In the recent domain name dispute decision of Brayden T. Quinn a/k/a Brady Quinn v. Randy Darr FA1267051 (Nat. Arb. Forum July 20, 2009) a single member panel was faced with a dispute over the domain www.bradyquinn.com. Many of you may know the Complainant as the famous Notre Dame quarterback (now playing for the Cleveland Browns).
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.
In addressing the first element, the Panel noted that Complainant has filed for a service mark in April 2009, with rights dating back to December 2007. The Panel noted that since the the mark was only still subject to an application, a review of the common law rights standards would apply. The Panel found that “it is not inconceivable that the service mark already had acquired secondary meaning shortly after the first use of the service mark, as a result of the media attention and fame of Complainant.” The Panel found that Complainant established sufficient common law rights and that the domain was identical to Complainant’s mark.
In addressing the second element the Panel found that Respondent is not commonly known by the disputed domain as shown in the Whois records. Additionally, the Panel noted:
Respondent is using the <bradyquinn.com> domain name to redirect Internet visitors to a parking site with links advertising products related to Complainant. The Panel finds that Respondent’s use of the <bradyquinn.com> domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel also included discussion of an offer to sell the domain for $2,000.00. The Panel explained, “The Panel is of the opinion that this is evidence that Respondent has foregone any claim to rights or legitimate interests in the <bradyquinn.com> domain name pursuant to Policy ¶ 4(a)(ii).”
The Panel found Complainant satisfied this element as well, and moved to the final element, bad faith. The Panel explained:
As Respondent’s registration of the disputed domain name predates Complainant’s common law rights, the Panel finds that there is no possibility that Respondent could have registered, the <bradyquinn.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii)….The fact that Complainant’s accomplishments as a sportsman have been featured in national media before the registration of the disputed domain name does not evidence bad faith registration, since Complainant does not adduce conclusive evidence that its unregistered personal name was being used for trade or commerce at the date of the registration of the disputed domain name, let aside that the Complainant established common law trademark rights in the name predating the registration of the disputed domain name.
As a result, the Panel found that Complainant failed to establish the final element, and DENIED an order to transfer the domain.
DefendMyDomain Commentary: It is unclear why the Panel did not address the offer to sell factor in the bad faith section. This is another example of the unsecure world of famous persons names and domain disputes. We question again, knowing the facts of the case, why Complainant didn’t choose three Panelists.
