MyArt.com Lost in UDRP On 2nd Try

The On-line ADR Center of the Czech Arbitration Court (CAC) UDRP provider, has just handed over the domain name MyArt.com to the My-Art Company which was just formed on September 10th, 2010

The domain was subject to a previous UDRP which the complainant lost back in 2011, you can read that decision here.

In the first case the panel ruled in favor of the then domain name holder based on the fact the domain was registered in 1996 however this case was filed against a new domain owner after the domain was transferred, so an important case for all domain investors to read.

The biggest factor in this decision is the current domain holder did not respond to the complaint.

Here are the relevant facts and findings by the one member panel:

The complainant used the domain name My-Art.com “to bring together, artists who want to sell their works and consumers who desire to buy original creations.”

“Since its creation, The My-Art Company has developed and invested on its internet sale business activity. Indeed, The My-Art Company is now able to propose a big amount of choice of products and offers attractive prices without sacrificing the quality of the production.”

“For these reasons, The My-Art Company gained notoriety in France and the brand “My-art” has a reputation among French internet consumers.

In this context, the Complainant has decided to register the following trademark in France: “MY-ART”, registered on June 8th, 2010 under number 3744624, for goods and services class 9; 16; 35; 38; 40; 41.”

“This case is specific because the Complainant had already filed a complaint in the past, relating to the same domain name; this first complaint was dismissed. ”

“The new Complaint is largely similar to the first one; the main difference is that in the meantime, the domain name has been transferred. ”

The same Complainant filed a complaint in July 2011 (#100281) regarding the same domain name. This previous complaint was filed against the then-registrant, being a company registered in Portugal.

“The Panel in this first case had determined that “(…) the Complainant brings acceptable evidence of bad faith use and the Respondent did not dispute this, given that no Response was filed. But in the Panel’s view, the domain name cannot have been registered in bad faith, contrary to the Complainant’s contentions. ”

“The disputed domain name has been registered on 18 December 1996, which is more than 13 years before the trademark of the Complainant was filed (…). It is well established that that a domain name that is registered before a trade mark right has been established cannot be found to have been registered in bad faith. The registrant would not have been aware of the complainant’s rights because those rights did not then exist (…)”.

“Consequently, the then-Panel found that the Complainant had not proven that the then-Respondent registered the disputed domain name in bad faith.”

In the meantime, the domain name has been transferred to the actual registrant, an American citizen.

This complaint is largely similar to the previous one, although the respondent has changed. The fact that the Respondent is not the same is sufficient, in the Panel’s view, to consider this complaint as a new procedure, totally separate from the previous one, even if the arguments raised by the Complainant are largely similar to the first complaint.

Is the transfer of the domain name to a new registrant, a new registration? The question is important notably to assess (i) whether the Complainant’s trademark was duly registered at the moment of the registration, and (ii) bad faith at the moment of the registration.

This Panel may not agree with the Complainant when it claims that the transfer of a domain name to a third party always amount to a new registration in this regard.

The transfer may amount to a new registration, but it is not necessarily the case.

It all depends on the fact of each case.

It is to the Parties to present arguments and facts in order to explain that due to the circumstances surrounding the transfer, it should (should not) be considered as a new registration.

In this case, the Respondent kept silent, despite several attempts made by the Complainant.

The Complainant has clearly argued in its claim that in this case, the transfer should be considered as a new registration. By keeping silent, the Respondent did not take the opportunity to convince the Panel of the contrary.

The Panel therefore considers that in this case, the transfer of the disputed domain name amounts to a new registration.

The Complainant has right on the following trademark in France: “MY-ART”, registered on June 8th, 2010 under number 3744624, for goods and services class 9; 16; 35; 38; 40; 41. The Complainant has provided reasonable evidence of due registration of the TM.

The transfer was made at a moment between the first complaint (July, 2011) and today, i.e. after the registration of the complainant’s trademark (June, 2010).

A. THE DISPUTED DOMAIN NAME IS CONFUSINGLY SIMILAR TO THE COMPLAINANT’S TRADEMARK.

The litigious domain name “www.myart.com” contains the same joined words as Complainant’s trademark, without the dash between “my” and “art”. The sole difference between the litigious domain name and the trademark of the Complainant constitutes in fact, on the dash. Moreover, the litigious domain name and Complainant’s trademark cannot be distinguished phonetically.

B. THE DISPUTED DOMAIN NAME HAS BEEN REGISTERED BY THE RESPONDENT WITHOUT RIGHTS OR LEGITIMATE INTEREST IN THE NAME.

This assessment is notably based on the fact the Complainant claims (without being contradicted by the Respondent) that:

- The Complainant has not licensed or otherwise permitted the Respondent to use his brand or to apply for, or use, any domain name incorporating it;

- the litigious domain name is not used for any active web site (the website refers to an error message stating “Address not found”);

- the Respondent has never made any use of it and has not demonstrated that he made preparations to use the disputed domain name in connection with a bona fide offering goods or services.

C. THE DISPUTED DOMAIN NAME HAS BEEN REGISTERED IN BAD FAITH.

Since the transfer/new registration (sometime between 2011 and today) of the litigious domain name by the Respondent intervened after the registration of the Complainant’s trademark (2010), the Respondent was able, at the time of the transfer/registration, to be aware of the Complainant’s trademark.

This is even more the case since a decision was made by a Panel relating to this domain name a few months before this transfer.

D. THE DISPUTED DOMAIN NAME HAS BEEN USED IN BAD FAITH.

This assessment is notably based on the fact that the Complainant claims (without being contradicted by the Respondent) that:

- The domain name is not used actively (“passive holding”);

- There is no evidence that a web site or other on-line presence is in the process of being established which will use the domain name.

In addition, the lack of answer from the Respondent while the Complainant is detailed and supported by attached documents supporting it, is another indication of bad faith registration and use.
D

Luxury Brands Get Their .Luxury Domains: Bugatti; Cartier; Prada; Chopard; Dior & More

I just reviewed the zone file for .Luxury, which appears to have gotten over 400 sunrise registrations by trademark holders and many of the top luxury brands in the world got their  .luxury domain name.

Many luxury jewelry  brands including watch manufacturers, participated along with fashion designers, auto makers, and Champagne producers including Chanel, Prada, Cartier,  Chopard,  Dior,  Jimmy Choo; Versace, Harry Winston, Escada, Bugatti, Maserati, Rolls Royce, BMW, Patek, Panerai, Montblanc, Baccarat, Perrier Jouet and Krug to name a few.

I also noticed a number of brands usually not associated with the word .luxury went ahead and registered a .luxury domain anyway.

Timex.Luxury anyone?

As usual some generic words got registered under Sunrise based on a “trademark” including HappyBirthday.luxury, Lease.Luxury, Christ.Luxury, Dancer.Luxury.

Here are some of the more interesting .Luxury Sunrise registrations:

 

alexandermcqueen.luxury
alfreddunhill.luxury
amazon.luxury
anntaylor.luxury
azure.luxury
baccarat.luxury
baume.luxury
baume.luxury
baumeandmercier.luxury
blancpain.luxury
bmw.luxury
bottega-veneta.luxury
bottegaveneta.luxury
boucheron.luxury
boulle.luxury
breguet.luxury
bugatti.luxury
cabochon.luxury
captivedecartier.luxury
cartier.luxury
cartierart.luxury
cartierdamour.luxury
cartierdelune.luxury
cartiernaturellement.luxury
chanel.luxury
chateau-baccarat.luxury
chateaubaccarat.luxury
chloe.luxury
choo.luxury
chopard.luxury
christ.luxury
christiandior.luxury
crash.luxury
dancer.luxury
davinci.luxury
declaration.luxury
dodo.luxury
drmartens.luxury
dunhill.luxury
escada.luxury
excalibur.luxury
ferragamo.luxury
first.luxury
fredericchopin.luxury
geographic.luxury
gilt.luxury
godaddy.luxury
gouverneur.luxury
goyard.luxury
hampton.luxury
happybirthday.luxury
harry-winston.luxury
harrywinston.luxury
hennessy.luxury
hilfiger.luxury
iwcportugieser.luxury
jaeger-lecoultre.luxury
jaquetdroz.luxury
jeanrichard.luxury
jimmychoo.luxury
jlc.luxury
krug.luxury
la-prairie.luxury
laprairie.luxury
lease.luxury
leonardo.luxury
longchamp.luxury
lubin.luxury
luminor.luxury
marella.luxury
marinarinaldi.luxury
marinarinaldi.luxury
markxvii.luxury
maserati.luxury
montblanc.luxury
montblanclegend.luxury
montblancnightflight.luxury
montblancprofile.luxury
montblancsummit.luxury
monte-carlo.luxury
montecarlo.luxury
net-a-porter.luxury
officinepanerai.luxury
ogilvy.luxury
omega.luxury
overseas.luxury
own.luxury
panerai.luxury
pantheredecartier.luxury
parmigiani.luxury
pasha.luxury
patek.luxury
patek-philippe.luxury
paulsmith.luxury
perrierjouet.luxury
piaget.luxury
poloralphlauren.luxury
prada.luxury
ralphlauren.luxury
raymond-weil.luxury
raymondweil.luxury
redvalentino.luxury
richemont.luxury
riviera.luxury
rogerdubuis.luxury
rogervivier.luxury
rolls-roycemotorcars.luxury
rothschild.luxury
ruinart.luxury
salvatoreferragamo.luxury
santos.luxury
santosdecartier.luxury
starbucks.luxury
stellamccartney.luxury
tank.luxury
target.luxury
timex.luxury
timex.luxury
tods.luxury
tommy.luxury
topgun.luxury
tortue.luxury
tourbillon.luxury
tous.luxury
ugg.luxury
vacheronconstantin.luxury
valentino.luxury
valentinogaravani.luxury
vancleef.luxury
versace.luxury
veuveclicquot.luxury
wolford.luxury
zappos.luxury

 

 

Verisign There are 271 Million Domains In The World .Com/.Net Up 5% in 2013

VeriSign, Inc. VRSN just issued the 2013 fourth quarter Domain Name Industry Brief reporting that five million domain names were added to the Internet in the fourth quarter of 2013, bringing the total number of registered domain names to 271 million worldwide across all top-level domains (TLDs) as of Dec. 31, 2013.

The increase of five million domain names globally equates to a growth rate of 1.9% over the third quarter of 2013.

Worldwide registrations have grown by 18.5 million, or 7.3%, year over year.

The .com and .net TLDs experienced aggregate growth in the fourth quarter of 2013, reaching a combined total of approximately 127.2 million domain names in the adjusted zone for .com and .net. representing a 5% increase year over year.

New .com and .net registrations totaled 8.2 million during the fourth quarter of 2013 compared to 8.0 million in 2012

As of Dec. 31, 2013, the base of registered names in .com equaled 112 million names, while .net equaled 15.2 million names.

New .com and .net registrations totaled 8.2 million during the fourth quarter of 2013. In the fourth quarter of 2012, new .com and .net registrations totaled 8.0 million.

During the fourth quarter of 2013, Verisign’s average daily Domain Name System (DNS) query load was 82 billion across all TLDs operated by Verisign, with a peak of 100 billion. Compared to the previous quarter, the daily average increased 0.9 percent and the peak decreased 5.5 percent.

Year over year, the daily average increased 6.4 percent and the peak decreased 19.2%.

Of course none of these number reflect the new gTLD which did not launch until 2014 which has around 450,000 registrations.

Verisign reports that  47.7% of four-character domain names, over 95.3% of five-character domain names and more than 99.8% of six-character domain names are still available as of Dec. 31, 2013

Senate Majority Leader Harry Reid: “People Just Are Not Educated On How To Use The Internet”

According to FoxNews.com, Senate Majority Leader Harry Reid pegged problems with people being able to signup on Healthcare.gov, by saying people just “are not educated on how to use the Internet.”

“We have hundreds of thousands of people who tried to sign up and they didn’t get through,” Reid said during a press conference, before describing the difficulties people have with the Internet in general.

“There are some people who are not like my grandchildren who can handle everything so easily on the Internet, and these people need a little extra time. …

The example they gave us is a 63-year-old woman came into the store and said, ‘I almost got it. Every time I just about got there, it would cut me off.’

We have a lot of people just like this through no fault of the Internet, but [because] people are not educated on how to use the Internet,” he said.

 

35 Senators Demand Answers On NTIA Plan Of Giving Up Oversight of ICANN

35 U.S. Senators (all Republicans) led by John Thune (R-S.D.) and Marco Rubio (R-Fla.) sent a letter to Assistant Secretary of Commerce Larry Strickling, head of the National Telecommunications and Information Administration (NTIA), asking a lot of questions (I counted 13) on the recent announcement that NTIA intends to relinquish oversight responsibility over the Internet Assigned Numbers Authority (IANA)functions of ICANN to the global multistakeholder community.

Here is the letter that was sent, a lot of questions were asked including how can the US plan on handling over this function to some unknown group next year:

The Honorable Lawrence Strickling
Assistant Secretary for Communications and Information
National Telecommunications and Information Administration
U.S. Department of Commerce
1401 Constitution Avenue, N.W.
Washington, DC 20230

Dear Assistant Secretary Strickling:

We write concerning the recent announcement by the National Telecommunications and Information Administration (NTIA) that it intends to relinquish responsibility of the Internet Assigned Numbers Authority (IANA) functions to the global multistakeholder community.

In its announcement, NTIA also asked the Internet Corporation for Assigned Names and Numbers (ICANN) to convene stakeholders and develop a proposal to transition the role currently played by NTIA.

We strongly support the existing bottom-up, multistakeholder approach to Internet governance that has led to immense prosperity and empowerment for individuals around the world. The current approach has helped to define the open Internet, which has allowed the private sector to deliver technology and services that have changed our lives for the better.

In 2012, many of us were leaders on S. Con. Res. 50, a resolution that reinforced the U.S. government’s opposition to ceding control of the Internet to the International Telecommunications Union (ITU), an arm of the United Nations, or to any other governmental body. As you know, S. Con. Res. 50 unanimously passed both the Senate and the House of Representatives, a rare instance of bipartisan agreement on such an important topic.

In announcing the intended transition, NTIA committed that it “will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.”

We agree that any such proposal would be completely unacceptable.

Replacing NTIA’s role with another governmental organization would be disastrous, and we would vigorously oppose such a plan. We must not allow the IANA functions to fall under the control of repressive governments, America’s enemies, or unaccountable bureaucrats.

The global community of Internet stakeholders should act deliberately and transparently as it formulates a possible proposal to transition the IANA functions to a nongovernmental entity. The multistakeholder model of Internet governance and the IANA functions are far too important for this process to be rushed or to be done behind closed doors.

Because this issue is so important to the future of the Internet and for the protection of American values and interests, we request expeditious responses to the following questions and requests for information about the proposed IANA transition.

A 2000 report by the U.S. General Accounting Office stated that “it is unclear if the Department [of Commerce] has the requisite authority” to transfer control of the IANA functions to a private entity.

1. Please provide us with the Administration’s legal views and analysis on whether the United States Government can transition the IANA functions to another entity without an Act of Congress.

2. Please explain why it is in our national interest to transition the IANA functions to the “global multistakeholder community.”

You have stated that NTIA believes “the timing is right to start the transition process.”

3. Why does the Administration believe now is the appropriate time to begin the transition, and what was the specific circumstance or development that led the Administration to decide to begin the transition now?

4. What steps will NTIA take to ensure the process to develop a transition plan for the IANA functions is open and transparent?

5. Will NTIA actively participate in the global multistakeholder process to develop a transition plan for the IANA functions, or will the Administration leave the process entirely in the hands of ICANN?

6. You have stated that NTIA “will not accept a proposal that replaces NTIA’s role with a government-led or an inter-governmental solution,” but NTIA has been silent on how it will ensure the IANA functions do not end up being controlled, directly or indirectly, by a government or inter-governmental entity. What specific options are available to NTIA to prevent this from happening?

7. How can the Administration guarantee the multistakeholder organization that succeeds NTIA will not subsequently transfer the IANA functions to a government or intergovernmental organization in the future, or that such successor organization will not eventually fall under the undue influence of other governments?

8. NTIA asked ICANN to lead the transition process. However, ICANN has a potential self-interest in increasing its own autonomy and reducing its accountability to other entities. Some stakeholders have expressed concerns that ICANN may seek to control the IANA functions on its own, without oversight from anyone else. How did NTIA determine that ICANN is the appropriate entity to lead the transition process, and how will NTIA ensure that ICANN does not inappropriately control or influence the process for its own self-interest?

9. Does NTIA believe ICANN currently is sufficiently transparent and accountable in its activities, or should ICANN adopt additional transparency and accountability requirements as part of the IANA transition?

10. Is it realistic to expect that an acceptable transition plan can be developed before the IANA functions contract expires on September 30, 2015? Is there another example of a similar global stakeholder transition plan being developed and approved in just 18 months?

11. How will NTIA ultimately decide whether a proposed transition plan for IANA, developed by global stakeholders, is acceptable? What factors will NTIA use to determine if such a proposal supports and enhances the multistakeholder model; maintains the security, stability, and resiliency of the Internet Domain Name System; meets the needs and expectation of the global customers and partners of the IANA services; and maintains the openness of the Internet?

12. Will NTIA also take into account American values and interests in evaluating a proposed transition plan?

13. How?

As this process moves forward, we will conduct careful oversight on behalf of the American people to ensure that American values, American interests, and the open Internet are protected. Your detailed responses to our questions and requests for information will aid in that oversight, and we thank you in advance for your personal attention to this matter. “”

Here are the Senators who signed the letter in addition to Thune and Rubio:

Kelly Ayotte (R-N.H.)
John Barrasso (R-Wyo.)
Roy Blunt (R-Mo.)
John Boozman (R-Ark.)
Richard Burr (R-N.C.)
Saxby Chambliss (R-Ga.)
Dan Coats (R-Ind.)
Tom Coburn (R-Okla.)
Bob Corker (R-Tenn.)
John Cornyn (R-Texas)
Mike Crapo (R-Idaho)
Ted Cruz (R-Texas)
Mike Enzi (R-Wyo.)
Deb Fischer (R-Neb.)
Chuck Grassley (R-Iowa)
Orrin Hatch (R-Utah)
Dean Heller (R-Nev.)
John Hoeven (R-N.D.)
Jim Inhofe (R-Okla.)
Mike Johanns (R-Neb.)
Ron Johnson (R-Wis.)
Mark Kirk (R-Ill.)
Mike Lee (R-Utah)
John McCain (R-Ariz.)
Mitch McConnell (R-Ky.)
Jerry Moran (R-Kan.)
Lisa Murkowski (R-Alaska)
Rob Portman (R-Ohio)
Jim Risch (R-Idaho)
Pat Roberts (R-Kan.)
Tim Scott (R-S.C.)
David Vitter (R-La.)
Roger Wicker (R-Miss.).