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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Women on Waves Foundation v. Yale Galanter

Case No. D2003-0165

 

1. The Parties

The Complainant is Women on Waves Foundation, PO Box 15683, 1001 ND, Amsterdam, The Netherlands, represented by Cecilia Garcia Podoley of The Netherlands.

The Respondent is Yale Galanter, 4 Family Life (Lane), 22630 Front Royal, Virginia, United States of America.

 

2. The Domain Names and Registrar

The disputed domain names <womanonwaves.com> and <womanonwaves.org> are registered with Gandi SARL.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") by email on February 28, 2003, and by hardcopy on March 10, 2003. On March 3, 2003, the Center transmitted by email to Gandi SARL a request for registrar verification in connection with the domain names at issue. On March 10, 2003,

Gandi SARL transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. On March11, 2003, the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 March 11, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 9, 2003.

The Center appointed Ross Carson as the sole panelist in this matter on April 16, 2003. 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 the owner of Benelux Trademark Registrations No. 671,425 for the trademark WOMEN ON WAVES registered July 20, 2000, and Benelux Trademark Registration No. 753,019 for the trademark WOMEN ON WAVES registered November l4, 2000. (Annex l to the Complaint).

The Complainant is the Registrant of the domain name <womenonwaves.org> registered on December 16, 1999 (Annex 2 to the Complaint) and the domain name <womenonwaves.net> registered on June 27, 2000. (Annex 3 to the Complaint). The Complainant is also the Registrant of the domain name <womenonwaves.com> which was ordered transferred to the Complainant in the Domain Name Women On Dispute Waves Foundation v Chris Hoffman, WIPO Case No. D2000-1608. (Annexes 4 and 5 to the Complaint). In addition the Complainant is the Registrant of the Domain Name <womanonwaves.info> registered February 3, 2003, (Annex 6 to the Complaint) and the domain name <womanonwaves.net> registered on February 4, 2003. (Annex 7 to the Complaint).

 

5. Parties’ Contentions

A. Complainant

The Complainant submits that Complainant is a nonprofit organization registered in the Netherlands as a charitable organization under Article 24, lid 4 of the Successiewet 1956. The Complainant submits it was founded by Dr. Rebecca Gomperts, a Dutch medical doctor. Dr. Gomperts submits the organization was established in response to research showing that 20 million abortions take place every year under unsafe and illegal conditions, resulting in the deaths, each year, of about 100,000 women. To address this crisis, the Complainant is developing a seagoing reproductive health clinic on board a Dutch ship. It is proposed that doctors on the ship will be able to offer safe, medically professional and legal first-trimester abortion services to women who request them. In order to ensure safety and minimize the risk of complications, Complainant will perform abortions only in the first trimester of pregnancy. See "http://womenonwaves.org/activities. html". By training local service providers, Complainant will ensure that post-abortion care and the other services delivered on board will continue to be available after the ship has left.

Complainant submits that through its websites it informs the general public of medical and social issues concerning unwanted pregnancy and unsafe, illegal abortion. Complainant states that it received grants from organizations including the Global Fund for Women (United States), The Mondrian Foundation (Netherlands), and Mama Cash Foundation (Netherlands) to support its dissemination of information about, and provision of, abortion and family planning services. The Complainant states that it has received extensive media coverage.

In late 1999, Complainant registered the domain name <womenonwaves.org> (Annex 2). It’s website at "http://www.womenonwaves.org" contains information about Complainant, it’s mission, and it’s proposed activities. The site prominently solicits contributions to support the foundation’s work. It also provides general information about abortion laws, contraception and sexually transmitted diseases.

The Complainant has also registered the domain name <womenonwaves.net> in the year 2000 (Annex 3). And after a favorable decision by the Administrative Panel from the WIPO Arbitration and Mediation Center in "Women on Waves Foundation v. Chris Hoffman, Case No. D2000-1608" (Annex 4), Complainant received the transfer of registration for the domain name <womenonwaves.com>(Annex 5). Nowadays, both of the above mentioned domain names redirect automatically to the main domain <womenonwaves.org>.

Trying to prevent any other registration of "confusingly similar" domain names by people who don’t belong to the organization, Complainant recently registered <womanonwaves.info> and <womanonwaves.net> (Annexes 6 and 7 respectively).

On July 15, 2001, the Respondent registered the domain names <womanonwaves.com> (Annex 8) and <womanonwaves.org> (Annex 9). Complainant submits that the Respondent supplied obviously false registration information: Respondent’s asserted telephone number was + 01l523747 (which has the wrong number of digits), and his address (oddly, the real address of the anti-abortion organization "Human Life International") was "4 Family Life, 22630 Front Royal, Virginia, United States of America". With the domain names in his power, Respondent caused them to redirect automatically as follows: "http://www.womanonwaves.com" redirects to "http://www.abortionismurder.org". (Annex 10). "http://www.womanonwaves.org" redirects to "http://www.operationrescue.org". (Annex 11).

Complainant submits that both of Respondent’s websites to which web surfers are redirected contain not only text where those who support abortion rights are compared to Nazis but also find their screens filled with pictures of the asserted remains of partial birth abortions and texts of a dubious literary, informative or medical value.

On both websites to which web surfers are redirected cash contributions are directly or indirectly requested. (Annexes 12 and 13).

Complainant’s Argument

The Uniform Dispute Resolution Policy sets out three prerequisites to transfer of a domain. The domain name must be "identical or confusingly similar to a trademark or service mark in which the complainant has rights"; the registrant must have "no rights or legitimate interests in respect of the domain name"; and the domain name must have "been registered, and [must be] being used, in bad faith."

1. Complainant submits that the <womanonwaves.com> and <womanonwaves.org> domain names are confusingly similar to the Women on Wave’s registered trademarks.

2. Complainant submits that it is clear that Respondent has no rights or legitimate interests in the domain name. Respondant has not used the "Women on Waves" mark in a bona fide manner to identify his own goods or services. Respodant has never been commonly known by the "Women on Waves" name.

Further, the Complainant submits that Respondent is not making a legitimate noncommercial or fair use of the domain names in dispute, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. [Uniform Dispute Resolution Policy, paragraph 4 (a)(iii)].

The Complainant submits that setting up a website at "www.womanonwaves.com" and "www.womanonwaves.org" and redirecting the user to "www.abortionismurder.org" and "www.operationrescue.org", respectively, Respondent is doing two things. First, Respondent is attempting to confuse the Internet user looking for Women on Waves supplied literature at the Complainant’s home page and to divert that person to another site the user does not want, so as to get more "hits" for that site, its content, and its appeal for cash contributions. Second, Complainant submits that Respondent is misleading the public about Women on Waves by sending the Internet user looking for Women on Waves to a page displaying pictures of purported partial birth abortions, misleadingly indicating to the public that Complainant provides "partial-birth" abortion services. Complainant does not. Such a use by Respondent of Women on Waves's trademark is neither "legitimate" nor "fair."

In any event Complainant submits that both websites to which Respondent has redirected the domain name solicit cash contributions: "www.operationrescue.org" does so directly (Annex 13). "www.abortionismurder.org" purports not to solicit contributions, and instead directs readers to contribute money to an organization called F.A.C.E. Life (Annex 12); in fact, however, a Who is search on "abortionismurder.org" reveals that it lists F.A.C.E. Lifeґs fax number as its own contact number (Annex 14). The two organizations, thus, are closely allied if not identical). Even a noncommercial actor seeking to criticize a trademark holder (and this would be the case of "www.abortionismurder.org", which claims to be a "not 503c non profit registered" but asks for donations "to the cause to other organizations", as shown in Annex 12 has no "rights or legitimate interests" in appropriating that trademark as its domain name, where the only function served by the use of that name is to mislead the Net user looking for the trademark holder's site and to unwillingly divert that user to a different site instead. Women on Waves v. Chris Hoffman, WIPO Case No. D2000-1608; Mission KwaSizabantu v. Benjamin Rost, WIPO Case No. D2000-0279; Lloyds TSB Bank PLC v. Paul Brittain, WIPO Case No. D2000-0231; Monty and Pat Roberts, Inc. v. Bill Keith, WIPO Case No. D2000-0299; see also Compagnie de Saint Gobain v. Com-Union Corp., WIPO Case No. D2000-0020.

Complainant further submits that Respondent’s domain name registrations of <womanonwaves.com> and <womanonwaves.org>, by contrast, exploits the Women on

Waves mark to mislead the Internet user, and is not a legitimate fair use.

Respondent is free to express opinions about Women on Waves, but not to identify himself as Women on Waves. Monty and Pat Roberts, Inc., supra; DaimlerChrysler Corporation v. Brad Bargman, WIPO Case No. D2000-0222. 3. Complainant submits that the Respondent, registered and used <womanonwaves.com> and <womanonwaves.org> in bad faith. Paragraph 4(b) of the Uniform Dispute Resolution Policy sets out several examples of registration and use in bad faith. They are merely examples, though, and they do not exhaust the definition: The "relevant issue is whether, in all the circumstances of the case, it can be said that the Respondent is acting in bad faith," a question that "can only be answered in respect of the particular facts of a specific case." Telstra Corp. v. Nuclear Marshmallows, WIPO Case No. D2000-0003; see also CSA International v. John O. Shannon, WIPO Case No. D2000-0071.

Complainant submits that the first indicium of bad faith in this case is that Respondent provided obviously, at least partially, false registration information: that, without more, is evidence of bad faith. Telstra Corp., supra; World Wrestling Federation Entertainment v. Matthew Bessette, WIPO Case No. D2000-0256.

Complainant further submits that Respondent’s, plain intention to mislead and divert Internet users looking for Women on Waves, hindering Complainant’s efforts by sending members of the public looking for Respondent’s website to a different site, constitutes bad faith. SGS Societe Generale de Surveillance S.A. v. Inspectorate, WIPO Case No. D2000-0025. One of the concrete examples of registration and use in bad faith supplied by the Uniform Dispute Resolution Policy is that of a person registering a domain name "primarily for the purpose of disrupting the business of a competitor." UDRP para. 4(b)(iii). That example is satisfied here. The word "competitor" in the Policy covers any person "who acts in opposition to another, and the context does not imply or demand any restricted meaning such as a commercial or business competitor." (The word "business" covers any "activities concerning the supply of some goods or services and in respect of which a reputation may be gained.") Mission KwaSizabantu v. Benjamin Rost, WIPO Case No. D2000-0279.

Respondent, an opponent of abortion, is for this purpose a competitor of Complainant, whose business is the dissemination of information about and the provision of abortion and family planning services. Complainant further submits that Respondent’s registration and use of the domain names <womanonwaves.com> and <womanonwaves.org> has had the primary purpose of disrupting the business of Complainant by diverting traffic from its site.

Complainant submits that the extent that Respondent’s activities are deemed commercial, the activities also fit within the UDRP example of "using the domain name [to] intentionally attempt to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant's mark." UDRP para. 4(b)(iv). It is not necessary, however, for the panel to find that Respondent’s activities fall within any particular example set out in the Policy. Even if no specific example applied, the totality of those activities - including the false registration information, the intention to mislead and divert users away from the Complainant’s website so as to increase traffic to Respondent’s website, and the redirection of those users in a way that conveys the false impression that Complainant is linked to partial birth abortions – would be sufficient proof of registration and use in bad faith. See Lloyds TSB Bank PLC v. PaulBrittain, WIPO Case No. D2000-0231; Mission KwaSizabantu v. Benjamin Rost, WIPO Case No.D2000-0279; see also CSA International v. John O. Shannon, WIPO Case No. D2000-0071.

A. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Failure to file a Response

Failure to file a Response permits the Panel to infer that the Respondent does not deny the facts which the Complainant asserts nor the conclusions which the Complainant asserts can be drawn from those facts. America Online, Inc v. Andy Hind, WIPO Case No. D2001-0642 (July 1, 2001), Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (July 20, 2000).

Substantive Issues

Paragraph15(a) of the Rules instructs the Panel to:

"decide a complaint on the basis of the statements and documents submitted inaccordance with the policy, these rules and any rules and principles of law that it deems applicable."

The burden for the Complainant, under Paragraph 4(a) of the Policy, is to prove:

- That the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights and

- That the Respondent has no rights or legitimate interests in respect of the domain name; and

- That the domain name has been registered and is being used by the Respondent in bad faith.

A. Identical or Confusingly Similar

The domain names in dispute <womanonwaves.com> and <womanonwaves.org> are confusingly similar to the Complainant’s registered trademarks for WOMEN ON WAVES. The Complainant’s trademarks are inherently distinctive. The domain names in dispute are confusingly similar to the Complainant’s trademarks and the substitution of "woman" in the domain names in dispute for the plural "women" in the Complainant’s trademarks is not sufficient to support a finding other than confusingly similar.

B. Rights or Legitimate Interests of the Respondent

The Respondent has not filed a Response and does not appear to have any rights or legitimate interest in the domain names in dispute.

C. Registered and Used in Bad Faith

The Respondent registered the domain names in dispute in which the singular "woman" is substituted for the plural "women" in the Complainant’s registered trademarks Women On Waves. Typosquating is by itself strong evidence of bad faith in registration and use of domain names. (The Sportsman’s Guuide, Inc. v. Vipercam, WIPO Case No. D2003-0145). Respondent’s use of domain names with only minor variations from the Complainant’s trademarks for a purpose opposed to the Complainant’s use of Complainant’s trademarks shows an intention to attract Complainant’s prospective viewers to Respondent’s websites. (SGS Societe Generale de Surveillance S.A. v Inspectorate, WIPO Case No. D2000-0025).

A further showing of bad faith is that the Respondent provided partially false registration information. (Telstra Corp. v Nuclear Marshmallows, WIPO Case No. D2000-0003).

Further evidence of bad faith is apparent from Respondent’s redirecting net surfers from the domain names in dispute to websites having information in direct conflict with Complainant’s information.(Lloyds TSB Bank PLC v Paul Brittain WIPO Case No. D2000-0279).

 

7. Decision

For the foregoing reasons, in accordance with Rule 15 and Paragraph 4(i) of the Policy, the Panel orders that the disputed domain names <womanonwaves.com> and <womanonwaves.org> be transferred to the Complainant.

 

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Ross Carson
Sole Panelist

Date: April 28, 2003