WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aquarian Foundation, Inc. v. Domain Privacy / Richard Stewart / Sri Sunkara Sankacharya, aka Rev. Bruce Kimberley Lowndes, aka KIM
Case No. D2021-4176
1. The Parties
The Complainant is Aquarian Foundation, Inc., United States of America (“United States”), represented by Fasthoff Law Firm PLLC, United States.
The Respondent is Domain Privacy, Australia / Richard Stewart, Australia / Sri Sunkara Sankacharya, aka Rev. Bruce Kimberley Lowndes, aka KIM, Australia.
2. The Domain Names and Registrar
The disputed domain names <higherspiritualism.com> and <higherspiritualism.org> are registered with Synergy Wholesale Pty Ltd (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2021. On December 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On January 13, 2022, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 13, 2022 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on January 19, 2022.
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 the Respondent of the Complaint, and the proceedings commenced on January 24, 2022. In accordance with the Rules, paragraph 5, the due date for Response was February 13, 2022. On January 25, 2022, the Center received an email from a third party naming itself “Mark Lowndes”, inquiring for further details of the Complaint. On February 2, 2022, a further email was received from a third party naming itself “Sri Sunkara Sankacharya aka: Rev. Bruce Kimberley Lowndes aka: KIM”, in which the author indicated that it had used the disputed domain names and held them since 2016. On February 7, 2022, the Respondent, Richard Stewart, sent an email to the Center reiterating that it was a domain name reseller and stating, “[…] not sure why my name is on there - the owner of the domain name [sic] should’ve been Sri Sunkara Sankacharya from the beginning”. On February 10, 2022, a further email was received from a third party naming itself “Kim Lowndes (Rev. Bruce Kimberley Lowndes - aka - Sunkara Sankacharya”, in which it invited the Center to check its identification with the Complainant’s representative and noted that the Respondent, Richard Stewart, was “simply the HOST and nothing more”. The Center notified the commencement of panel appointment process on February 15, 2022.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on February 21, 2022. 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 Washington, United States corporation, with a principal place of business in Seattle, Washington, United States. It is a religious institution founded in 1955 by Keith Milton Rhinehart (“KMR”), who also created the church’s foundational documents and sacred texts. The Complainant says that it owns copyright registrations for 221 of the 495 works said to be church teachings, consisting of manuscripts, sound and audiovisual recordings, and other works.
The Complainant is the owner of United States Registered Trademark No. 6051941 for the word mark CHURCH OF HIGHER SPIRITUALISM, registered on May 12, 2020 in Classes 41 and 45 (religious instruction and spiritual services). The mark contains a disclaimer in respect of the word “CHURCH” apart from the mark as shown. The Complainant also owns a corresponding Australian Registered Trademark for the same word mark, No. 2044020, registered on July 13, 2020 with priority from October 16, 2019, in Class 45. There is no disclaimer present in respect of this mark.
The Complaint describes a dispute between the Complainant and one of its former high-ranking members named Bruce Lowndes (the Panel notes in the discussion below that Mr. Lowndes appears to be the beneficial owner and effective underlying registrant of the disputed domain names). The dispute includes a court action currently pending in the United States District Court for the Western District of Washington, which according to the Complainant does not relate to the disputed domain names, though it does not describe its subject matter.
The Complainant asserts that Mr. Lowndes joined the Complainant’s church in 1976, adding that the Complainant and Mr. Lowndes later fell out after the latter moved to Australia. According to the Complainant, Mr. Lowndes was removed by the Complainant from all church positions and “excommunicated” by it in 1996, following certain complaints and allegations about Mr. Lowndes’s conduct which it is not necessary to repeat here. According to the Complainant, Mr. Lowndes obtained certain church materials to which he was not entitled and retained these after said removal and excommunication.
The Complainant states that, thereafter, Mr. Lowndes established his own church in Australia under the name HIGHER SPIRITUALISM. The Complainant claims to have made first use of the mark CHURCH OF HIGHER SPIRITUALISM in 1970, with first use in commerce since 1980. The Complainant states that Mr. Lowndes used the domain name <hispirit.org.au> and uploaded certain of the Complainant’s materials to the associated website, adding that said domain name is the subject of parallel proceedings before the Center.
The disputed domain names were registered contemporaneously on February 17, 2017. There is no website currently associated with the disputed domain name <higherspiritualism.com>. The disputed domain name <higherspiritualism.org> points to a website at “churchofhigherspiritualism.blogspot.com” which is entitled “Church of Higher Spiritualism | The Teachings of Higher Spiritualism” and which also features a copy of the email to the Center from Mr. Lowndes dated February 2, 2022. Said site also links to and promotes “our websites” including “www.hispirit.org.au”. The Complainant produces a screenshot which indicates that the website associated with <higherspiritualism.org> previously consisted of a “New Website Coming Soon” webpage promoting a collection of books by “Sri Sunkara Sankacharya”, which appears to be an alias or religious appellation of Mr. Lowndes.
5. Parties’ Contentions
The Complainant contends as follows:
Identical or confusingly similar
The Complainant owns the trademark registrations as noted in the factual background section above, and has used the corresponding mark in commerce worldwide for at least 40 years. The Complainant has spent “significant” sums of money advertising said mark and it has developed extensive goodwill and favorable consumer recognition.
The disputed domain names are confusingly similar to the Complainant’s mark because they are comprised of the most distinguishing feature thereof, HIGHER SPIRITUALISM, along with the generic Top-Level Domain which is disregarded in the comparison process.
Rights and legitimate interests
The Respondent has no rights and legitimate interests in the disputed domain names, has never been commonly known thereby, and is not making a legitimate noncommercial or fair use thereof without intent for commercial gain. The Complainant has not licensed the right to use its trademark to the Respondent and the Respondent is not authorized to act on the Complainant’s behalf. The Complainant’s founder coined the term “Higher Spiritualism” to define the teachings of the Complainant’s church as distinct from those of Spiritualism. Following excommunication, the Respondent began to use this mark to capitalize on the Complainant’s goodwill and to siphon church members away from the Complainant. The disputed domain name <higherspiritualism.com> does not resolve while the disputed domain name <higherspiritualism.org> resolves to a site that indicates that the Respondent is making preparations to use the Complainant’s trademark to sell books. This does not constitute a bona fide offering of goods or services as the Respondent is trading on the fame of the Complainant’s mark.
Registration and use in bad faith
The Complainant has owned and continually used the CHURCH OF HIGHER SPIRITUALISM mark in commerce for more than 40 years. When the disputed domain names were registered in 2017, the Respondent had been excommunicated from the church for 10 years. The Respondent was obviously aware of the Complainant’s trademark at that point, yet intentionally registered the disputed domain names for commercial and noncommercial gain. The disputed domain name <higherspiritualism.org> promotes the Respondent’s books but has previously been used to cross-post the Complainant’s works which the Respondent makes available at the domain name <hispirit.org.au>. The Respondent seeks a “donation” in exchange for access to said works.
The Respondent has registered the disputed domain names to prevent the Complainant from registering its trademark in a domain name. The Respondent’s inaction in using the disputed domain name <higherspiritualism.com> is within the concept of bad faith under the Policy. The Respondent has also provided false contact information to the Registrar in order to conceal its identity, constituting bad faith under the Policy. The named registrant “Richard Stewart” is a person who is unknown to the Complainant and has no right to the Complainant’s works or the disputed domain names.
In summary, the Respondent, “Sri Sunkara Sankacharya aka: Rev. Bruce Kimberley Lowndes aka: KIM”, contends as follows (noting that the Response does not address the elements of the Policy specifically):
The Respondent requests that the Complaint be denied and asserts that it has been using the disputed domain names since 2016. The Respondent explains that it donated around USD 1 million to the Complainant from the 1970s to the 1990s. The Respondent became an “Ordained Spiritual Essene Minister” in 1976. The Respondent met the Complainant’s founder in 1975, noting that said individual founded the Complainant on behalf of her son, KMR, described as a “divinely inspired” medium. The Complainant’s founder gave the Respondent permission to use KMR’s materials (notwithstanding copyright protections) in order to give his message to humanity. The Respondent operated under groups named HIGHER SPIRITUALISM in the United States for 23 years, in a personal relationship with KMR, to whom the Respondent introduced the concept of the coming Internet (then known as “the Wire”) in the mid-1980s. KMR signed a license in favor of the Respondent dated June 9, 1985 (copy produced) to use KMR’s copyright materials, allowing his audio lessons to become “mini Movies” for online use. The Respondent converted said lessons into digital format and awaited the coming of the technology whereby they could be uploaded for online dissemination. The Respondent opened the first website under the HIGHER SPIRITUALISM name in 1998 at “www.hispirit.org”.
After KMR’s death, the current President and Ecclesiastical Head of the Complainant took over the Complainant’s church and, in 2019, commenced a USD 12.5 million lawsuit against the Respondent and its friends in respect of the Respondent’s uploads of the Complainant’s materials. The decision in said lawsuit is anticipated and the Respondent asserts that “the sensible thing” is to await this. The Respondent has multiple concerns and disputes with how the Complainant is now run and lists examples of these which need not be repeated here. The Respondent avers that the Complainant never referred to HIGHER SPIRITUALISM in 23 years but only since the lawsuit commenced in 2019.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(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.
A. Preliminary matter: Identity of the Respondent
The UDRP Rules define the respondent as “the holder of a domain name registration against which a complaint is initiated”. Nevertheless, the Panel retains discretion to substitute or join another entity as a respondent by way of its general powers as set out in paragraph 10(a) of the Rules. In the present case, the holder of the disputed domain names is Richard Stewart, who has asserted that he is the domain name reseller in respect of the disputed domain names. A substantive Response has been received from a third party, naming itself “Sri Sunkara Sankacharya aka: Rev. Bruce Kimberley Lowndes aka: KIM”. This person is evidently the person against whom the broad thrust of the Complaint is directed. Based upon the email received from such person, it appears to the Panel that Sri Sunkara Sankacharya, aka Rev. Bruce Kimberley Lowndes, aka KIM registered the disputed domain names, via the reseller who is the listed holder of the disputed domain names, and that said person has control of the content on any associated websites.
In all of the above circumstances, the Panel determines that the proper Respondent is Sri Sunkara Sankacharya, aka Rev. Bruce Kimberley Lowndes, aka KIM. Nevertheless, the Panel also retains Richard Stewart’s name as Respondent in order to ensure that the Registrar could give effect to a decision to transfer the disputed domain names, in the event that the Complaint succeeds.
B. Preliminary matter: Effect of Court Proceedings
In terms of paragraph 18(a) of the Rules, the Panel has discretion to suspend, terminate or continue a proceeding under the Policy where a domain name dispute that is the subject of the Complaint is also the subject of other pending legal proceedings. In the present case, the Panel has been informed by both of the Parties that there are proceedings pending between the Complainant, the Respondent and others before the United States District Court for the Western District of Washington. The Complainant states that these proceedings are unrelated to the disputed domain names, indicating that there would be no reason for termination or suspension of the administrative proceeding. However, the Respondent has produced the front page of its declaration in said action, from which it does appear that the website associated with one of the disputed domain names, <higherspiritualism.org>, has itself been named as a Defendant. The Respondent, for its part, suggests that the Parties' dispute over the disputed domain names should await the outcome of the court action, although it does not expressly request either termination or suspension of the administrative proceeding.
The Panel notes that the existence of the concurrent court proceedings does not act as any bar to the Panel proceeding to a decision under the Policy, although the Panel does retain discretion in that matter. In the present case, however, the point is moot as the Panel has decided that the case is not suited to a determination under the Policy for the reasons provided below.
Having reviewed the terms of the Complaint and informal Response in this case, the Panel considers that it is unsuitable for determination under the Policy. It is not a typical cybersquatting case of the type which the Policy was designed to address. Essentially, the Parties have a long and complicated relationship extending over many decades, and, it appears to the Panel, a much wider trademark dispute than a clear case of abusive cybersquatting of domain names. Among the multi-faceted aspects to this dispute which give rise to particular difficulty for a determination within the scope of the Policy are the fact that the Panel is not in a position to rule upon the effect of the Respondent’s ordination or holding of any office and/or its past activities within the Complainant’s church, the extent and relevance of the Respondent’s alleged personal relationship with the Complainant’s founder and KMR, the interpretation of the alleged license of copyright regarding the Complainant’s materials (including its effect, if any, upon any implied right to use domain names along with websites to disseminate various teachings of the Complainant’s church or founder), and the effect, if any, of the Respondent’s alleged excommunication from the Complainant’s church well before it registered the disputed domain names. Greater exploration and clarification of some or all of these matters would inform both the question of rights and legitimate interests in the disputed domain names and the question of registration and use in bad faith. However, the written submissions procedure available under the Policy is not suited to this.
The Panel notes that the Parties are already in court and considers that this is likely to be a more appropriate forum for a determination of the domain name issues arising from the Parties’ prior relationship (see, for example, the discussions in The Thread.com, LLC v. Jeffrey S. Poploff, WIPO Case No. D2000-1470 and Quoteseek Corporation v. Internet Marketing Group, WIPO Case No. D2002-0511). The Parties would thereby be able to take advantage of a variety of procedural features which are not available to them under the Policy but which would assist in the determination of their dispute, including but not limited to applications for interim relief, discovery orders, oral testimony and cross-examination.
For completeness, the Panel notes that had it determined this case on the merits under the Policy, the Complaint would likely have failed. The Complainant’s registered trademarks both post-date the registration date of the disputed domain names. The Complainant alleges that it possesses unregistered trademark rights in the mark CHURCH OF HIGHER SPIRITUALISM arising through longstanding use but does not provide the type or quality of evidence typically required by panels under the Policy to find that such a term has acquired a secondary meaning (see section 1.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The sole evidence of the existence of such alleged unregistered rights on the present record are a series of conclusory allegations within the declaration of the President and Ecclesiastical Head of the Complainant, together with the “first use in commerce date” set out in the Complainant’s United States registered trademark. Such a date, when claimed on a trademark application, is of limited evidentiary value on its own in administrative proceedings brought under the Policy (see Dow Jones & Company, Inc. v. Idea Studios LLC dba Envent, WIPO Case No. D2009-1033). For the purposes of the present proceeding, therefore, this particular date amounts to a mere assertion which has not been evidenced to the Panel’s satisfaction. It must be noted that, for its part, the Respondent specifically denies that the Complainant ever referred to such a mark until the lawsuit between the Parties commenced in 2019.
The Panel takes no position on the merits of the various disputes that exist and are ongoing between the Parties regarding the Respondent’s alleged right (or lack thereof) to use the Complainant’s trademark and materials, whether in an online or offline medium. This Decision should not be taken as a specific endorsement of the case adopted by either of the Parties on this subject in their respective pleadings. Furthermore, the Decision is not addressed to any particular forum that may ultimately be seized of the matter.
For the foregoing reasons, the Complaint is denied.
Andrew D. S. Lothian
Date: March 7, 2022