ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The complainant is The Estate of Tupac Shakur. The respondent is North American Music c/o Tolliver, Rush, Koko, Fred, Kevin.
The domain name at issue is: 2pac.com
2. Procedural History:
The electronic version of the Complaint form was filed on-line through eResolution's Website on August 25, 2000. The hardcopy of the Complaint Form was received on August 25, 2000. The choice of jurisdiction was received on August 25, 2000. Payment was received on August 30, 2000.
Upon receiving all the required information, eResolution's clerk proceeded to:
- Confirm the identity of the Registrar for the contested Domain Name;
- Verify the Registrar's Whois Database and confirm all the required contact information for Respondent;
- Verify if the contested Domain Name resolved to an active Web page;
- Verify if the Complaint was administratively compliant.
The inquiry led the Clerk's Office of eResolution to the following conclusions: the Registrar is Network Solutions, Inc., the Whois database contains all the required contact information, the contested Domain Name resolves to an active Web page and the Complaint is administratively compliant.
An email was sent to the Registrar by eResolution Clerk's Office to obtain a copy of the Registration Agreement on August 25, 2000. The requested information was received August 28, 2000.
The Clerk's Office then proceeded to send a copy of the Complaint Form and the required Cover Sheet in accordance with paragraph 2 (a) of the ICANN's Rules for Uniform Domain Name Dispute Resolution Policy.
The Clerk's Office fulfilled all its responsibilities under Paragraph 2(a) in connection with forwarding the Complaint to the Respondent on August 31, 2000. That date is the commencement date of the administrative proceeding.
On August 31, 2000, the Clerk's Office notified the Complainant, the Respondent, the concerned Registrar, and ICANN of the date of commencement of the administrative proceeding.
The Complaint form, the official notification and all the annexes were sent by Canada Post to the respondent's various addresses. According to the Canada Post receipt received by eResolution and signed by the administrative contact, it was delivered.
On August 28, 2000, September 6 and September 7, the administrative contact sent emails to the Clerk's Office requesting more information about the process.
On September 21, 2000, the Respondent still has not submitted his response.
On September 21, 2000, the Clerk's Office notified the Respondent and the Complainant of the failure of the first one to respond to the complaint. It also informed the parties that according to ICANN Rules Art.5 (ix)(e)"If a respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint"
On October 9, 2000, the Panel checked the eResolution web site and determined that no Response had been filed.
3. Parties' Contentions
Complainant contends that it owns in the trademark 2PAC for use with phonograph records and other forms of recording media featuring music; that the domain name at issue is identical to this trademark, that the respondent has no rights or legitimate interest in respect to the domain name at issue, and that the respondent registered and is using the domain name in bad faith. Respondent did not file a response to the complaint.
4. Discussion and Findings
In order to prevail, the complainant must prove the following three elements: (i) respondent's domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) respondent has no rights or legitimate interests in the domain name; and (iii) respondent has registered the domain name and is using it in bad faith. (ICANN policy, para. 4 (a)).
The Respondent has not filed a response to the Complaint. Pursuant to ICANN Rules Art.5 (ix)(e), the Panel will decide the dispute based on the Complaint.
Complainant owns U.S. Reg. No. 2,183,418 for the mark 2PAC for use with phonograph records and other forms of recording media featuring music. "2PAC" is one of the nick-names used by Tupac Shakur, the multi-platinum recording artist who was murdered in Las Vegas in 1996. Since his death, the complainant has filed for trademark registration of 2PAC for use with other goods, such as posters, calendars, books and clothing.
The respondent's domain name is identical to the trademark in which the complainant has rights, but for the .com top-level domain (TLD) locator. Such identity is sufficient to show that respondent's domain name is confusingly similar to complainant's trademark.
Because respondent has not filed a response to the complaint, the panel only has the complaint by which to address the issue of respondent's rights or legitimate interest in the domain name. There is no evidence in the record to suggest that the respondent has a right or legitimate interest in the domain name 2pac.com. Rather, the evidence shows that the respondent did not have permission from the trademark owner to register the domain name and that respondent is using the domain name to misleadingly divert customers to its web site. Accordingly, the Panel has determined that the respondent has no rights or legitimate interests in the domain name.
Turning to the issue of bad faith, the Panel concludes that the respondent has registered and is using the domain name 2pac.com in bad faith. Evidence of bad faith includes using a domain name to intentionally attract, for commercial gain, Internet users to the respondent's web site (ICANN Policy, para. 4(b)(iv).
Based on the Complaint, respondent has registered the domain name 2pac.com to direct Internet traffic to its web site located at ABCproductions.com. This web site offers merchandise for sale including t-shirts with photos of Tupac Shakur on them and compact discs of Tupac Shakur, the sale of which has not been authorized by complainant.
Typically, when Internet users wish to find the web site of a company or a particular brand when they do not know the URL, they will type in the name of the company or the brand with the extension ".com." Here, an Internet user searching for information about Tupac Shakur may type in his nickname "2PAC" and be directed to respondent's web site, believing that they had found a legitimate web site providing information and merchandise concerning Tupac Shakur. In this way, respondent is intentionally attempting to attract Internet users to his web site by using complainant's trademark for commercial gain.
For all the foregoing reasons, the Panel concludes that the domain name registered by the respondent is identical or confusingly similar to the trademark in which the complainant has rights, and that the respondent has no rights or legitimate interests in the domain name, and that the respondent's domain name has been registered and is being used in bad faith to attract Internet users to respondent's web site for commercial gain. Accordingly, pursuant to ICANN policy, paragraph 4 (i), the Panel directs that the registration for the domain name 2pac.com be transferred to the complainant.
This decision of the Administrative Panel in Case No. AF-0345 was rendered on the 9th day of October, 2000 at Chicago, IL.
(s) Kevin Trock, Esq.