DECISION

Allan Houston v. Kaliweb, Inc.

Claim Number: FA0107000098060

PARTIES

The Complainant is Allan Houston, Pasadena, CA (“Complainant”) represented by Gary J. Nelson, of Christie, Parker & Hale LLP.  The Respondent is Indranie Bachu Kaliweb, Inc., Briarwood, NY (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <allanhouston.net>, registered with Network Solutions.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

Panelist: Richard DiSalle, Esq.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on July 13, 2001; the Forum received a hard copy of the Complaint on July 13, 2001.

On July 16, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name <allanhouston.net> is registered with Network Solutions and that the Respondent is the current registrant of the name.  Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On July 16, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 6, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@allanhouston.net by e-mail.

A timely response was received on August 6, 2001.  The Response is incomplete in that it does not specifically address all allegations of the Complaint.  However, it will be considered by the Panelist.

Complainant filed an additional submission which was received on August 8, 2001.

On August 9, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Richard DiSalle as Panelist.

RELIEF SOUGHT

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant contends that it has rights in the ALLAN HOUSTON mark, given that it is Complainant’s name, and Complainant is a famous professional basketball player.  See Jagger v. Hammerton, FA 95261 (Nat. Arb. Forum Sept. 11, 2000) (finding that Complainant held common law trademark rights in his famous name MICK JAGGER); see also Roberts v. Boyd, D2000-0210 (WIPO May 29, 2000) (finding that trademark registration was not necessary and that the name “ Julia Roberts” has sufficient secondary association with the Complainant that common law trademark rights exist).

Complainant contends that the disputed domain name is identical to Complainant’s famous ALLAN HOUSTON trademark.  See Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark); see also Amherst  v. IFC Corp., FA 96768 (Nat. Arb. Forum Apr. 3, 2001) (finding that Respondent’s domain name <customcommerce.com> is identical to Complainant’s CUSTOM COMMERCE trademark registration).

Complainant also contends that Respondent has failed to make any use of the disputed domain name in connection with a bona fide offering of goods or services, or fair or legitimate use except to provide a link to Respondent’s <kaliweb.com> website, and has registered and is using the name in bad faith.

B. Respondent

The Respondent contends that there is no direct link to the Kaliweb.com web site from <AllanHouston.net> and the assertion that somebody clicking through would even make a direct connection is mere speculation.  The Respondent also contends that the claim that it is not a true fan site is outlandish.  The site continues to be an ongoing project that Respondent intends to continue developing as an outlet to represent its strong dedication to “one of our favorite sport’s superstars”.  This site in no way harms the Complainant’s reputation, and is not meant to mislead people into believing that the site is an official site of Allan Houston. 

C. Additional Submissions

Complainant contends, in its additional submission, that Respondent’s alleged fan club/site does not permit Internet users to join any club, or add their names to a list and that Respondent’s reproduction of a copyrighted photograph of Complainant, owned by someone other than Respondent, is evidence that Respondent has no rights or legitimate interests in respect to the disputed domain name.  See Kasparov v. Am. Computer Co., FA 94644 (Nat. Arb. Forum May 30, 2000) (finding no legitimate rights and interests when Respondent used Complainant's name as a portal to a web site which, without permission, associated the Complainant as an endorser of Respondent's causes).

FINDINGS

(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.

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

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.

Identical and/or Confusingly Similar

The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. See Jagger v. Hammerton, Robert v. Boyd and Snow Fun, Inc. v. O’Connor, supra.

Rights or Legitimate Interests

The Respondent has no rights or legitimate interests in respect of the domain name.  See Kasparov v. Am. Computer Co. Furthermore, Respondent is not commonly known by the ALLAN HOUSTON mark.  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark).

Registration and Use in Bad Faith

The domain name has been registered and is being used in bad faith.  Respondent intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion.  See Drs. Foster & Smith, Inc. v. Jaspreet Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the Respondent directed Internet users seeking the Complainant’s site to its website for commercial gain); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding bad faith where Respondent used the domain name anneofgreengables.com to link users to a web site that contains information about the Anne of Green Gables literary works, motion pictures and the author, L.M. Montgomery, where a visitor to the web site may believe that the owner of the mark ANNE OF GREEN GABLES is affiliated with or has sponsored or endorsed Respondent’s web site).  Indeed, Respondent appears to be taking credit for elevating Complainant to “the upper echelons” and creating the site in Complainant’s honor. 

DECISION

The <allanhouston.net> domain name shall be transferred to Allan Houston.

Richard DiSalle, Esquire, Panelist

Dated: September 4, 2001

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