DECISION

Christopher Trotman Nixon v. Lucian Kaine a/k/a Nunya Binness

Claim Number:  FA0303000149415

PARTIES

Complainant is Christopher Trotman Nixon Hunt Valley, MD (“Complainant”) represented by Sheryl N. Stephenson, of Shapiro Sher Guinot & Sandler PA. Respondent is Lucian Kaine a/k/a Nunya Binness, I Don’t Think So!, MA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <trotnixon.com>, registered with Enom, Inc.

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.

Tyrus R. Atkinson, Jr., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 14, 2003; the Forum received a hard copy of the Complaint on March 18, 2003.

On March 14, 2003, Enom, Inc. confirmed by e-mail to the Forum that the domain name <trotnixon.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 March 28, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 17, 2003 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@trotnixon.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On April 29, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <trotnixon.com> domain name is confusingly similar to Complainant’s TROT NIXON common law trademark.

2. Respondent does not have any rights or legitimate interests in the <trotnixon.com> domain name.

3. Respondent registered and used the <trotnixon.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Christopher Trotman Nixon (publicly known as “Trot Nixon”), is a famous Major League Baseball Player who currently plays for the Boston Red Sox. Complainant’s submission includes articles that summarize and reference Complainant’s baseball statistics and career.

Respondent, Lucian Kaine a/k/a Nunya Binness, registered the <trotnixon.com> domain name on January 31, 2003. Prior to Respondent’s registration of the subject domain name, <trotnixon.com> served as the URL for a website maintained by a fan of Complainant that contained information and statistics relating to Complainant’s baseball career. However, after Respondent became the registrant of the domain name, <trotnixon.com> currently resolves to a website that displays sexually explicit information and photographs. The contents of Respondent’s website do not contain any information relating to Major League Baseball or Complainant.

DISCUSSION

Paragraph 15(a) of 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."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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

Complainant has established rights in the TROT NIXON mark because it is well established that celebrities have sufficient rights in their names to satisfy Policy ¶ 4(a)(i)’s initial threshold requirement. See Estate of Tupac Shakur v. Shakur Info Page, AF-0346 (eResolution Sept. 28, 2000) (finding that a “person may acquire such a reputation in his or her own name as to give rise to trademark rights in that name at common law”); 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 Complainant that common law trademark rights exist); McCarthy on Trademarks and Unfair Competition, § 13:1 (4^th ed. 2002).

Respondent’s <trotnixon.com> domain name is identical to Complainant’s TROT NIXON likeness. Respondent’s domain name incorporates Complainant’s name in its entirety and only deviates by the addition of the top-level domain “.com.” Because top-level domains are inconsequential when conducting an identical analysis under Policy ¶ 4(a)(i), Respondent’s domain name is identical to Complainant’s common law mark. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top-level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to submit a Response in this proceeding. Therefore, Complainant’s submission has gone unopposed and the arguments unrefuted. In the absence of a Response, the Panel is permitted to accept as true all reasonable allegations contained in the Complaint unless clearly contradicted by the evidence. Further, because Respondent has failed to submit a Response, Respondent has failed to propose any set of circumstances that could substantiate its rights or legitimate interests in the <trotnixon.com> domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance that could demonstrate any rights or legitimate interests in the domain name); see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the Complaint to be deemed true).

Respondent’s <trotnixon.com> domain name resolves to a pornographic website. Although a website containing pornographic content is not per se illegitimate, the circumstances surrounding Respondent’s registration and use of this domain name reinforce such a finding. Specifically, Respondent capitalizes on the unauthorized use of Complainant’s famous name to ensnare unsuspecting Internet users into visiting its explicit website. Respondent’s use of the disputed domain name to confuse and divert Internet users at the expense of Complainant’s reputation fails to establish rights or legitimate interests in the domain name under Policy ¶¶ 4(c)(i) or (iii). See MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where Respondent attempted to profit using Complainant’s mark by redirecting Internet traffic to its own website); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that infringing on another's well-known mark to provide a link to a pornographic site is not a legitimate or fair use).

Respondent is not authorized or licensed to make use of Complainant’s TROT NIXON common law mark in connection with its website or pornographic offerings. Moreover, the contents of the website contain no information relating to Major League Baseball or Complainant. Respondent’s WHOIS information indicates that it is known as “Lucian Kaine” and “Nunya Binness,” and not the second-level “Trot Nixon” domain. Therefore, no information suggests that Respondent is commonly known by the domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

The <trotnixon.com> domain name has been registered and used in bad faith. Specifically, Respondent seeks to capitalize on Complainant’s celebrity status by using the infringing domain name to attract Internet users to its pornographic website, absent any authorization or consent from Complainant. The content displayed on Respondent’s website allows the inference that Respondent benefits commercially from its maintenance of the website, and no evidence has been presented to the Panel that suggests a finding to the contrary. Respondent’s exploitation of Complainant’s mark for commercial gain is conduct explicitly proscribed by the Policy. Therefore, Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (use of another's well-known mark to provide a link to a pornographic site is evidence of bad faith registration and use).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <trotnixon.com> domain name be TRANSFERRED from Respondent to Complainant.

Tyrus R. Atkinson, Jr., Panelist

Dated:  May 2, 2003

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