution] of higher education or [purports] to offer educational coursework for credit. [The Respondent has] purchased similar domain names using other university names, including, but not limited to "www.washingtonstateuniversity.com" (another public university in the State of Washington) and "www.utahstateuniversity.com" (a public university in the State of Utah)."

The domain name was registered, and is being used in bad faith. "[The Respondent] is apparently an organization that seeks through any means it can to persuade readers that abortion of fetuses in human females is wrong and should be illegalÖRespondent may well have decided to obtain the names of many universities and register them to achieve the goal of their organization."

"Due to the legitimate reputational interest of the university, having the relationship between the universityís name and theses [sic] other organizations [including AbortionisMurder] creates the likelihood that [the Respondent] seeks to blackmail the university into paying money to it to sell the domain name to the university and eliminate future possibilities of linking the two. Given the pattern of conduct by AbortionisMurder in having purchased the domain names using at least 3 public universities, evidence of pattern of conduct exists."

B. Respondent

The Respondent made no response to the Complainant, and has made no other communication in connection with this case.

Under paragraph 14(a) of the Rules, in the absence of a Response, the Panel shall proceed to a decision on the Complaint. Under 14(b) of the Rules, in the absence of exceptional circumstances, a Panel shall draw such inferences as it considers appropriate from the failure of a party to comply with the Rules. There are no exceptional circumstances in this case which would preclude the Panel from drawing appropriate inferences from the failure of the Respondent to respond. The Panelís inferences are set out below.

 

6. Discussion and Findings

Under the Policy, paragraphs 4(a)(i)-(iii), for the Complainant to have the disputed domain name transferred to it, the Complainant must prove that:

- the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

- the Respondent has no rights or legitimate interests in respect of the domain name; and

- the domain name was registered and is being used in bad faith.

Paragraph 4(a) of the Policy provides that the Complainant must prove each of these three elements.

A. Identical or Confusingly Similar

In response to the Panel Order No.1, the Complainant provided evidence that it has rights in the registered trademark WESTERN WASHINGTON UNIVERSITY. Accordingly, the Panel finds that the Complainant has rights in the trademark, and that the disputed domain name is at least confusingly similar to that mark. The trademark is uniquely associated with the Complainant, and so it seems highly probable that the disputed domain name was selected because of its association with the Complainant.

B. Rights or Legitimate Interests

It is well established that paragraph 4(a) of the Policy requires the Complainant to make out a prima facie case under paragraph 4(a)(ii) (and also under paragraphs 4(a)(i) and (iii)). Once that case is made out, the burden is on the Respondent to rebut that case.

The Respondent has filed no Response and, as such, has not rebutted any prima facie case made by the Complainant. The question then is whether the Complainant has made out a prima facie case against the Respondent. A prima facie case is one which is "true, valid or sufficient at first impression" or "self-evident" (See, Merriam-Webster On-line Dictionary).

The Complainantís case in this respect is comprised of 3 assertions: that there is no connection between the Complainant and Respondent; that the Respondent did not have permission to use the Complainantís name; and that the Respondent has a pattern of conduct of registering university-related domain names and pointing them to anti-abortion websites. The latter assertion was not supported by any evidence, and no prima facie or self-evident case is established by asserting it. The other assertions are however self-evident once they are made, and therefore sufficient to establish a prima facie case against the Respondent. As noted above, the disputed domain name is one that has particular association with the Complainant. It is therefore difficult to conceive that the Respondent could have any legitimate interest in that domain name.

The Respondent has been given three formal opportunities to respond to the Complaint (once following notification of the Complaint by the Center, and twice in response to two orders issued by the Panel). Under paragraph 14(b) of the Rules, the inference the Panel draws from the Respondentís failure to respond is either:

- that it does not exist in fact. This inference is supported by evidence from the Center, also indicated by the Complainant (although without evidence) that the Respondent is not known at the postal address it registered for the domain name; or

- that it does not or cannot credibly deny the allegations made by the Complainant.

In either case, the Respondent necessarily has no relevant rights or legitimate interests. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

On similar grounds to those stated above, the Panel finds that the disputed domain name was registered and is being used in bad faith.

The Complainant suggests, in effect, that:

- the domain name was registered, and is being used, for the purpose of attracting Internet users by creating a likelihood of confusion with the Complainantís mark; and

- there is a likelihood that the Respondent will seek to blackmail the Complainant into buying the disputed domain name.

The Panel does not accept the latter assertion. It was not supported by any evidence.

The former assertion is not made convincingly by the Complainant. The Complainant has provided no evidence (or even an explicit statement) that the disputed domain name pointed to an anti-abortion website. The Complainant has not identified when, or for what period, the disputed domain name pointed to such a website.

Despite this, as noted above, is seems clear that the disputed domain name can only credibly be associated with the Complainant. An Internet user would reasonably expect a website at the disputed domain name to be associated with the Complainant. Other uses of the domain name would likely be deceptive. That the disputed domain name does not currently point to a website does not, in these circumstances, prevent a finding that it is being used in bad faith. (An often-cited case supporting this principle is Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.) It is also well established that the provision of false contact details provides evidence of bad faith, as is apparent in this case for the Respondentís postal address.

 

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <westernwashingtonuniversity.com> be transferred to the Complainant.

 


 

James A. Barker
Sole Panelist

Dated: April 5, 2004