Complainant is The First Baptist Church of Glenarden, Maryland, United States of America (“United States” or “U.S.”), represented by the law firm Holland & Knight, LLP, United States.
Respondent is Melvin Jones, Wynnewood, Pennsylvania or Bowie, Maryland, United States.
The disputed domain name <fbcglenarden.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 9, 2009. On January 12, 2009, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On January 13, 2009, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on January 20, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was
February 9, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on February 10, 2009.
The Center appointed Richard G. Lyon as the sole panelist in this matter on
February 20, 2009. The Panel finds that it was properly constituted. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant is a Baptist congregation that has operated in Maryland since 1917. Today Complainant occupies two campuses and has over 10,000 active members. In addition to Sunday worship services (some of which are broadcast by cable television, by radio, and on the Internet) Complainant provides to its members and its community other religious, educational, and pastoral services, and operates various outreach and missionary programs. Complainant's principal website is <fbcglenarden.org>. Complainant does not allege ownership of any registered trademarks, but claims common law rights in “First Baptist Church of Glenarden” and “FBC Glenarden” by virtue of its extensive and continuous use of these names to provide its services to its parishioners and to the public.
Respondent is a former member of Complainant's congregation, leaving Complainant's church after various disputes with the pastor. Respondent registered the disputed domain name in January 2005, about the time he departed the flock. An Internet user who enters the disputed domain name into a browser is automatically redirected to Respondent's site at “www.pulpit-pimps.org”. At this site Respondent includes articles and comments critical of organized religion in general and various Christian dominations in particular, and concerning religion and politics in American society. This website contains archived articles and a number of links to other noncommercial and religious-related topics. One link is to a page on which Respondent's subject is Complainant's pastor. Many of the pages on this website include a forum for members of the public to post comments, an opportunity apparently seized frequently. Respondent's website has no commercial content or commercial links.
Complainant contends as follows:
Complainant has common law rights in “First Baptist Church of Glenarden” and “FBC Glenarden” by virtue of continuous and extensive use of these terms for the services it provides. Common law rights are sufficient to invoke the Policy. The disputed domain name is identical to the latter of these marks and confusingly similar to the former, as FBC is a frequent and well-recognized abbreviation for “First Baptist Church.”
Complainant has not authorized Respondent to use its name or mark. Respondent has never been known, individually or as a business, by “FBC Glenarden” or “First Baptist Church Glenarden.” Respondent has used the disputed domain name to divert Internet users seeking Complainant to Respondent's website that is not legitimate or bona fide under the Policy. Nor is it legitimate noncommercial or fair use of Complainant's mark, as its sole purpose is “resentment against and desire to exact vengeance upon Complainant's pastor in connection with [Respondent's personal grievances],” which is not legitimate under the Policy. Furthermore, “Respondent, despite his religious hubris, has no right to register and use confusingly similar domain names as a tactic.”
Respondent registered and is using the disputed domain name in bad faith, for the same reasons as Respondent lacks rights or a legitimate interest in the disputed domain name. “Respondent's motive is of “crucial importance” to determining whether the domain name has been registered and used in bad faith, “ and “ it is well settled that the domain name registration and use motivated by Respondent's resentment, desire for vengeance or “indignation” is bad faith registration and use.”
Respondent did not reply to Complainant's contentions.
In any default case the Panel must review the record to “ensure that each Party is given a fair opportunity to present its case”. Here the Center's records reflect that it properly discharged the requirements of Rules paragraph 2(a), so there is no question as to the Panel's jurisdiction.
Unlike civil litigation in the United States, failure to respond in a Policy proceeding does not constitute an admission of any pleaded matter or result in the Policy equivalent of a default judgment. WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview”), paragraph 4.6; Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228. The Panel will proceed to evaluate Complainant's evidence, and his own examination of Respondent's website, against the requirements of paragraph 4(a) of the Policy.
Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. Common law rights will suffice to invoke the Policy, and Complainant has provided ample evidence of use of both “First Baptist Church of Glenarden” and “FBC Glenarden” as identifiers of its services. Furthermore, Respondent as a former congregant of Complainant was well aware of Complainant and its marks when he registered the disputed domain name. The Panel agrees with Complainant that “FBC” is a common abbreviation for “First Baptist Church” in the United States, so for purposes of the Policy the disputed domain name is identical to a mark in which Complainant has rights.
Respondent's website, to which the disputed domain name resolves, is a criticism site that raises issues of free speech under the United States Constitution. Particularly is that so in light of the political, social, and religious nature of the topics discussed; this kind of speech is entitled to special protection under American Constitutional law. The Panel may not sidestep these issues merely because Complainant finds the site's content vulgar or offensive, or because Respondent may have registered and used the site to air a personal grievance or, to use a Biblical phrase, to wreak vengeance upon Complainant. The Constitution's free speech guaranties extend beyond elegant and temperate prose, stopping only when the speech is defamatory or obscene.
The site's content is plainly not obscene. This Panel is incapable of determining whether its content is defamatory, though on its face it appears not to be. Many elements necessary to establish the intentional tort of defamation are far beyond the scope of this proceeding: factual bases for statements made, whether Complainant's pastor is a public figure who would thus be required to prove actual malice, the extent to which Respondent's commentary is opinion, among many others. It is difficult to imagine how these complicated factual and legal issues could ever be adequately developed in an abbreviated Policy proceeding. These are matters for a court, not a UDRP panel.
For the same reasons the Panel has no way to judge Respondent's “motive”, and will not presume to do so solely on unsubstantiated allegations or the Panel's own opinions drawn from Respondent's website.1
The issue though is not motive or the truth or falsity of Respondent's comments, but Respondent's entitlement to use Complainant's mark as his website address. That subject in criticism cases continues to vex courts and UDRP panels alike. The WIPO Overview (paragraph 2.4) has no consensus or majority view on whether criticism constitutes “a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue,” Policy, paragraph 4(c)(iii):
In the event that a domain name confusingly similar to a trademark is being used for a genuine noncommercial free speech web site, there are two main views. There is also some division between proceedings involving U.S. parties and proceedings involving non-U.S. parties, with few non-U.S. panelists adopting the reasoning in View 2.
“View 1: The right to criticize does not extend to registering a domain name that is identical or confusingly similar to the owner's registered trademark or conveys an association with the mark.
View 2: Irrespective of whether the domain name as such connotes criticism, the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if the use is fair and non-commercial.”
This Panel has consistently adhered to View 1 when, as here, the disputed domain name is identical to Complainant's mark. E.g., Joseph Dello Russo M.D. v. Michelle Guillaumi, WIPO Case No. D2006-1627; InMed Diagnostic Services, LLC, InMed Diagnostic Services of S.C., LLC, InMed Diagnostic Services of MA, LLC and InMed Diagnostic Services of IL, LLC v. James Harrison, WIPO Case No. D2006-1230; Texans For Lawsuit Reform, Inc. v. Kelly Fero, WIPO Case No. D2004-0778; Justice for Children v. R neetso / Robert W. O'Steen, WIPO Case No. D2004-0175. In so doing this Panel has emphasized the rationale of the “initial interest confusion” doctrine, as View 1 has occasionally been referred to in the courts. As stated in the Dello Russo case, supra, in language that applies with equal force here:
“Respondent's selection of Complainant's name for her criticism site allows her to make use of Complainant's service mark in a manner that would lead an ordinary Internet user initially to believe that Respondent was Complainant or that Respondent had Complainant's permission to distribute her message. Such use is not legitimate under paragraph 4(a)(ii) of the Policy, and the safe harbor of paragraph 4(c)(iii) is not available because Respondent undeniably intended ‘to misleadingly divert consumers'.”
The present case illustrates very well why applying the initial interest confusion doctrine will not interfere in any way with Respondent's vigorous exercise of his free speech rights on the Internet. This decision will not require Respondent to change one word of the content of his principal site (including his statements about Complainant), and will not require Respondent to move that content to a new web address. Respondent's current site will proceed exactly as it does now. Respondent does not post any content at the domain name that incorporates Complainant's mark; copying Complainant's mark is not used for free speech, indeed for any speech at all. All commentary may be found at Respondent's principal website, “www.pulpit-pimps.org”. Rather than using the disputed domain name as a forum for criticism of Complainant or its pastor Respondent uses it only to attract, then immediately divert, individuals searching for Complainant.
Preventing such an appropriation of another's asset intentionally to mislead is precisely why the Policy was adopted. As the Panel pointed out in Justice for Children v. R neetso / Robert W. O'Steen, supra (emphasis in original):
“Decisions under the Policy focus upon a respondent's use of another's mark in a domain name to attract Internet users to respondent's site. This is true in typosquatting cases and in cases where a respondent selected his domain name in anticipation of subsequent sale to the mark owner. The content of Respondent's sites in these two categories of cases in which respondents almost uniformly lose is irrelevant to the harm to the mark owner and to the unwary consumer. That harm results from the confusion caused by the initial attraction to the site by means of borrowing the complainant's mark. And that is exactly the harm the Policy was adopted to address.
[…] By intentionally selecting Complainant's mark to present his views, he has not made a legitimate use of the domain names.”
One final issue, a matter left open in Justice for Children, remains for consideration. Respondent has been operating his website since early 2005, and the blog features there have attracted many comments from the public. A four-year delay is particularly troubling given the political, religious, and social commentary on Respondent's website. The public postings are evidence that some individuals who share Respondent's views have come to rely upon his site as a guidon for their position and advocacy. Facilitating communication among like-minded individuals, after all, is one of the Internet's great benefits (as well as a highly effective means of its promoting free speech and political activity).
Neither laches nor estoppel is a defense to a Policy proceeding, but continuous use may allow a respondent to establish that he has “been commonly known by the domain name, even if [he has] acquired no trademark or service mark rights” in it, Policy, paragraph 4(c)(ii). When as here the site's content raises First Amendment issues the Panel is especially concerned about third party reliance. Had Respondent used the disputed domain name itself for his criticism site this would raise a difficult issue. But that domain name is used only to redirect, so any reliance is on “www.pulpit-pimps.org” and not the disputed domain name. As noted this decision affects not at all the content of, public interest in, or web address of what appears to be Respondent's main website.
The Panel therefore finds that Respondent lacks rights or a legitimate interest in the disputed domain name.
For similar reasons the Panel concludes that Respondent registered and used the disputed domain name in bad faith. By analogy to the typosquatting cases, where bad faith is presumed from the intentional similarity to the Complainant's mark, Respondent's registration and continued use were undertaken intentionally and expressly to disrupt Complainant's activities to expand the audience for his criticism by misleading Internet users as to the “source, sponsorship, affiliation, or endorsement” of his website, by means of the initial confusion discussed in the preceding section.
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 <www.fbcglenarden.com>, be transferred to Complainant.
Richard G. Lyon
Dated: February 26, 2009
1 The cases cited by Complainant in support of its contention that motive is “crucial” in Policy determinations lend scant support to that argument. The only mention of “vengeance” or “motive” in Kingspan Group Plc and Kingspan Access Floors Limited v. Mark Thomas, WIPO Case No. D2005-0320, is in the panel's discussion of complainant's contentions; its decision on the merits took no account of motive. The panel in O2 Centro Wellness, S.L. v. DOMAIN DROP, S.A., WIPO Case No. D2006-1469, while noting that vengeance was not by itself a legitimate use, had found the content on the website disparaging, and decided the case on grounds similar to those adopted by the Panel here (“Freedom of speech does not imply that Respondent may register Complainant's mark as a domain name.”).
Perhaps because “bad faith” in everyday English connotes a particular state of mind panels may be tempted to judge a party's (complainant's or respondent's) “motive” in evaluating the merits. Bad faith in a Policy proceeding, however, should be judged to the extent possible on a party's conduct as shown by the objective evidence, with conduct judged against the language in the Policy as developed in Policy proceedings and not a panel's subjective opinion of the party's “motive.” As this Panel sees it, a pure heart will not excuse conduct that violates the language of the Policy, nor will an admitted vendetta mandate a finding of bad faith until each applicable Policy criterion has been proven.