WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mahamayavi Bhagavan "Doc" Antle v. Domains by Proxy, LLC / Carole Baskin, Big Cat Rescue
Case No. D2014-1793
1. The Parties
Complainant is Mahamayavi Bhagavan "Doc" Antle of Myrtle Beach, South Carolina, United States of America ("U.S."), represented by Thomas & Brittain, PA, U.S.
Respondent is Domains by Proxy, LLC of Scottsdale, Arizona, U.S. / Carole Baskin, Big Cat Rescue of Tampa, Florida, U.S., represented by Johnson, Pope, Bokor, Ruppel & Burns, LLP, U.S.
2. The Domain Name and Registrar
The disputed domain name <docantle.com> (the "Domain Name") is registered with Wild West Domains, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 14, 2014. On October 15, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 16, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on October 20, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to amend the Complaint. Complainant filed an amended Complaint on October 23, 2014.
The Center verified that the Complaint, together with the amended 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 proceeding commenced on October 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 16, 2014. The Response was filed with the Center on November 16, 2014.
The Center appointed Christopher S. Gibson as the sole panelist in this matter on November 25, 2014. 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.
4. Factual Background
Complainant registered the domain name <docantle.net> on January 14, 2009. Complainant is the founder and director of The Institute of Greatly Endangered and Rare Species (T.I.G.E.R.S.) and the Rare Species Fund (R.S.F.).
The Domain Name was registered by Respondent on November 9, 2008. Respondent is the founder of Big Cat Rescue.
5. Parties' Contentions
(i) Identical or confusingly similar
Complainant states that he is commonly known as "Doc Antle", and is a world renowned animal trainer, big-cat conservationist, author, and the founder and director of The Institute of Greatly Endangered and Rare Species (T.I.G.E.R.S.) and the Rare Species Fund (R.S.F.). Complainant claims that he has acquired common law rights to the service mark, DOC ANTLE, which he has been using for over 30 years in association with his business and media appearances. Complainant has submitted evidence to show how he has allegedly used this name in connection with a range of activities in the animal training, entertainment fields and publishing fields.
Complainant refers to UDRP precedent to contend that his name is entitled to protection. In particular, for a personal name to function as a trademark and common law rights to exist, Complainant's personal name must have come to be recognized by the public as a symbol that identifies particular goods or services with a single source. Complainant states there is an unambiguous secondary meaning in the name DOC ANTLE, which identifies the source of the services provided by Complainant. Complainant asserts that he is widely regarded as one of the foremost animal trainers in the world. His exotic animals, animal training services, and entertainment services have been utilized under the DOC ANTLE mark in several films, commercials, music videos, print ads and television shows. He is also a published author. His published works under the name Bhagavan "Doc" Antle, include three books for children and a coffee-table book. A search for the name "Doc Antle" on Amazon.com reveals a list of his books for sale. Accordingly, the mark DOC ANTLE is a source identifier for Complainant's literary products.
Complainant contends that the Domain Name <docantle.com> is identical to the DOC ANTLE mark in which Complainant has common law service mark rights. The Domain Name incorporates the DOC ANTLE mark in its entirely. Respondent can demonstrate no legitimate purpose for registering a Domain Name identical to the DOC ANTLE mark. The Doc Antle name is distinctive and enjoys widespread notoriety in association with Complainant's entertainment and training services.
(ii) Rights or legitimate interest
Complainant contends that none of the circumstances under the UDRP for a respondent to demonstrate that it has a right or legitimate interest in a domain name are present in this case. First, Complainant states that to its knowledge, Respondent is not using or preparing to use the Domain Name in connection with a bona fide offering of goods or services. Second, the UDRP provides that a right or legitimate interest in a disputed domain name may be demonstrated where the registrant has been commonly known by the domain name, even if it has acquired no trademark or service mark rights. However, to the best of Complainant's knowledge, Respondent is not commonly known by a name consisting of the DOC ANTLE mark, in whole or in part. As explained above, Complainant states that the DOC ANTLE service mark has become synonymous with Complainant and his training and entertainment services in films and other media. Respondent is not an agent or licensee of Complainant.
Third, Complainant argues that any contention that Respondent's use of the Domain Name constitutes a legitimate noncommercial or fair use is without merit. Respondent cannot demonstrate that it is making legitimate noncommercial or fair use of the Domain Name. As explained below, Respondent's use of the DOC ANTLE mark misleads potential customers of Complainant, tarnishes the mark, and is registered for the purpose of disrupting Complainant's business for Respondent's own commercial gain.
(iii) Registered and used in and faith
Complainant argues the Domain Name is being used by Respondent to misdirect customers or users with an interest in Complainant, by sending them directly to a website at, "www.911animalabuse.com". Most of the links on this site send users to the site at "www.bigcatrescue.org". Like Complainant's T.I.G.E.R.S. Preservation Station, Big Cat Rescue owns an animal sanctuary that specifically caters to big cats, like tigers. Complainant states that Big Cat Rescue charges admission to its zoo and is, therefore, a direct competitor of Complainant's business as founder and director of T.I.G.E.R.S.
Complainant contends that the Domain Name was registered primarily for the purpose of disrupting the business of a competitor. Respondent registered the Domain Name for the purpose of printing defamatory and misleading statements on the website linked to it, with the intent to damage and disrupt Complainant's business. The fact that the Domain Name immediately sends users to a website titled "911 Animal Abuse" exemplifies Respondent's intent to disparage Complainant's reputation by insinuating that Complainant abuses animals. Further, the content on that website is very critical of Complainant. For example, the website refers to Complainant as "[o]ne of the most notorious exploiters of tiger cubs in the country." Further, in describing Complainant's big cat reservation, the website states: "[t]here is no way to know how many of these tigers end up living miserable lives in conditions compassionate people who care about animals would consider inhumane." The website even accuses Complainant of beating his tigers. Complainant asserts that these misstatements tarnish the service mark DOC ANTLE, which is strong evidence of registration and use of the Domain Name in bad faith.
Further, Complainant contends that Respondent intentionally attempts to attract, for commercial gain, Internet users to Respondent's online location by creating confusion with Complainant's mark. As stated above, the Domain Name is identical to Complainant's DOC ANTLE mark. Respondent registered the Domain Name and uses it to misdirect and lure potential customers of Complainant to a website that disparages the DOC ANTLE mark and directs users to a competing business, Big Cat Rescue. As mentioned, most links in the content of the website send the user directly to Big Cat Rescue's own website, where users are given the option to "DONATE NOW" by clicking on a prominent icon. Further, third-party advertising is prevalent on the website linked to the Domain Name, which is evidence of Respondent's intent to generate advertising revenues for commercial gain. Thus, the evidence is clear that Respondent registered and uses the Domain Name with the intent of confusing Complainant's fans and potential customers in order to direct traffic seeking information concerning the DOC ANTLE service mark to Respondent's own site for commercial gain.
Finally, Complainant argues that Respondent registered the Domain Name with the intent to trade on the goodwill of Complainant. As described above, Complainant submits that it is apparent Respondent intended that the Domain Name be identical to Complainant's mark, and that Respondent is attempting to trade on the goodwill of the DOC ANTLE mark by directing potential customers to Respondent's own site for commercial advantage.
(i) Identical or confusingly similar
Respondent contends that the Domain Name registered by Respondent is not identical or confusingly similar to a trademark or service mark in which Complainant has rights. In particular, Respondent claims that the Complaint does not establish that Complainant is commonly known as "Doc Antle", nor do those who know Complainant as Doc Antle understand the designation as referring to a particular source for a service or business, instead of just a personal name.
Respondent contends that Complainant's website at "www.docantle.net" does not support the contention that Complainant is generally known as Doc Antle or that DOC ANTLE, as an alleged mark, is associated with any goods or services. According to Respondent, no goods or services are offered through that website. Moreover, because Complainant's "www.docantle.net" site and its content postdate Respondent's registration of the Domain Name, such evidence cannot establish that Complainant had secondary meaning in DOC ANTLE as of the date Respondent registered the Domain Name. Respondent states that Complainant registered the <docantle.net> domain on January 14, 2009, two months after Respondent registered the Domain Name on November 8, 2008. Although Complainant must have been aware of the content on the "www.docantle.com" site at the time he registered the <docantle.net> domain name, Complainant waited over five years to bring this case.
Respondent claims that Complainant's website was altered recently, perhaps in anticipation of this case. Using the Internet Archive: Way Back Machine, Respondent has submitted information about Complainant's website at "www.docantle.net". As of December 30, 2010, Complainant used the site as a pass-through to Complainant's "www.tigerfriends.com" website. According to Respondent, this website shows that Complainant was doing business under the name "T.I.G.E.R.S. Preservation Stations". Complainant is allegedly not identified as "Doc Antle", but as "The Director of T.I.G.E.R.S., Bhagavan Antle". The next capture as of March 31, 2013 shows that Complainant was still using the site at "www.docantle.net" as a pass-through to Complainant's "www.tigerfriends.com" site. Once again, that captured site showed that Complainant was doing business under the name "T.I.G.E.R.S. Preservation Stations" and Complainant was identified as "The Director of T.I.G.E.R.S., Bhagavan Antle", not "Doc Antle". The same is allegedly true with respect to the captures of the "www.docantle.net" site on February 7, 2014 and May 17, 2014. According to Respondent, at some point after May 17, 2014, Complainant changed his site at "www.docantle.net" to look as it appears now. Even so, the website states that Complainant is "also known" as "Doc", "Doc Antle", "Bhagavan Antle", "Doc Bhagavan Antle", "Bhagavan", "Dr. Bhagavan Antle", and "Kevin Doc Bhagavan Antle". Moreover, Complainant's "www.tigerfriends.com" website remains as it was. Complainant is still identified as "The Director of T.I.G.E.R.S., Bhagavan Antle", not "Doc Antle".
Respondent refers to several YouTube clips that were referenced in the Complaint where Complainant appears on programs such as "ABC Nightline", the "National Geographic channel", "New Mexico Today", and "Nigel's Wild Wild World". Respondent argues that these videos do not support that Complainant is generally known as "Doc Antle" or that DOC ANTLE is associated with particular goods or services. While two of the videos predate Respondent's registration of the Domain Name, Complainant is not called "Doc Antle" in either one. Respondent reviews the four YouTube clips where Complainant is referred to variously as "Doc Bhagavan Antle, the Founder and Director of T.I.G.E.R.S."; "Bhagavan 'Doc' Antle, Author"; "trainer Doc Antle"; "'Doc' Bhagavan Antle, Director T.I.G.E.R.S."; and "Doctor Antle."
Respondent also reviews the name used by Complainant on his books. Complainant's name appears on four book covers. Each time, Complainant is identified as "Bhagavan 'Doc' Antle". The page from Amazon.com attached by Complainant also refers to Complainant as "Bhagavan 'Doc' Antle". The books authored or co-authored by Complainant in 2009 and earlier state his name as "Bhagavan Antle" (two books) or "Dr Bhagavan Antle" (one book). Not until 2011 is Complainant named "Bhagavan 'Doc' Antle". Nowhere in the printout is Complainant referenced under the name "Doc Antle" standing alone. Respondent contends that this evidence supports the contention that Complainant has never been known as "Doc Antle" as opposed to "Bhagavan Antle" (as of the time of registration of the Domain Name) or "Bhagavan 'Doc' Antle" (from 2011 onwards). Moreover, Respondent argues that this evidence does not support Complainant's contention that the mark DOC ANTLE has been a source identifier for Complainant's literary products", especially at the time that Respondent registered the Domain Name in 2008. Respondent further contends the other evidence submitted by Complainant does not show that Complainant is generally known as "Doc Antle". The IMDb website printout attached by Complainant is titled "Bhagavan Antle". The news article from Mail Online identifies him as "Dr. Bhagavan 'Doc' Antle" or "Bhagavan 'Doc' Antle".
Respondent argues that even if Complainant was able to establish that he has been known commonly as Doc Antle, Complainant has not established that secondary meaning exists in the alleged DOC ANTLE mark sufficient to provide Complainant with common law trademark rights. Respondent states a person does not acquire trademark rights from fame alone. To be entitled to protection under the Policy, a personal name must function as a trademark, and for common law trademark rights to exist, Complainant's personal name must have come to be recognized by the public as a symbol which identifies particular goods or services with a single source. In short, a person's name must be used such that a relevant segment of the public comes to recognize his name as a symbol that distinguishes his services from those of similarly situated service providers.
Here, according to Respondent, there is no evidence that Complainant ever performed any service under the name "Doc Antle". Other than writing a limited number of books, Complainant does not seem to have used a personal name for the purpose of merchandising or other commercial promotion of goods or services. Even with respect to his books, Complainant's name is used to identify him as an author or co-author, not as a trademark to identify the provider of any goods or service. As a result, there is no evidence that a substantial segment of the public understands Doc Antle, or any other personal name by which Complainant has been identified, as anything other than a personal name.
Putting aside that Complainant has not established common law rights in a name, the Domain Name is not identical or confusingly similar to a name by which Complainant has shown he is commonly known. To the extent Complainant is commonly known by any name, the evidence shows that name is "Bhagavan Antle" or at best "Bhagavan 'Doc' Antle". In either case, the dominant part of the name is "Bhagavan", an unusual name with which the public is unlikely to be familiar. The word "Doc" refers to "Doctor" and is a common appellation. Although the word "Antle" appears in both Complainant's name and the Domain Name, the appearance of Antle in itself is not sufficient to make the marks identical or confusing similar to a name that starts with "Bhagavan."
(ii) Rights or legitimate interest
Respondent states that Big Cat Rescue is a non-profit dedicated to rescuing and rehabilitating exotic cats. To fulfill this mission, Big Cat Rescue allegedly provides the best possible home for the animals in its care. According to Respondent, Big Cat Rescue aims to reduce the number of cats that suffer physical abuse, abandonment and premature death by teaching others about the plight of the cats, both in the wild and in captivity. Towards this end, Respondent asserts that Big Cat Rescue exposes people like Complainant who purport to act in the best interests of animals in their care while taking actions that show otherwise. Big Cat Rescue publicizes evidence and opinions regarding what it sees as exploitation of animals at its "www.911animalabuse.com" website. Through this site, Big Cat Rescue also solicits information from the public regarding animal abuse. This public relations campaign is an integral part of Big Cat Rescue's mission.
Respondent contends that it is making 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. Respondent registered and uses the Domain Name in a legitimate, noncommercial, fair-use manner to bring attention to the allegedly unethical manner in which Complainant and his organization T.I.G.E.R.S. handle and breed exotic cats. The Domain Name forwards to a page on Respondent's "www.911animalabuse.com" site at "www.911animalabuse.com/antle-bhagavan-doc". According to Respondent, this page contains information and opinions by Respondent regarding Complainant and his T.I.G.E.R.S. Institute. Respondent has submitted an affidavit to support its allegation that Complainant has been the target of government agencies entrusted with protecting animals and, more generally, of supporters of animal rights.
Respondent argues the registration and use of a domain name for purposes of noncommercial criticism constitute a legitimate fair use under the Policy. As to whether the remarks on Respondent's website are disparaging, as Complainant alleges, Respondent indicates that the UDRP is not required (or equipped) to determine the truth or falsehood of the criticisms that appear on the website. Thus, Complainant's focus on alleged defamation is misplaced.
Respondent rejects Complainant's argument that the Domain Name allegedly tarnishes the alleged DOC ANTLE mark. Respondent contends that Complainant misunderstands the meaning of tarnishment in the UDRP context. Tarnishment in this context refers to unseemly conduct such as linking pornographic, violent or drug-related images or information to an otherwise wholesome mark. In contrast, fair-use criticism, even if libelous, does not constitute tarnishment and is not prohibited by the Policy. Moreover, for the reasons stated above, Complainant has no protectable trademark rights in DOC ANTLE such that the alleged mark could be tarnished.
Respondent also argues that the Domain Name does not improperly disrupt any business of Complainant for improper gain. Respondent offers no goods or services at the website reached by visitors who connect to "www.docantle.com". To the contrary, Respondent claims that its website is aimed at criticism. Just as importantly, Complainant offers no goods or services at his "www.docantle.net" website, whose sales could be diverted. Although T.I.G.E.R.S. is mentioned, the website does not provide the address where members of the public can visit T.I.G.E.R.S., much less specify any goods or services offered through that organization. Complainant's argument that Respondent uses the Domain Name to take business away from T.I.G.E.R.S. misses the point. Even if true, to be actionable, T.I.G.E.R.S., not Complainant, would need to have trademark rights in a domain name.
Respondent asserts that Complainant's argument that Respondent uses the Domain Name to bolster business for Big Cat Rescue is also unsupported by the evidence. The allegation that "most of the links on 911AnimalAbuse.com send users to 'www.BigCatRescue.org'" is false. To the contrary, very few links at the "www.911animalabuse.com" site are to the site at "www.bigcatrescue.org". For example, the criticism page regarding Complainant at "www.911animalabuse.com/antle-bhagavan-doc" contains dozens of links. Only one of these links is to the Big Cat Rescue site, and it provides information about "cub handling in general". This page relates to Respondent's criticism of Complainant and is titled: "Why Petting Cubs Leads to Abuse."
Respondent rejects Complainant's two arguments asserting that Respondent allegedly uses the Domain Name for commercial purposes. First, Complainant asserts that third-party advertising is prevalent on the website. Second, Complainant argues that the site at "www.bigcatrescue.org", which visitors can reach by hitting a link at "www.911animalabuse.com/antle-bhagavan-doc," contains a button through which visitors can donate money. Respondent urges that the criticism page devoted to Complainant, like every page at "www.911animalabuse.com", contains a single advertisement. From 2008 to the present, all of these advertisements collectively earned a total of USD 58 in revenue, an average of less than USD 10 per year for the site.
Respondent contends that while a donation button does exist at "www.bigcatrescue.org", this fact is immaterial as such activity is ancillary to Respondent's main purpose, which is to criticize Complainant's treatment of animals. Respondent does not mislead any potential customer of Complainant. Complainant does not offer any good or service under the purported DOC ANTLE mark, as opposed to the mark T.I.G.E.R.S., under which Complainant operates his animal sanctuary. As Respondent could not disrupt any business of Complainant under the DOC ANTLE mark, because no such business exists, Complainant cannot satisfy the standard for diversion of customers. Respondent asserts that Complainant's claims of confusion are similarly groundless. Any such confusion would immediately be dispelled by the content of Respondent's website. And even if they could, such a low level of confusion is a price worth paying to preserve the free exchange of ideas via the Internet. Respondent concludes that it has legitimate interests in the Domain Name.
(iii) Registered or used in bad faith
Respondent contends that it did not register and does not use the Domain Name in bad faith. Evidence of Respondent's good faith is demonstrated by the manner in which Respondent has used the Domain Name. From registration, Respondent has used it for free speech purposes to inform the interested public of the alleged disreputable practices used by Complainant with vulnerable wildlife. For the reasons stated above, Complainant has not established that Respondent registered or uses the Domain Name in any manner of bad faith. As almost none of Complainant's evidence dates from prior to November 8, 2008, when Respondent registered the Domain Name, Complainant cannot demonstrate that Respondent registered the Domain Name in bad faith. Respondent refers to UDRP precedent, where the complainant did not supply any evidence that it was known in commerce under the claimed trademark at the time of the registration of the disputed domain name. For the above reasons, Complainant has failed to carry its burden of proving this third element in paragraph 4(a) of the Policy.
6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that the three elements enumerated in paragraph 4(a) of the Policy have been satisfied. These elements are that:
(i) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights to or legitimate interests in respect of the Domain Name; and
(iii) Respondent has registered and is using the Domain Name in bad faith.
A. Identical or Confusingly Similar
The Panel must first determine whether the Domain Name is identical or confusingly similar to a trademark in which Complainant has rights. Complainant has claimed common law rights in the mark, DOC ANTLE, based on 30 years of use of the name "Doc Antle" in commerce in connection with his business and media appearances, across a range of activities including animal training, entertainment and related services, and authoring (or co-authoring) several books. Respondent, on the other hand, has asserted that Complainant has not used this name in connection with any goods or services, instead using the name of his business, "T.I.G.E.R.S." or "T.I.G.E.R.S. Preservation Stations." Respondent has also contended that Complainant has not used the name Doc Antle in a consistent manner that is sufficient to give rise to common law rights, instead using name variations such as "Doc", "Doc Antle", "Bhagavan Antle", "Doc Bhagavan Antle", "Bhagavan", "Dr. Bhagavan Antle", and "Kevin Doc Bhagavan Antle".
Consistent with general principle of trademark law, which has recognized certain rights in marks based on their actual use in commerce, a UDRP complainant claiming unregistered or common law rights must establish that the name in question has acquired a secondary meaning as a mark identifying goods or services in commerce; there must be sufficient goodwill and reputation in the name and it must be associated with the complainant or his goods or services. See Tommy Lee v. Netico, Inc., WIPO Case No. D2005-0915. Further, personal names are not by themselves protected by the UDRP unless they are used in commerce and have acquired a secondary meaning as distinctive of the source of goods or services, which may include a celebrity's works or performances. See, e.g., Tommy Lee v. Netico, Inc., supra; Dr. Michael Crichton v. In Stealth Mode, WIPO Case No. D2002-0874; Julia Fiona Roberts v. Russell Boyd, WIPO Case No. D2000-0210.
Here, the Panel finds that the name "Doc Antle" is distinctive and has acquired secondary meaning sufficient to give rise to common law rights under the Policy in Complainant's DOC ANTLE mark within the field where he and his businesses have provided services. See, e.g., Tommy Lee v. Netico, Inc., supra (even where complainant offered "no specific proof of treating his name Tommy Lee as a common-law mark" there was ample evidence of the complainant's fame, including media articles and Internet search engine results, such that the panel found common law rights, although "the TOMMY LEE mark may be a relatively weak one"). The combination of the term "Doc" with the name "Antle", forming "Doc Antle", gives this name inherent distinctiveness (as compared to being merely descriptive), supported by the fact that there is no similar name being used in the areas where Complainant has operated his businesses and provided his services. (The distinctiveness of this name can be understood in the context of a continuum, with "inherently distinctive" marks at one end and "generic" or "descriptive" marks at the other end). Moreover, unlike some business owners, based on the evidence of record, Complainant as an entrepreneur has consistently promoted himself and his name, not just the name of his businesses (e.g., T.I.G.E.R.S. Preservation Stations), in association with his animal training and related entertainment services.
A search on Google reveals that Complainant has a website at "www.docantle.net", as well as a Facebook page and Twitter feed, both listed under "Doc Antle". Complainant has held the domain name <docantle.net> since 2009. However, he has been in the business of providing animal training and related entertainment services since the mid-1980s, thus pre-dating the commercial Internet. In his media appearances and work providing animal training and animals for film, television and other media he has (in many instances) promoted the names, "Doc Antle" or "Bhagavan 'Doc' Antle". For example, in the 1994 movie "The War", and the 1997 movie "Wild America", he is listed as the animal trainer or wrangler appearing under the name "Doc Antle". More recently, on his site at "www.docantle.net", even as it was presented prior to changes that were allegedly made during 2014, this site linked through to another of Complainant's websites at "www.tigerfriends.com", but went straight to a page providing a personal biography for Complainant. He refers to himself in the biographic passage as "Dr. Bhagavan 'Doc' Antle", "Doc" and "Doc Antle". This is evidence that he has been promoting himself and this name, not just the name of his business. Moreover, his media appearances and books have been to the same effect. The current version of the website at "www.docantle.net" is titled "Doc Antle" (at the top of the page) and provides at the bottom of the page:
Doc Antle is also known as:
"Doc Bhagavan Antle"
"Dr. Bhagavan Antle"
"Kevin Doc Bhagavan Antle"
Although Complainant has used variations on the "Doc Antle" name that may diminish the relative strength of his DOC ANTLE mark, the Panel finds that Complainant has nevertheless demonstrated secondary meaning for this mark under the Policy within the area where he and his businesses have provided services, such as animal training and related entertainment services. See Imperial College v. Christophe Dessimoz, WIPO Case No. D2004-0322 ("even if Complainant's mark THE IDEA LEAGUE acquired goodwill and reputation only in a limited academic field, this would still be sufficient to establish common law trademark rights within the meaning of paragraph 1(a)(i) of the Policy"). In other words, if a third-party set up in competition with Complainant under the "Doc Antle" name (or a confusingly similar name) to provide animal training and related entertainment services, the Panel considers that Complainant would likely have grounds for a passing off action, as he would be able to establish reputation and goodwill in this name, that the defendant was using it (or a confusingly similar variant of it) to cause deception in the relevant marketplace, and that Complainant was likely to suffer damage as a result.
The Panel observes that Respondent focused narrowly on the website at "www.docantle.net", arguing that no goods or services have been offered specifically through this site. However, as noted above, Complainant's services pre-date the commercial Internet and are not confined to online sales. Further, that site (and the site it previously linked to) provide information about Complainant and his specialized animal training and related entertainment services, such that Complainant and his services are promoted. This could lead an interested party to contact Complainant in order to use these services, not just take a tour of Complainant's T.I.G.E.R.S. Preservation Stations facility. The record shows that Complainant has provided personalized animal training services for films, television and for various other media for many years.
Finally, the Panel finds that the Domain Name is visually virtually identical to the DOC ANTLE mark, the only difference being that the space is omitted between the terms "doc" and "antle" in the Domain Name, which is a common approach in many domain names. Accordingly, the Panel concludes that the Domain Name is identical to Complainant's DOC ANTLE mark.
B. Rights or Legitimate Interests
The Panel finds that despite Respondent's detailed arguments, it has no rights or legitimate interests in the Domain Name. There is no evidence that Complainant authorized Respondent to use Complainant's DOC ANTLE name or mark or to register a domain name incorporating the name or mark. Complainant has demonstrated that Respondent is not commonly known by the Domain Name. Respondent's name is Carole Baskin, founder of Big Cat Rescue. Moreover, there is no dispute that Respondent specifically had in mind Complainant when Respondent registered the Domain Name that is identical to Complainant's name and mark. Indeed, Respondent targeted Complainant when registering the Domain Name.
Respondent contends that it is making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain, because Respondent uses the Domain Name to bring attention to the allegedly unethical manner in which Complainant and his organization handle and breed exotic cats. The Panel makes no findings (nor does it need to) concerning the allegations that Respondent has lodged against Complainant on the website linked to the Domain Name. However, the Panel is in agreement with those UDRP panels, which have determined that the right to express one's views is not the same as the right to use another's name and trademark in a confusing manner (in a domain name) to identify one's self as the source of those views, particularly where the domain name in dispute is identical to the trademark of the complainant. See, e.g., Monty & Pat Roberts, Inc. v. J. Bartell, WIPO Case D2000-0300 ("One may be perfectly free to express his or her views about the quality or characteristics of the reporting of the New York Times or Time Magazine. That does not, however, translate into a right to identify one's self as the New York Times or Time Magazine"); David Gilmour, David Gilmour Music Limited and David Gilmour Music Overseas Limited v. Ermanno Cenicolla, WIPO Case No. D2000-1459; Kirkland & Ellis LLP v. DefaultData.com, American Distribution Systems, Inc., WIPO Case No. D2004-0136. Thus, in balancing the rights of Complainant in his DOC ANTLE name and mark, and the rights of Respondent to choose freely a domain name for expressing views that are critical of Complainant, the Panel concludes that Respondent has impermissibly and deceptively taken advantage of Complainant's interests in his DOC ANTLE name and mark by registering the identical Domain Name. By contrast, the Panel considers that Respondent is free (within the limits of applicable law) to raise alleged concerns about Complainant's treatment of animals and breeding practices for exotic cats on Respondent's website at e.g. "www.911animalabuse.com".
The Panel is of the view that Respondent registered the Domain Name because of its connection to Complainant. Respondent's use of the Domain Name identical to Complainant's DOC ANTLE name and mark will generate an audience that is likely seeking information about Complainant, more than would be the case if Respondent chose a domain name that was not identical to Complainant's name and mark. In view of all of the facts and circumstances in this case, the Panel determines that Respondent has no rights or legitimate interests in the Domain Name under the Policy.
C. Registered and Used in Bad Faith
The Panel determines that the Domain Name has been registered and used in bad faith. Respondent has argued that the Domain Name was not registered in bad faith because, at the time of registration in 2008, Complainant had not acquired secondary meaning in the DOC ANTLE mark. As discussed above, it is undisputed that Respondent targeted Complainant when registering the Domain Name. Moreover, the Panel has carefully reviewed the record and information available, including websites and related information referenced in the evidentiary submissions of the parties. The Panel finds that, on the balance of the probabilities, within the relevant field, such as animal training and related entertainment services, Complainant had likely acquired secondary meaning in his "Doc Antle" name before 2008 when the Domain Name was registered. As noted above, Complainant's name, comprising a combination of the words/names "Doc" and "Antle", is not a common name; on its face, it is a distinctive name. This contributes to its secondary meaning. Moreover, Complainant's business and animal training services, including entertainment, appearances and stunts involving his animals, date from the mid-1980s, while his credits for animal training and related entertainment services in film, television, print and live appearances, many of which reference "Doc Antle", date from the 1990s. Although Respondent may challenge the ethical nature of Complainant's work with animals, and criticize the treatment that he and his businesses have provided in respect of animals in his care, it is difficult to refute that Complainant, who has consistently promoted not only the name of his business but also his own name, had developed secondary meaning in the "Doc Antle" name within the relevant field, even if the common law rights may not have been particularly strong at the time when the Domain Name was registered.
Respondent is using the Domain Name, which falsely conveys an association with Complainant, to lead Internet users to the website at "www.911animalabuse.com/antle-bhagavan-doc", where there is criticism of Complainant concerning his treatment of animals. The inevitable consequence is that there will be initial interest confusion, as a proportion of Internet users visiting the site will be doing so in the expectation of reaching a site of, or authorized by, Complainant. When they reach the site they may realize that they have been mistaken, but in any event the objective of bringing them there will have already been achieved.
Respondent is illegitimately identifying itself by the Domain Name as Complainant in a confusing manner and attracting visitors to Respondent's site by trading off on Complainant's reputation in his DOC ANTLE name and mark. The Panel finds that in this case, by using the Domain Name, Respondent has intentionally attempted to attract Internet users to the website linked to the Domain Name by creating a likelihood of confusion with Complainant's DOC ANTLE name and mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website. It is disputed between the parties as to whether Respondent has acted for commercial gain. Both Complainant and Respondent operate large facilities (Respondent refers to the Big Cat Rescue facility as an animal sanctuary) where visitors can pay to tour and see animals. In this respect, Complainant and Respondent are potential competitors, although they are not located in the same geographic locality: Complainant is located in Myrtle Beach, South Carolina, while Respondent is in Tampa, Florida. Complainant also provides other training and entertainment services that are presumably not offered by Respondent. The website linked to the Domain Name is focused on issues involving alleged animal abuse, but the site also has an advertisement on the right side of the webpage and has a link to Respondent's website at "www.bigcatrescue.org" where there is an option "Visit the Cats" with information on rates and how to schedule a tour of Respondent's facility, as well as a "Give Now" button for donations. Some panels have found that even charitable giving can be viewed as commercial activity by a respondent. See Monty and Pat Roberts, Inc. v. J. Bartell, supra ("In the instant case, Respondent is using the domain name 'montyroberts.org' to attract Internet users to its website by creating a likelihood of confusion with Complainant's mark. It is doing so for direct or indirect commercial gain. Whether or not such gains are ultimately used for charitable purposes does not alter this conclusion"). However, the Panel finds that, given all of the facts and circumstances of this case, whether or not Respondent's motives included commercial aims, the registration and use of the Domain Name was in bad faith.
Paragraph 4(b) of the Policy includes a non-exhaustive list of circumstances that constitute evidence of bad faith in the registration and use of a domain name. Here, the Panel is satisfied that the manipulation of Complainant's DOC ANTLE name and mark as a domain name is an abuse within the broad ambit of the Policy. The Panel agrees with the analysis as stated in David Foox v. Kung Fox and Bill Hicks, WIPO Case No. D2008-0472:
"Where, as here, the intentions of the Respondent are evidently to cause initial interest confusion and to exploit that confusion to express the Respondent's views of the trade mark owner (whether negative or positive), the Panel is clear that such a use of a domain name cannot be anything other than abusive. It amounts to deliberate impersonation of the rights owner with a view to expanding the coverage of the Respondent's views. In the view of the Panel, using a domain name with the intent of causing confusion (initial interest or otherwise) is an abuse."
See also Red Bull GmbH v. Paul Battista, WIPO Case No. D2010-0353 (although there is no finding that the respondent acted for commercial gain, the panel found that given all of the facts and circumstances, whether or not respondent's motives were for commercially exploiting the complainant's RED BULL mark, the registration and use of the domain name was in bad faith).
With regard to Respondent's right of free speech, it does not justify the deception of Internet users. If Respondent wishes to publicize views concerning Complainant, Respondent can do so in any number of ways without deceptively taking advantage of Complainant's DOC ANTLE name and mark.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <docantle.com>, be transferred to Complainant.
Christopher S. Gibson
Date: December 18, 2014