Triumph International Inc. v. TAAJ ------

Complainant is Triumph International, Inc (“Complainant”), represented by !oel R
Fel"man o #reen$er% Trauri%, LLP, !eor"ia, #$A. %espondent is TAA! &&&&&&&&
(“%espondent”), Caliornia, #$A.
The domain name at issue is 'teammichael(ac)*oncom+, re"istered &ith
#oDa"",com, Inc
The undersi"ned certiies that he or she has acted independently and impartially and to
the best o his or her 'no&led"e has no 'no&n conlict in servin" as (anelist in this
(aul ). *eCicco as (anelist.
Complainant submitted a Complaint to the +ational Arbitration ,orum electronically on
April -, ./001 the +ational Arbitration ,orum received payment on April -, ./00.
2n April 3, ./00, !o*, Inc. conirmed by e-mail to the +ational Arbitration
,orum that the 'teammichael(ac)*oncom+ domain name is re"istered &ith
!o*, Inc. and that %espondent is the current re"istrant o the name.
!o*, Inc. has veriied that %espondent is bound by the !o*, Inc.
re"istration a"reement and has thereby a"reed to resolve domain disputes brou"ht by
third parties in accordance &ith ICA++4s #niorm *omain +ame *ispute %esolution
(olicy (the “(olicy”).
2n April 5, ./00, the ,orum served the Complaint and all Anne6es, includin" a 7ritten
+otice o the Complaint, settin" a deadline o April .5, ./00 by &hich %espondent could
ile a %esponse to the Complaint, via e-mail to all entities and persons listed on
%espondent4s re"istration as technical, administrative, and billin" contacts, and to
postmaster8teammichael9ac' Also on April 5, ./00, the 7ritten +otice o the
Complaint, notiyin" %espondent o the email addresses served and the deadline or a
%esponse &as transmitted to %espondent via post and a6, to all entities and persons
listed on %espondent4s re"istration as technical, administrative and billin" contacts.

A timely %esponse &as received and determined to be complete on April .:, ./00.
;o&ever, the %esponse &as received &ith a ile si<e over the 0/mb limit, thereore the
%esponse does not comply &ith ICA++ %ule 3 (a) and=or the Anne6 to the
$upplemental %ules. +ot&ithstandin" the lar"e ile si<e the (anel elects to consider the
%esponse as there is no apparent pre9udice to Complainant relatin" to the procedurally
oversi<ed ile.
Complainant4s timely Additional $ubmission &as received on )ay >, ./00.
2n )ay >, ./00 pursuant to Complainant?s re@uest to have the dispute decided by a
sin"le-member (anel, the +ational Arbitration ,orum appointed (aul ). *eCicco as
2n )ay :, ./00 the +ational Arbitration ,orum received %espondent4s timely Additional
$ubmission &hich it transmitted it to the (anel on )ay 0/, ./00.

Complainant re@uests that the domain name be transerred rom %espondent to

A. Complainant
Complainant contends as ollo&sA
Complainant Triumph o&ns the )IC;ABC JACD$2+ mar'. Triumph has used the
)IC;ABC JACD$2+ mar' since at least 0:53 in connection &ith various "oods and
services, includin", sound recordin"s and entertainment services. In addition, Triumph
has used T;B 2,,ICIAC 2+CI+B TBA) 2, T;B )IC;ABC JACD$2+ B$TATB as a
service mar' or Internet an sites since ./0/.
7hen )ichael Jac'son died on June .3, .//:, o&nership o Triumph transerred to
)ichael Jac'son4s Bstate. ,or the purpose o disseminatin" oicial inormation on
behal o )ichael Jac'son4s Bstate, Triumph uses the phrase “The 2icial 2nline Team
o the )ichael Jac'son Bstate,” throu"h an authori<ed licensee, in connection &ith its
online activities, such as social media.
Triumph4s o&nership o a ederal trademar' re"istration or )IC;ABC JACD$2+ is
suicient, under the #*%(, to establish ri"hts in the )IC;ABC JACD$2+ mar'.
%espondent4s domain name is conusin"ly similar to Triumph4s )IC;ABC JACD$2+
mar' because it contains Triumph4s entire )IC;ABC JACD$2+ mar' and diers rom
Triumph4s )IC;ABC JACD$2+ mar' only by the addition o the term “team.”
%espondent4s addition o the descriptive term “team” does not distin"uish the domain
name rom Triumph4s )IC;ABC JACD$2+ mar'. This is especially true because
Triumph uses the term “TBA)” in connection &ith its o&n online presence.
The addition o the "TC* “.com” does not distin"uish the at-issue domain name rom
Triumph4s )IC;ABC JACD$2+ mar'.
The %espondent does not have any ri"hts or le"itimate interests in the at-issue domain
name. %espondent cannot demonstrate any o the three scenarios under (olicy E-(c).
,irst, %espondent is not usin" the Inrin"in" *omain +ame or the bona fide oerin" o
"oods or services. Bona fide means made in "ood aith1 &ithout raud or deceit1 sincere1

"enuine. Thereore, the %espondent must not only be usin" the Inrin"in" *omain
+ame, %espondent must be doin" so in "ood aith and &ithout raud or deceit1
other&ise %espondent4s use is not bona fide. %espondent is usin" the Inrin"in"
*omain +ame to sell vie&in" access to court transcripts. Fecause %espondent is
collectin" money in e6chan"e or providin" a service, this is a commercial transaction.
And because %espondent is usin" Triumph4s re"istered trademar' or this commercial
transaction, the commercial use is not a bona fide oerin" o "oods or services.

$econd, %espondent is not commonly 'no&n by the name “)ichael Jac'son.” The
7;2I$ inormation sho&s that %espondent4s name is Taa9 --------. As a result,
%espondent does not have a ri"ht to use the name “)ichael Jac'son” by virtue o his or
her name. In addition, Triumph has not "ranted %espondent permission to use the
domain name. %espondent is not part o the “)ichael Jac'son team.”
Third, %espondent is not usin" the at-issue domain name or a noncommercial use.
%ather, as stated above, %espondent is currently usin" the domain name, inter alia, to
re@uest that &ebsite visitors send money to %espondent throu"h (aypal. This is a
commercial use, and the re@uest or money is prominent and pervasive throu"hout the
&ebsite. The act that %espondent has used the term “donations” does not chan"e the
commercial nature o the transaction. %espondent is not a charity.
Thus, %espondent has no ri"hts or le"itimate interests in the domain name and is
thereore not entitled to retain o&nership o the at-issue domain name in li"ht o
Triumph4s &ell-established trademar' ri"hts in the )IC;ABC JACD$2+ mar'.
%espondent re"istered and is usin" the domain name in bad aith in violation o #*%( E
-(a)(iii). #nder #*%( E -(b)(iii), i by usin" the at-issue domain name, %espondent
intentionally attempts to attract, or commercial "ain, Internet users to his or her &ebsite
by alsely su""estin" a connection to Triumph or )ichael Jac'son, this intent is
evidence o bad aith.
The “)ichael Jac'son” portion o the 'teammichael(ac)*oncom+ domain name reers
to the iconic musician, &ho is the sub9ect o the ederal trademar' applications and
re"istration o&ned by Triumph. Thereore, it is clear that &hen %espondent re"istered
the domain name, %espondent &as a&are o Triumph4s trademar' ri"hts in the
)IC;ABC JACD$2+ mar'. And %espondent continues to use the domain name, &hich
contains the entire )IC;ABC JACD$2+ mar', to attract Internet users to his or her &eb
site and to prominently promote his or her economic interest o collectin" “donations” in
e6chan"e or postin" court transcripts.

Triumph reco"ni<es %espondent4s le"al ri"ht to develop a &ebsite that posts le"al
transcripts or documents. Fut %espondent cannot use a domain name containin"
Triumph4s re"istered )IC;ABC JACD$2+ trademar' or this purpose. This is especially
true because the addition o the &ord “team” to “)ichael Jac'son” to create the domain
name 'teammichael(ac)*oncom+ urther su""ests that the at-issue domain name is
connected to Triumph and )ichael Jac'son. In other &ords,
'teammichael(ac)*oncom+ is a domain name that alsely su""ests to consumers
that the &ebsite is part o the )ichael Jac'son team. It is not.
To the e6tent that %espondent is attemptin" to pass the at-issue domain name o as a
le"itimate &ebsite by usin" Triumph4s )IC;ABC JACD$2+ trademar' and photo"raphs

and videos o )ichael Jac'son, this conduct is prohibited by #*%( E -(b)(iv) and is
evidence o %espondent4s bad-aith use and re"istration o the domain name.
%espondent4s use o the at-issue domain name su""ests to consumers that the at-issue
domain name and &eb site are ailiated &ith Triumph. They are not.
Triumph is in no &ay ailiated &ith %espondent and does not approve o his or her
operation o the Inrin"in" *omain +ame.
Triumph has established a prima facie case that %espondent re"istered and is usin" the
Inrin"in" *omain +ame in bad aith. Fecause Triumph has established ri"hts in the
)IC;ABC JACD$2+ mar' and %espondent does not, the #*%( dictates that the at-
issue domain name be transerred rom %espondent to Triumph.
F. %espondent
%espondent contends as ollo&sA
;eal The 7orld ,oundation (;T7,) 9ointly o&ns the )IC;ABC JACD$2+ mar'. They
have not iled a complaint a"ainst %espondent. ;T7 o&ns 05/ service mar's. ;T7, is
o&ned by a separate entity other than the complainant.
%espondent is not usin" 'teammichael(ac)*oncom+ in connection &ith )ichael
Jac'son4s products or services1 not sellin" or advertisin" )usic C*?s Gideos etc.
%espondent is only providin" local up to-date ne&s, reportin" on the three )ichael
Jac'son related trials. The domain name did not inrin"e on any service mar's. In a
case cited by the Complainant, respondent redirected its site to the Complainant site
and sold the same items, %espondent has not done this, and this case is completely
dierent rom the case cited.
This case is dierent than Miller Brewing Co. v. Miller Family, ,A 0/-0HH (+at. Arb.
,orum Apr. 03,.//.). In that case the e6act name &as used1 %espondent has not used
the e6act name. %espondent &anted to ac@uire Team)ichael but it &as not available,
the ne6t best option &as Team)ichaelJac'son. Gardline Surveys Ltd. v. Domain Fin.
Ltd, ,A 03>3-3 (+at. Arb. ,orum )ay .H, .//>) is dissimilar since in that case the
respondent had the e6act same name. %espondent4s &ebsite is used to inorm people
about certain court cases relevant to )ichael Jac'son.
%espondent &as (0) usin" the domain name in connection &ith a bona fide activity1 (.)
has been commonly 'no&n by the domain name1 and (>) ma'es a le"itimate
noncommercial or air use o the domain name, &ithout intent or commercial "ain.
Team)ichael is %espondent4s user name on ,aceboo' and has had 3/// riends.
%espondent4s name on T&itter is Team)ichaelHHH.
%espondent is not usin" this domain name or commercial use. 7hen this site &as
ori"inally published, the domain re"istered there had no intentions o as'in" or
contributions. Ater puttin" up a donations button, %espondent had a chan"e o heart
re"ardin" donations and stopped acceptin" them. There &as and are no “$ellin"”
services rom this site.
%espondent is not commonly 'no&n as I)ichael Jac'sonI but is reco"ni<ed as Team
)ichael in the social net&or'in" sites. As a )ichael Jac'son researcher &ho provides
up to date accurate inormation to hundreds o thousands o ans around the &orld.
%espondent has immediately placed a disclaimer on the site so that there &ill be no

Complainant is complainin" about use o IteamI )ichael Jac'son. Complainant?s
representatives are in direct contact &ith many doin" the same. They have +2T iled
complaint a"ainst them.
Complainant Triumph abandoned many o )ichael Trademar's in 0::H ri"ht up until
Au"ust .//:. $ome o them are still dead.

C. Additional $ubmissions
Complainant contends in its Additional $ubmission as ollo&sA
%espondent has not reuted Triumph4s evidence oA (0) Triumph4s ri"hts in the )IC;ABC
JACD$2+ mar'1 (.) the similarity o )IC;ABC JACD$2+ and the
'teammichael(ac)*oncom+ domain name1 (>) %espondent4s lac' o ri"hts in the
)IC;ABC JACD$2+ mar'1 and (-) %espondent4s bad-aith intent.
%espondent4s alle"ation that “;eal the 7orld ,oundation 9ointly o&ns the )IC;ABC
JACD$2+ mar'” is not only irrelevant, it is completely alse. The alle"ation is not
relevant because even i )IC;ABC JACD$2+ &as a trademar' o other entities, this
act &ould not prevent Triumph rom invo'in" its ri"hts in the mar'. The alle"ation is
alse because ;eal the 7orld ,oundation does not o&n any ri"hts in the )IC;ABC
JACD$2+ mar'.
It is the combination o “)ichael” and “Jac'son” that Triumph ob9ects to in this
proceedin", not the isolated use o “)ichael” or “)J.” T&itter user names are not sub9ect
to the (olicy. ,inally, evidence o third-party uses o a mar' does not deeat
Complainant4s ri"hts in its re"istered mar'.
#nder the (olicy, the addition o “team” to a ederally-re"istered trademar' does not
ne"ate conusin" similarity. This is because the &ord “team” is either "eneric or
descriptive, not source identiyin". Thereore, usin" “Team )ichael Jac'son” is
tantamount to usin" “)ichael Jac'son” in the eyes o consumers.
%espondent has ailed to meet her burden o sho&in" that she has le"itimate ri"hts or
interests in the 'teammichael(ac)*oncom+ domain name. Althou"h %espondent has
presented evidence that she is 'no&n as “Team)ichaelHHH” on the social net&or'in"
site T& and “Team)ichael” on the social net&or'in" site ,aceboo'.com, “Team
)ichael” and “Team)ichaelHHH” are substantially dierent than “Team )ichael
Jac'son.” %espondent admits that she is not commonly 'no&n as “)ichael Jac'son.”
%espondent ar"ues that her site is not commercial becauseA (0) she did not ori"inally
intend to as' or money1 (.) she reunded one o t&o donations she received1 and (>)
ater receivin" the Complaint, she removed re@uests or donations rom her &ebsite.
Complainant too' airmative steps to solicit payments rom &ebsite users. ,urthermore,
althou"h %espondent alle"es that she “Jor"otK to remove the donations button &hich
Jshe hasK no& removed,” pleas or “donations” remain on her &ebsite.
Fecause the site is commercial in nature and because %espondent4s commercial use o
the )IC;ABC JACD$2+ mar' is inrin"in" rather than bona fide, %espondent cannot
avail hersel o (olicy E -(c)(i) or -(c)(iii).
Bven i the (anel inds that %espondent4s site is not commercial in nature, %espondent
is still not entitled, under the (olicy, to use the domain name
'teammichael(ac)*oncom+ or a &ebsite providin" inormation about )ichael
Jac'son, re"ardless o &hether it is a criticism site (o Triumph and the Bstate) or a an

site (o )ichael Jac'son). The presence o non-commercial speech does not "ive
%espondent carte blanche to use a domain name containin" Triumph4s )IC;ABC
JACD$2+ mar'.
Triumph does not dispute %espondent4s ri"ht to operate a &ebsite that provides the type
o inormation that %espondent is providin" on 'teammichael(ac)*oncom+, provided
that %espondent does not other&ise inrin"e Triumph4s copyri"ht or trademar' ri"hts or
en"a"e in libel or deamation. %ather, Triumph disputes %espondent4s ri"ht to use
'teammichael(ac)*oncom+, a domain name that is conusin"ly similar to the
)IC;ABC JACD$2+ mar', to operate such a &ebsite.
The ri"ht to e6press one4s vie&s is not the same as the ri"ht to use another4s name to
identiy one4s sel as the source o the vie&s. 2ne may be perectly ree to e6press his
or her vie&s about the @uality or characteristics o the reportin" o the +e& Lor' Times
or Time )a"a<ine. That does not, ho&ever, translate into a ri"ht to identiy one4s sel as
the +e& Lor' Times or Time )a"a<ine.
Althou"h %espondent alle"es that she is not attemptin" to mislead or conuse Internet
users, the available evidence directly contradicts her alle"ations. %espondent is
en"a"in" in an overall scheme to mislead or conuse Internet users into believin" that
%espondent is a member o )ichael Jac'son4s “team.” This is evident rom her use o
)ichael Jac'son4s picture and the name “Team )ichael” throu"hout ,aceboo' and
T&itter to drive traic to her &ebsite.
Internet users &ill li'ely visit %espondent4s 'teammichael(ac)*oncom+ site to learn
more about the )IC;ABC JACD$2+ brand. (rominently displayed on %espondent4s
&ebsite is the phrase “J2;+ F%A+CA ;A$ J+27K %B$2%TB* T2 ATTACDI+!
)IC;ABC.” #nderneath that is a statement that “T;I$ I)A!B 2, )IC;ABC ;A* T2
FB %B)2GB* *#B T2 C2)(CAI+T FL J2;+ F%A+CAM” 7hile Internet users may
immediately reali<e that %espondent4s site is critical o John Franca and thereore a
criticism site, they &ill not immediately understand the connection bet&een the criticism
and the )IC;ABC JACD$2+ trademar'. This is especially true because the &ebsite, by
su""estin" that John Franca has attac'ed )ichael Jac'son, is creatin" consumer
conusion re"ardin" the o&nership o the )IC;ABC JACD$2+ trademar' and
%espondent4s ri"ht to use the mar'. 7hen use o a trademar' &ithin a domain name is
conusin", it ceases to be a air use.
In reality, many, i not most, site visitors &ill not immediately 'no& that John Franca is
the (resident and CB2 o Triumph (the )IC;ABC JACD$2+ trademar' o&ner) and the
Co-B6ecutor o )ichael Jac'son4s Bstate. %ather, Internet users &ill li'ely believe based
on the inormation initially provided on 'teammichael(ac)*oncom+, that the &ebsite is
connected to )ichael Jac'son and that John Franca is not connected to )ichael
Jac'son. As a result, the disclaimer &ill simply lure site visitors urther into
%espondent4s &ebsite, and help %espondent to promote her a"enda. Fecause the
connection bet&een John Franca and the )IC;ABC JACD$2+ trademar' is not &idely
'no&n, nor sel-evident, %espondent cannot avail hersel o (olicy E -(c)(iii).
In this proceedin", the bad-aith element is ine6tricably lin'ed &ith %espondent4s lac' o
ri"hts to use 'teammichael(ac)*oncom+ as a domain name or a an site or criticism
site. Fased on the content that appears on Nteammichael9ac'son.comO, %espondent
certainly re"istered her domain name based on the connection bet&een the domain
name and the &orld-amous entertainer )ichael Jac'son. #nder (olicy E -(b)(iii),

%espondent has re"istered 'teammichael(ac)*oncom+ in bad aith i she re"istered
the domain name primarily or the purpose o disruptin" the business o a competitor.
Triumph and %espondent are both in the business o providin" inormation about the
&orld-amous entertainer )ichael Jac'son. Triumph is the oicial source o this
inormation because Triumph is the o&ner o the ederally-re"istered )IC;ABC
JACD$2+ mar'. Fut %espondent re"istered and uses the
'teammichael(ac)*oncom+ domain name in the hopes that Internet users &ill use
'teammichael(ac)*oncom+ as their source o inormation about )ichael Jac'son. As
a result, %espondent4s actions are in bad aith under the (olicy.
7hile %espondent states it is not see'in" commercial "ain, %espondent4s actions must
lo"ically be assumed to beneit %espondent. Althou"h persons loo'in" or
Complainant4s commercial &ebsite &ho reach %espondent4s &ebsite &ill li'ely reali<e
that they have not reached Complainant4s &ebsite, those users may be inluenced by
%espondent4s &ebsite and decide to not "o to their intended destination o
Complainant4s &ebsite. %espondent has thus used the domain name to intentionally
attract users to its &ebsite by creatin" a li'elihood o conusion &ith Complainant4s
mar's to the commercial detriment o Complainant. Accordin"ly, the (anel should ind
that %espondent4s re"istration and use o the domain name to be in bad aith. Bven i
%espondent is not see'in" commercial "ain throu"h her &ebsite, she is tryin" to attract
users to her &ebsite by usin" a domain name that communicates association &ith
)ichael Jac'son. Thereore, %espondent4s use o the domain name is a bad-aith use.
(anels have consistently held that disclaimers similar to %espondent4s disclaimer do not
ne"ate bad aith.

%espondent contends in her Additional $ubmission as ollo&sA
)any users on t&itter have the e6act name )ichael Jac'son as domain names.
%espondent is not oerin" the e6act same products as Complainant but oers a ,%BB
;eal the 7orld ,oundation is very much related to the present ;eal the 7orld
,oundation, and )ichael Jac'son trademar's. ;eal the 7orld ,oundations has o&ned
these mar's much lon"er then claimant, and have no problem &ith %espondent4s use o
the name Team)ichaelJac'son.
%espondent4s &or' is related to )ichael Jac'son. This is evident by her ac@uirin" the
domain name 'teammichael(ac)*on,com+. %espondent is “Team)ichaelJac'son”
and has many causes dedicated to )ichael. %espondent is team )ichael.

Complainant ha* ri%ht* in the at&i**ue "omain name $ecau*e o0 it* re%i*tration*
1ith the Unite" State* Patent an" Tra"emar) O00ice
The "omain 1a* re%i*tere" *u$*e2uent to the Complainant ha3in% "emon*trate"
ri%ht* in the "omain name
Re*pon"ent4* 1e$*ite re0erence" $, the at&i**ue "omain name i* not commercial
in nature
The at&i**ue 1e$*ite ha* not $een *ho1n to $e ille%itimate in character

There ha* $een no con3incin% *ho1in% that Re*pon"ent ha" or ha* an, intent to
"irect internet tra00ic a1a, 0rom Complainant, "i*rupt complainant4* $u*ine**, or
other1i*e cau*e harm to Complainant4* tra"emar)

(ara"raph 03(a) o the %ules instructs this (anel to Idecide a complaint on the basis o
the statements and documents submitted in accordance &ith the (olicy, these %ules
and any rules and principles o la& that it deems applicable.I
(ara"raph -(a) o the (olicy re@uires that Complainant must prove each o the ollo&in"
three elements to obtain an order that a domain name should be cancelled or
(0) the domain name re"istered by %espondent is identical or conusin"ly similar
to a trademar' or service mar' in &hich Complainant has ri"hts1 and
(.) %espondent has no ri"hts or le"itimate interests in respect o the domain
name1 and
(>) the domain name has been re"istered and is bein" used in bad aith.

I"entical an"5or Con0u*in%l, Similar
The at-issue domain name is conusin"ly similar to a trademar' in &hich Complainant
has ri"hts.
Complainant provides proo o numerous trademar' re"istrations &ith the #nited $tates
(atent and Trademar' 2ice (“#$(T2”) or its )IC;ABC JACD$2+ mar' (e.g., %e".
+o. 0,:/5,./: issued Au"ust 0, 0::3). Thereby, Complainant demonstrates that it has
ri"hts in a mar' pursuant to (olicy E(a)(i). See Miller Brewing Co. v. Miller Family, ,A
0/-0HH (+at. Arb. ,orum Apr. 03, .//.) (indin" that the complainant had established
ri"hts to the )ICCB% TI)B mar' throu"h its ederal trademar' re"istrations)1 see also
Trip etwor! "nc. v. #lviera, ,A :0-:-> (+at. Arb. ,orum )ar. .H, .//H) (indin" that the
complainant4s ederal trademar' re"istrations or the C;BA(TICDBT$ and
C;BA(TICDBT$.C2) mar's &ere ade@uate to establish its ri"hts in the mar' pursuant
to (olicy E -(a)(i)).
The at-issue domain name is conusin"ly similar to Complainant4s mar' because the
domain name contains Complainant4s entire )IC;ABC JACD$2+ mar' appended to
the term TBA). The addition o the term TBA) is insuicient to distin"uish the domain
name rom the Complainant4s )IC;ABC JACD$2+ mar' or the purposes o (olicy
E-(a)(i). See $.S. ews % &orld 'eport( "nc. v. )*ong+i, ,A :0H/H/ (+at. Arb. ,orum
Apr. :, .//H) (“Blimination o punctuation and the space bet&een the &ords o
Complainant4s mar', as &ell as the addition o a "TC* does not suiciently distin"uish
the disputed domain name rom the mar' pursuant to (olicy E -(a)(i).”) see also #rt*ur
Guinness Son % Co. ,Dublin- Ltd. v. .ealy/B0ST., *.//0-//.P (7I(2 )ar. .>, .//0)
(indin" conusin" similarity &here the domain name in dispute contains the identical
mar' o the complainant combined &ith a "eneric &ord or term)1

Ri%ht* or Le%itimate Intere*t*
%espondent demonstrates ri"hts or interest in respect o the at-issue domain name.

Complainant must irst ma'e a prima facie case that %espondent lac's ri"hts and
le"itimate interests in the disputed domain name under (olicy E -(a)(ii) and then the
burden, in eect, shits to %espondent to sho& that she does have ri"hts or le"itimate
interests. See .anna1Barbera 2rods.( "nc. v. 3ntm4t Commentaries, ,A H-05.5 (+at.
Arb. ,orum Au". 05, .//P). Complainant contends that %espondent is not commonly
'no&n by the 'teammichael(ac)*on+ domain name. 7;2I$ inormation identiies
%espondent as an entity other than TBA) )IC;ABC JACD$2+. ,urthermore,
%espondent is not authori<ed to re"ister or use Complainant4s )IC;ABC JACD$2+
mar'. See Tercent "nc. v. Lee 5i, ,A 0>:H./ (+at. Arb. ,orum ,eb. 0/, .//>) (statin"
“nothin" in %espondent4s 7;2I$ inormation implies that %espondent is Qcommonly
'no&n by4 the disputed domain name” as one actor in determinin" that (olicy E -(c)(ii)
does not apply)1 see also Braun Corp. v. Loney, ,A P::P3. (+at. Arb. ,orum July H,
.//P) (concludin" that the respondent &as not commonly 'no&n by the disputed
domain names &here the 7;2I$ inormation, as &ell as all other inormation in the
record, "ave no indication that the respondent &as commonly 'no&n by the disputed
domain names, and the complainant had not authori<ed the respondent to re"ister a
domain name containin" its re"istered mar'). Thereore, Complainant satisies its sli"ht
initial burden re"ardin" %espondent4s lac' o ri"hts and interests in the disputed domain
Althou"h %espondent su""ests that she is commonly 'no&n by the domain name in her
Additional $ubmission, in her %esponse she ma'es reerenced to the act that she is
commonly 'no&n as “TBA) )IC;ABC” and that the )IC;ABC bein" reerenced is
)ichael Jac'son. Bven thou"h the )IC;ABC in the middle o TBA) and dot C2) may
have been intended to reer to )IC;ABC JACD$2+, the t&o phrases are not e@uivalent
or the purpose o the (2CICL. There is thus no convincin" evidence in the record,
&hich mi"ht lead the (anel to hold that %espondent &as 'no&n by the name TBA)
)IC;ABC JACD$2+ prior to her re"istration and use o the at-issue domain name. As
such (olicy E-(c)(ii) is inapplicable.
The (anel ne6t considers that applicability o (olicy E-(c)(iii) as a mechanism or
demonstratin" ri"hts and interests in respect o the domain name. #nder para"raph -(c)
(iii) a respondent demonstrates ri"hts in the domain name upon a sho&in" thatA
(iii) J%espondent isK ma'in" a le%itimate noncommercial or air use o
the domain name, 1ithout intent 0or commercial %ain to mi*lea"in%l,
"i3ert con*umer* or to tarni*h the tra"emar) or service mar' at issue.
(olicy E-(c)(iii) (emphasis added)
Complainant ar"ues that %espondent4s at-issue &ebsite is commercial and so (olicy
E-(c)(iii) does not apply. Complainant4s assertion is "rounded solely because
%espondent has, at times durin" the pendency o her &ebsite, re@uested donations.
Accordin" to Complainant this practice is suicient to characteri<e the &ebsite as
commercial or the purposes o the (olicy and since the &ebsite is commercial (olicy
E-(c)(iii) does not apply.
2n the other hand, %espondent asserts, and Complainant concurs, that the &ebsite
oers Court documents in connection &ith three trials relatin" to )ichael Jac'son4s
estate and does so &ithout char"e. %espondent admits that she has as'ed or
donations to assist &ith her out o poc'et costs, but says she no lon"er as's or

donations. %espondent states that she is not ma'in" commercial use o the
'teammichael(ac)*oncom+ domain name.
%eceivin" donations is not commonly understood to be a touchstone or commercial
activity. Indeed, i such &ere the case then every human endeavor &here one voluntary
contributes (or donates) to the direct beneit o another &ould be considered
commercial. #nder Complainant4s broadly encompassin" deinition o commercial the
implication arises that i any beneit is received, the beneited activity related to the
beneiciary is commercial. #nder this vie&, to ma'e an e6treme e6ample or illustration,
an accident victim4s re@uest or help rom a passerby renders the accident a commercial
activity. $uch a deinition o “commercial” &ould, as a practical matter, render the term
The (anel thus applies the more common deinition o “commercial” meanin" as havin"
to do &ith commerce, &here commerce is the e6chan"e o "oods, production or
property o any 'ind1 the buyin" sellin" or e6chan"e o articles, to the instant
proceedin". See Blac!6s Law Dictionary (3th), pp. .--, .-3. %eceivin" or solicitin"
donations, &ithout more, is not consistent &ith this deinition.
The record sho&s that the chie emphasis o %espondent4s &ebsite is not to ma'e a
proit or other&ise to en"a"e in commerce but rather to ma'e available ree o char"e
&hat %espondent believes to be interestin" documents re"ardin" )ichael Jac'son, in
particularly documents concernin" several )ichael Jac'son related liti"ations.
%espondent4s havin" once solicited donations does not ma'e %espondent4s use o the
domain name commercial. %espondent4s motivation appears to be out o her love or
the pop icon rather than or any pecuniary "ain. There i* nothin% el*e in the recor"
that mi%ht lea" the Panel to conclu"e that the at&i**ue 1e$*ite i* a commercial
en"ea3or rather than *impl, the mani0e*tation o0 a 0an reportin% 1hat *he 0eel* i*
rele3ant an" ne1*1orth, re%ar"in% her i"ol
Complainant asserts in its Additional $ubmission that even i the at-issue &ebsite is
non-commercial %espondent, in re"isterin" and usin" the domain name, intended to
misleadin"ly divert consumers and to tarnish Complainant4s trademar'. The (anel
disa"rees. %espondent believably e6plains her motivation or re"isterin" the domain
name and creatin" her &ebsite. And &hile some 'teammichael(ac)*oncom+ &ebsite
visitors mi"ht be initially conused as to the &ebsite4s source or sponsorship, there has
been no sho&in" o any si"niicant actual conusion or the li'elihood o such.

Any public conusion re"ardin" the at-issue &ebsite that is above the bac'"round count
o the "eneral source conusion that e6ists in the normal course o bro&sin" the Internet
is hypothetical. Indeed, it may be air to say that at least some
'teammichael(ac)*oncom+ visitors are li'ely to be initially conused because they
e6pected that the site &ould relate to )ichael Jac'son the medical doctor, or )ichael
Jac'son the C(A, but that conusion or conusion &ith the pop icon )ichael Jac'son
does not indicate that it &as %espondent4s desi"n to cause such conusion or mislead
Internet users. )oreover as discussed above, there is no sho&in" that %espondent
intended to capitali<e on any potential conusion bet&een her domain name and
Complainant4s mar'. Althou"h the (anel cannot 'no& &hat %espondent actually
intended, there does not seem to be any convincin" maniestations o ill intent &hen
considerin" the totality o the record. 7hile &e may be tempted to impute ill intent rom

the act o the domain name4s re"istration and similarity o the mar' &ithout more, in
li"ht o the underlyin" descriptive nature o the mar' and the domain name &e &ould be
speculatin" in doin" so.
The (anel thus inds or the purposes o (olicy E-(c)(iii) that there is le"itimate non-
commercial use o the 'teammichael(ac)*oncom+ domain name and that there &as
and is no intent by %espondent to divert Complainant4s customers or &eb traic, or to
tarnish its mar'. $ince the speciic conditions set out under (olicy E-(c)(iii) are sho&n to
be present, %espondent demonstrates that she has le"itimate ri"hts and interest in the
domain name pursuant to (olicy E-(c)(iii). Ba7a Marine Corp. v. &*eeler Tec*s.( "nc., ,A
:P:3- (+at. Arb. ,orum )ay 0H, .//0) (indin" that the respondent has ri"hts and
le"itimate interests in the domain name &here the respondent made a non-commercial
use o the Nba9aboats.comO domain name.).

Re%i*tration an" U*e in Ba" Faith
;avin" determined that %espondent has ri"hts in the 'teammichael(ac)*oncom+
domain name the issue o &hether or not the domain name &as re"istered and used in
bad aith is moot. Complainant correctly points out that the (olicy4s “bad-aith element is
ine6tricably lin'ed &ith %espondent4s lac' o ri"hts to use 'teammichael(ac)*oncom+
as a domain name or a an site or criticism site.” Thereore havin" ound that
%espondent has ri"hts and interest to use the domain name in the manner that she has
used it to-date, the (anel need not independently discuss the issue o bad aith
re"istration and use. See Loc!*eed Martin Corp. v. S!un!wor8 Custom Cycle, *.//--
/5.- (7I(2 Jan. 05, .//3) (indin" that the issue o bad aith re"istration and use &as
moot once the panel ound the respondent had ri"hts or le"itimate interests in the
disputed domain name)1 see also 9anguard Group "nc. v. "nvestors Fast Trac!( ,A
5P>.3H (+at. Arb. ,orum Jan. 05, .//H) (“Fecause %espondent has ri"hts and
le"itimate interests in the disputed domain name, his re"istration is not in bad aith.”).

;avin" ailed to establish all three elements re@uired under the ICA++ (olicy, the (anel
concludes that relie shall be DENIED.

Accordin"ly, it is 2rdered that the 'teammichael(ac)*oncom+ domain name REMAIN
6IT- %espondent.

(aul ). *eCicco, (anelist
*atedA )ay 0H, ./00

Sign up to vote on this title
UsefulNot useful