WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mary Pfaffko v. Domains By Proxy, LLC / Kristie Blevins
Case No. D2018-1418
1. The Parties
Complainant is Mary Pfaffko of Washington, D.C., United States of America ("United States"), represented by Lewis & Lin, LLC, United States.
Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States / Kristie Blevins of Georgetown, Kentucky, United States, self-represented.
2. The Domain Name and Registrar
The disputed domain name <marypfaffko.com> 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 June 26, 2018. On June 27, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 27, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on July 2, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 6, 2018.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 10, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 30, 2018. Upon request of Respondent, the due date for Response was automatically extended to August 3, 2018, in accordance with the Rules, paragraph 5(b). The Response was filed with the Center on July 31, 2018.
The Center received an unsolicited Supplemental Filing from Complainant on August 12, 2018.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on August 13, 2018. 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.
The Center received an unsolicited Supplemental Filing from Respondent on August 17, 2018.
4. Factual Background
Complainant, Mary Pfaffko, is an individual residing in Washington, D.C., United States. Complainant works in the field of wildlife biology and policy. Respondent, Kristie Blevins, is a professor at Eastern Kentucky University in the state of Kentucky, United States.
Complainant and Respondent have been engaged in a personal dispute since at least 2016. The origins and nature of the dispute are unknown to the Panel. However, according to the Parties, in 2016 Complainant was employed by the state of Georgia, United States in the wildlife Resources Division of the Georgia Department of Natural Resources. In November 2016, Respondent filed a complaint against Complainant with the Office of the Inspector General of the State of Georgia based on personal information in Respondent's possession. Complainant ultimately lost her job with the State of Georgia. Respondent thereafter registered the disputed domain name on January 17, 2018 using a privacy service. A website was posted at the disputed domain name at some point after January 17, 2018, and currently remains posted at the disputed domain name. The website concerns Complainant and includes content that is unflattering to Complainant.
5. Parties' Contentions
Complainant asserts that it owns common law or unregistered trademark rights in the name and mark MARY PFAFFKO. In support of that contention, Complainant maintains that she has become a renowned expert on wildlife biology and policy and that she has extensively used her personal name as a source identifier for over 19 years for her writing, speaking and policy analysis in the field of wildlife conversation. Complainant also asserts that her name is not a common name.
Complainant contends that the disputed domain name is confusingly similar to Complainant's MARY PFAFFKO mark as it consists in its entirety of the MARY PFAFFKO mark with the generic Top‑Level Domain ("gTLD") extension ".com".
Complainant argues that Respondent lacks a legitimate interest in the disputed domain name as Respondent (i) has no rights in the MARY PFAFFKO mark, (ii) is not commonly known by the disputed domain name, and (iii) has not used the disputed domain name in connection with a bona fide offering of goods or services. In that regard, Complainant asserts that Respondent has registered the disputed domain name for purposes of waging a personal vendetta against Complainant and to misleadingly redirect web traffic to a website that purports to relate to Complainant but which contains disparaging and damaging content about Complainant.
Lastly, Complainant asserts that Respondent has registered and is using the disputed domain name in bad faith as Respondent has deliberately targeted Complainant by registering the disputed domain name that solely consists of Complainant's name and mark and then using such to divert web users looking for information on Complainant to a website that is meant to damage and tarnish Complainant and her commercial activities. Complainant argues that Respondent's actions are simply meant to negatively affect the reputation of Complainant in an illegitimate manner and go beyond any justifiable legitimate criticism.
Respondent denies Complainant's contentions and initially contests certain statements made by Complainant regarding the prior actions of Respondent unrelated to the disputed domain name.
Respondent contends that Complainant has failed to establish common law trademark rights in the name "Mary Pfaffko". Respondent argues that the vast majority of the written works submitted by Complainant are actually works Complainant worked on within the scope of her employment with, and for, various organizations, and not as independent works of Complainant. Respondent also contends that the limited speaking engagements of Complainant were as a representative of various organizations and not appearances by Complainant on her own behalf. Respondent further contend that the limited articles published by Complainant on her own behalf have not been published in academic journals or other major publications, but have been mostly posts on a travel website at <matadornetwork.com>, and that Complainant has not published anything since February 2014.
Respondent asserts that she is making legitimate noncommercial use of the disputed domain name. In that regard, Respondent maintains that the website posted at the disputed domain name has no commercial activities and simply provides information based on facts that would be relevant to the wildlife conservation community. Respondent further argues that the postings on the website at the disputed domain name constitute noncommercial free speech, which is protected in the United States under the Frist Amendment.
Lastly, Respondent maintains that she has not registered or used the disputed domain name in bad faith. Respondent contends that she did not register the disputed domain name to prevent Complainant from reflecting a trademark in a domain name or to disrupt Complainant's business, is not a competitor of Complainant, has not sought to pass off the website at the disputed domain name as connected to Complainant, and has not attempted to profit from the disputed domain name by seeking to sell or transfer the disputed domain name to Complainant or a competitor. Respondent further argues that the disputed domain name is not used for any commercial purpose or for commercial gain. Rather, Respondent asserts that the disputed domain name is being used as a legitimate criticism site regarding Complainant and to provide factual information of interest to the conservation community.
6. Preliminary Point Concerning the Supplemental Filings of the Parties
Neither the Policy nor the Rules provide a party with an automatic right to submit additional arguments or evidence. Under paragraph 10 of the Rules, Panels enjoy broad powers for conducting administrative proceedings, provided that the parties are treated fairly and the proceedings are conducted expeditiously. Within this framework, a panel can determine within its sole discretion whether to admit or reject supplemental submissions, and, under paragraph 12 of the Rules, to request further statements or documents from either party. In exercising this discretion, many panels have made clear that additional evidence or submissions should only be admitted in exceptional circumstances, such as, by way of example, where new pertinent facts arise after the submission of the complaint or where a party could not have reasonably known of the existence, relevance or veracity of further material when it made its primary submission. See, e.g., Office Club, Ltd. v. John Adem, WIPO Case No. D2000-1480; Gordon Sumner, p/k/a Sting v. Michael Urvan, WIPO Case No. D2000-0596; The E.W. Scripps Company v. Sinologic Industries, WIPO Case No. D2003-0447; Cerulean Studios, LLC v. Hexuan Cai, WIPO Case No. D2013-0902. The Panel agrees with this position and adds that further material should only be admitted to the extent necessary in a proceeding and when such is essential in reaching a fair decision on the facts of the matter.
In the instant case, and after reviewing the Complaint and Respondent's response, the Panel does not believe there are exceptional circumstances in this matter that warrant the acceptance of Complainant's Supplemental Filing or Respondent's Supplemental Filing. The Panel therefore declines to accept the Parties' Supplemental Filings.
7. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
A. Identical or Confusing Similarity
It is evident that the disputed domain name is identical to Complainant's "Mary Pfaffko" name, as it consists solely of the name "Mary Pfaffko" with the irrelevant ".com" gTLD extension. The sole issue is whether or not Complainant's "Mary Pfaffko" name, which is not registered as a trademark, functions as a common law or unregistered trademark.
While the Policy does not specifically protect personal names, in situations where a personal name that is not registered as a trademark is being used in commerce, a complainant may be able to establish common law or unregistered rights in such personal name. See section 1.5.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"). Proving such common law or unregistered rights requires a complainant to show that the personal name has become a distinctive identifier which consumers associate with complainant's goods or services. WIPO Overview 3.0 at section 1.3. Merely having a famous or well-known name without showing that a personal name has been used in a sufficiently trademark source identifying way will not, in and of itself, establish such common law or unregistered rights. See, e.g., Philippe Pierre Dauman v. Diner Business, WIPO Case No. D2013-1255. The touchstone for a complainant to establish common law or unregistered rights in a personal name requires proof that the personal name has achieved "secondary meaning" (even if such only exists in a particular geographical area or market niche). Relevant evidence of such "secondary meaning" typically includes the duration and nature of the use of the personal name as a mark, the amount of sales under the personal name, the nature and extent of advertising using the personal name, consumer surveys, and the degree of actual consumer, industry and media recognition of the personal name. WIPO Overview 3.0 at sections 1.3 and 1.5.2.
Here, Complainant maintains that she has "become a renowned expert on wildlife biology and policy" and that as a result her MARY PFAFFKO name is "recognizable, well-known and distinctive within the wildlife conservation community". In support of these contentions, Complainant has provided a sworn declaration regarding the use of her personal name over the past 20 years, a resume of her work experience, representative articles authored by Complainant for print and online publications on wildlife conservation and policy, and examples of interviews and presentations given by Complainant.
At the outset, while Complainant's name does not appear to be a common name, it is not objectively clear that Complainant's name is well-known, as might be the case for a popular actor, performer, writer or public figure. Thus, the question turns on whether the evidence submitted by Complainant sufficiently establishes that Complainant has common law or unregistered rights in the "Mary Pfaffko" name. A review of the evidence submitted by Complainant, however, makes this questionable.
Complainant's sworn declaration contains a number of statements that are not substantiated with any evidence. For example, Complainant claims to have received "substantial public recognition for her advocacy efforts under the MARY PFAFFKO [m]ark", and an "extensive reputation in her field". However, there is no evidence in the record showing unsolicited third party public recognition of Complainant in this way, such as press articles or other materials demonstrating this fact. Notably, the two articles that Complainant submitted in which Complainant is quoted refer to Complainant as a representative of an organization, such as the "president of the D.C. chapter of the National Audubon Society" (in an article from June 2008), and a "policy analyst for Defenders of Wildlife" (in an article from May 2018). As for the two local radio reports submitted by Complainant that quote and/or interview Complainant these again refer to her as a representative of a particular organization, such as "the assistant chief of non-game conservation of the Wildlife Resources Division of the DNR", or simply as affiliated with "Georgia DNR". None of these materials establish Complainant's assertions of her substantial public recognition or extensive reputation, and there is no evidence that these articles or reports were widely circulated or garnered substantial attention, even within the wildlife conservation community.
Similarly, the limited articles and writings submitted by Complainant do not establish that Complainant's name is associated with any particular literary works or as a source of goods or services. Most of the articles submitted are from a website known as <matadornetwork.com> and date back to 2014 or earlier. There is no evidence regarding the extent of the circulation of these individual articles or whether any these articles enjoyed any kind of success or notoriety. As to the remaining publications these appear to be works authored by Complainant as a representative of a particular organization, for example, as the President of the Audubon Society of the District of Columbia, as a policy analyst for Defenders of Wildlife, or a wildlife biologist with the "District of Columbia, Department of the Environment, Fisheries and Wildlife Division". This second group of works appear to be public statements on specific issues by the organizations concerned, and for which Complainant worked for at the time, and not articles independently written by Complainant under her own name and apart from the organizations she worked for.
While the evidence shows that Complainant has some involvement with the wildlife conservancy community and has held several positions with various organizations over the years, there is insufficient evidence that Complainant's name is a distinctive identifier of her claimed services. Indeed, although Complainant relies on case such as Arthur Golden v. Galileo Asesores S.L., WIPO Case D2006-1215, to support the contention that the "Mary Pfaffko" name functions as a trademark, a review of that case shows that there was significantly more robust evidence presented to support a claim of unregistered or common law rights in a personal name. There, the evidence showed that Arthur Golden was the author of the well-known novel Memoirs of a Geisha, which had been translated into several languages, made into a famous motion picture and had sold over 5 million copies in English alone. Here, by contrast, the evidence of record is of a limited nature and mostly shows incidental appearances or works by Complainant on behalf of her employers. The evidence does not show use of the "Mary Pfaffko" name on a level that would establish trademark rights or show that the "Mary Pfaffko" name enjoys widespread recognition even in the wildlife conservancy community.
Under these circumstances, the Panel finds that Complainant has failed to prove that the disputed domain name is identical or confusingly similar to trademark in which Complainant has rights.
B. Rights or Legitimate Interests
In view of the Panel's finding in Section A above, it is unnecessary for the Panel to address this issue.
C. Registered and Used in Bad Faith
In view of the Panel's finding in Section A above, it is unnecessary for the Panel to address this issue.
The Panel wants to make clear that it takes no pleasure in reaching this decision. Hijacking the name of another for purposes of furthering what appears to be a personal vendetta is likely an abusive practice. However, the scope of the Policy is a narrow one and is meant to provide appropriate relief to a party that has rights in a trademark and not to address matters such as defamation or other torts that are outside the scope of the Policy. Such abusive practices would be better addressed in a court action and not through the UDRP.
For the foregoing reasons, the Complaint is denied.
Date: August 30, 2018