WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Rockefeller Family Fund, Inc. v. Krista Patterson, investorshub2
Case No. D2015-0859
1. The Parties
The Complainant is Rockefeller Family Fund, Inc of New York, New York, United States of America (“US” or “USA”), represented by Fross Zelnick Lehrman & Zissu, PC, USA.
The Respondent is Krista Patterson, investorshub2 of Cape Coral, Florida, USA.
2. The Domain Name and Registrar
The disputed domain name <rockefellerfamilyfund.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 19, 2015. On May 20, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 20, 2015, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on May 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 23, 2015.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on June 23, 2015. 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
The Complainant is a New York nonprofit corporation established for charitable purposes in 1967 by the Rockefeller family, one of the wealthiest families in the US. John D. Rockefeller built the Standard Oil Company, and his descendants, including David Rockefeller, Sr. and David Rockefeller, Jr., have been prominent in industry, banking, and politics. The Complainant operates a website at “www.rffund.org” (the “Complainant’s website”), where it describes its functions as providing grants and advocacy programs to promote environmental protection, particularly on issues of climate change, and the economic rights of women.
The Complainant claims common law protection for its name, ROCKEFELLER FAMILY FUND, as an unregistered trademark used in connection with “philanthropic and educational services”.
The Domain Name was created on October 30, 2014. It is registered in the name of “Krista Patterson, investorshub2”, with a postal address in Cape Coral, Florida, USA.
A company called InvestorsHub.com, Inc. (“InvestorsHub”) was established as a Florida business corporation in 2009, listing its principal place of business in Tallahassee, Florida, USA. According to its website at “http://investorshub.advfn.com”, “IvestorsHub.Com, Inc. is a wholly-owned subsidiary of ADVFN PLC, which trades on the London Stock Exchange as AFN.” InvestorsHub (which also calls itself “iHub”) operates the InvestorsHub NewsWire service to publish company press releases, and its website publishes financial data and provides a forum for investors to post comments about penny stocks and other investments.
Despite the fact that the Domain Name registration displays “investorshub2” after the name of the Respondent Krista Patterson, it does not appear that she is affiliated with InvestorsHub. There is no indication on the InvestorsHub website that the company uses the designation “investorshub2” or the postal address given in the registration. Krista Patterson is not mentioned in the publicly available portions of the InvestorsHub website, and she is not even listed as an “active” or “inactive” member of the InvestorsHub forum. Consequently, and in view of Ms. Patterson’s history of denigrating InvestorsHub, as summarized below, the Panel finds that the sole Respondent in this proceeding is the individual Krista Patterson.
The Respondent appears to be the same Krista Patterson of Cape Coral, Florida who posted comments about InvestorsHub in 2009 at “kristapatterson.blogspot.com” and “www.investorshangout.com”, where she said that Matt Brown of InvestorsHub persuaded her to help discredit the board of InvestorsHub for manipulating penny stocks and spying on users’ computers. Ms. Patterson’s posts are complex and disjointed, telling a tale that includes a Las Vegas casino, Chicago Mafia figures, spy cameras planted in Ms. Patterson’s home and in her neighbor’s, and her exploits in painting derogatory remarks about InvestorsHub on the roof of her house and on her street. She said the latter led to her being arrested, and this is confirmed on the website of the Lee County (Florida) Sheriff’s Office at “www.sheriffleefl.org”. The Panel notes that Matthew Brown was, in fact, identified as the operator of the InvestorsHub website in a 2009 complaint filed by the US Securities and Exchange Commission (“SEC”) charging that Brown was engaged in “pump and dump” schemes to profit from the manipulation of penny stocks that were discussed on the InvestorsHub website. Ultimately, criminal and civil penalties were imposed on Mr. Brown and others in 2012 in connection with these schemes, as reported on the SEC website (“www.sec.gov/news/digest/2012/dig072512.htm”).
The Domain Name redirects to a website (the “Respondent’s website”) at “http://vegasnoworg01.businesscatalyst.com”. The website is headed “VegasNow.org”, with a reference to “Past Blog @ thewaltdisneymafia.com”. At the top left of the landing page there is a photo of a woman lying on a bed beside a dog, above the tag line, “You Might Be a Victim of Human Trafficking”. The photo is tagged “krista patterson dog”. There is a link to “Today’s Blog” and a long list of links to earlier blog posts, many of them purporting to tell the story of Krista Patterson, a “forced sex slave” to a variety of wealthy and famous wealthy men, apparently including David Rockefeller, Sr. and David Rockefeller, Jr. Most of these links are inactive, but some tell a story in which the “investorshub board” drugs Krista Patterson, forces her to provide sexual services to influential men, and manipulates her (and her clients) so as to influence share prices on stock exchanges.
The Respondent’s website includes photos of many celebrities, including President Obama, Prince Charles, Giulio Andreotti, and the Emir of Dubai, who may figure in the Krista Patterson story line. Other links are captioned “My book pages” or refer to “story” or “pages”. Scrolling down the home page, one finds a photo of David Rockefeller, Sr. above text characterizing him as an “angry narcissistic, sadomasochist person”.
The website content is diverse, to say the least. At the top right of the landing page is a reproduction of a logo for the American television show “Saturday Night Live”. Logos and publicity photos for television networks, feature films, record albums, and a seemingly random variety of notables (from rock stars to popes to Winston Churchill and Queen Elizabeth II) are sprinkled throughout the website, along with a notice, “Original site @ warrenbuffettinvestments.org”. The Respondent’s website contains scattered blurbs about history, language, religion, and politics, as well as song lyrics and pieces of Krista Patterson’s story, with titles such as “Welcome to the Nightmare”, “Loading the Boat”, and “Murdered”. It is impossible to tell from the website itself whether Ms. Patterson believes that she is reporting facts or is intentionally creating a work of fiction loosely based on some events in her own life. In some instances, the posts on the Respondent’s website concern unrelated topics, such as discussions of television shows and news stories, dated over the past several years. In many respects, the Respondent’s website resembles a Pinterest or Tumblr social media page, displaying personal reflections, creative ideas, and evocative images or items of personal interest, rather than a fully structured website or blog.
The website does not appear to advertise any commercial goods or services offered by the Respondent, and it does not display banner advertisements for third-party advertisers. The third-party links on the website are chiefly to Wikipedia articles and other reference works.
The Panel also notes that much of the same content is found on another website that appears to be operated by the Respondent, using the name of another well-known financier, Donald Trump, at “www.donaldtrumpinvestmentscom.businesscatalyst.com”.
The Panel finds at least one instance where clicking on a link on the Respondent’s website (the one titled “President Obama’s Rape Crew”) displays the InvestorsHub Newswire website in a window. That website contains stock market data and links to the website of the E*Trade online stock brokerage service; it also displays banner advertisements for other third parties, apparently on a rotating basis. The window linked from the Respondent’s website does not appear to be a pop-up advertisement, however, and it would be unusual to find only one pop-up advertisement, rather deeply buried, on an extensive website such as this one, if the Respondent knowingly participated in an ad-server network in exchange for pay-per-click (“PPC”) advertising revenue. Because the “investorshub board” features as an antagonist in some of the blog posts telling the Krista Patterson story, it is possible that the link to the actual InvestorsHub website is automatic and unintended, or that it is deliberately introduced into the story told in the blog posts. In any event, the Panel cannot determine on this record that the Respondent’s website is designed to promote InvestorsHub, which seems unlikely given Ms. Patterson’s history, or to generate PPC advertising revenue, or to advance some other commercial purpose that is not evident from a perusal of the website associated with the Domain Name.
5. Parties’ Contentions
The Complainant argues that the Domain Name is identical or confusingly similar to its common law mark ROCKEFELLER FAMILY FUND, in which the Respondent has no rights or legitimate interests. The Complainant alludes to the possible defense of fair use for critical commentary but argues that the Respondent is not making fair use of the mark, because the Respondent does not make it clear that the Respondent’s website is not associated with the Complainant.
The Complainant asserts that bad faith is established simply because the Domain Name “is so obviously connected with such a well-known product that it’s very use by someone with no connection with the product suggests opportunistic bad faith”, quoting Veuve Cliquot Ponsardin, Maison Fondee en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163).
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a disputed domain name, a complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Under paragraph 15(a) of the Rules, “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
A. Identical or Confusingly Similar
The Domain Name is essentially identical to the Complainant’s name and asserted mark, lacking only the spaces between the words that cannot be included in URL addresses in the Domain Name System.
However, it is not entirely clear that the Complainant uses its name as a trademark. The Complainant simply states that “by October 2014, the date of registration of the Domain Name, Complainant’s name arguably had acquired secondary meaning and become distinctive of the Complainant thereby entitling Complainant to protection of the name.”
The Policy does not require a registered mark, but where the mark grounding the UDRP complainant is not registered, there must be persuasive evidence that it has acquired distinctiveness sufficient to warrant protection as a common law trademark or invoking related legal doctrines such as unfair competition and “passing off”. “Relevant evidence of such ‘secondary meaning’ includes length and amount of sales under the trademark, the nature and extent of advertising, consumer surveys and media recognition.” See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.7.
Here, the Complainant offers little evidentiary support for its claim that its name has, over time, acquired a secondary meaning associated with “philanthropical and educational services” in a relevant market. Grants and legislative advocacy may well represent goods or services in commerce, but the Complaint does not adequately demonstrate how the Complainant’s activities should be characterized as such. The Complainant was established in 1967, but neither the Complaint nor the Complainant’s website offers more than brief descriptions of some relatively recent “representative” grants. Neither indicates the number of grants delivered or advocacy projects undertaken, their total monetary value, or the number of people involved in the programs. The Complaint attaches only a handful of examples of media stories mentioning the Complainant, dated from 2002 to 2014, along with evidence that the Complainant has sponsored an annual “Energy Finance Conference” at the New York University School of Law, apparently since 2000. It is not evident on this record that the Complainant is particularly well known, much less famous, as the Complaint suggests, unlike the Rockefeller Foundation, endowed by John D. Rockefeller in 1913, which is frequently mentioned in media articles and in published lists of the largest and most influential US charitable organizations. Also, while there is no legal requirement to display a “TM” or “SM” symbol when asserting unregistered trademark rights, the Panel notes that the Complainant’s website includes no such indications of trademark claims, and there is no “Legal Terms” page or notice on the website mentioning intellectual property rights.
In short, the Panel finds slender evidence on this record to support the Complainant’s claim to common law trademark rights in its corporate name. Rather than dismissing the Complaint on this point, however, the Panel will consider its impact in the discussion of bad faith, below.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists non-exhaustive examples of how the Respondent may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following:
(i) before any notice to it of the dispute, the Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) that the Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or
(iii) the Respondent 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.
Since a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a disputed domain name, it is well established that after a complainant makes a prima facie case, the burden of production to show rights or legitimate interests in the disputed domain name shifts to the respondent. See WIPO Overview 2.0, paragraph 2.1.
The Respondent did not reply to the Complaint, and there is no indication on this record that the Respondent has used, or prepared to use, the Domain Name for a commercial offering, nor that the Respondent has been known by a corresponding name. The Respondent’s website does include critical commentary about a member of the Rockefeller family, although this represents a very small portion of the voluminous and unrelated content found on the website. Were there evidence of a well-known mark, commercial motivations to exploit it or sell the Domain Name to the trademark holder for an exorbitant price, or other indications of bad faith (see the discussion below), a panel could more readily conclude that the minimal “commentary” about the Rockefellers on the Respondent’s website was merely a pretext. Absent such indications of bad faith, however, the Panel finds that the Respondent has made a “legitimate noncommercial” use of the Domain Name. See WIPO Overview 2.0 at paragraph 2.4.
The Panel concludes that the second element of the Complaint is not established. However, the Panel will discuss the third element of the Complaint, bad faith, because it is intertwined with the first two elements in this proceeding.
C. Registered and Used in Bad Faith
The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
None of these examples appear to fit the circumstances of this proceeding, and the Complainant does not rely on any of them. Instead, the Complainant argues as follows:
“The ROCKEFELLER FAMILY FUND trademark enjoys widespread recognition and Respondent clearly adopted the Rockefeller name to capitalize on Complainant’s stellar reputation. Given the fame of the ROCKEFELLER FAMILY FUND trademark and the fact that the Domain Name is so obviously connected with Complainant’s famous mark, Registrant’s bad faith may be presumed.”
It is hardly clear on this record that the Complainant’s name enjoys “widespread recognition” as a “famous mark”, in contrast to the well-known commercial marks at issue in the UDRP decisions cited in the Complaint. But the string of words constituting the Domain Name is not generic, and the Respondent’s website does refer to two members of the Rockefeller family. Thus, the Panel agrees that the Respondent likely intended to attract Internet users familiar with the Rockefeller name. This would be consistent with the Respondent’s use of other domain names incorporating the names of celebrities, including Walt Disney, Warren Buffett, and Donald Trump.
The problem is that it is hard to see how the Respondent intended improperly to “capitalize” on the Complainant’s name, in a UDRP sense, as there is no evident commercial purpose to the Respondent’s website. Moreover, the Respondent’s website does publish critical remarks about at least one member of the Rockefeller family. The Respondent’s elaborate story about sexual exploitation and stock manipulation may be either delusional or a rather flamboyant exercise of literary license, but it is consistent with populist themes found throughout the Respondent’s website concerning the abuse of wealth and privilege. The Complainant contends that such polemical intent could not legitimize the use of its asserted mark, because of the likelihood of confusion:
“It is certainly likely that someone looking for information about Complainant or its charitable services would see the website associated with the Domain Name and not realize that the website was not affiliated with Complainant.”
In the Panel’s view, it is highly improbable that visitors arriving at a landing page headed with the name “VegasNow.org”, alongside images of a scantily clad woman and a logo for the “Saturday Night Live” television show, would believe that they had found the website operated by the Rockefeller Family Fund.
On this record, it seems probable that the Respondent registered this Domain Name and others expressly referring to wealthy individuals and families in order to advance her views and attract attention for her story, rather than to commercially exploit or tarnish brand names or the trademarked names of celebrities, as in the classic cybersquatting case. See Newell Operating Company v. HostMonster.Com and Andrew Shalaby, WIPO Case No. D2008-1805.
The Panel finds on the available record that the Domain Name is legitimately used for noncommercial purposes and does not reflect bad faith intent to exploit a trademark, extort a large purchase price, disrupt a competitor’s business, or deny the Complainant a domain name corresponding to its asserted mark (consistent with a pattern of such conduct). The Panel declines otherwise to presume bad faith, as the Complainant requests, because the Complainant has not demonstrated that its mark is so “famous” that no legitimate uses for the Domain Name could be envisaged.
The Panel concludes that the third element of the Complaint has not been established.
For the foregoing reasons, the Complaint is denied.
W. Scott Blackmer
Date: June 24, 2015