ADMINISTRATIVE PANEL DECISION

1. Parties and Contested Domain Name

The Complainant is Manitoba Metis Federation Inc.. The Respondent is Terry Belhumeur.

The domain name at issue is: manitobametisfederation.com

2. Procedural History

The electronic version of the Complain form was filed on-line through eResolution’s Website on April 27, 2001. The hardcopy of the Complaint Form and annexes were received on May 1, 2001.  Payment was received on May 3, 2001.

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 essential contact information for Respondent;

-         Verify if the contested Domain Name resolved to an active Web page;

-         Verify if the Complaint was administratively compliant.

This inquiry lead the Clerk of eResolution to the following conclusions: the Registrar is Register.com, 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 confirmation and a copy of the Registration Agreement on April 27, 2001.  The requested information was received April 30, 2001. 

The Clerk 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 forwarding the Complaint to the Respondent, notifying the Complainant, the concerned Registrar and ICANN on May 4, 2001.  This date is the official commencement date of the administrative proceeding.

All the faxes were successful. 

The complaint, official notification and all the annexes were sent via registered mail with proof of service, to the respondent.  According to the Canada Post tracking system, all were delivered.

On May 22, 2001, the Respondent submitted, via eResolution Internet site, his response.  The signed version of the response was received on May 10, 2001. 

On  May 24, 2001, the Clerk’s Office contacted Anne m. Wallace, and requested that she acts as panelist in this case.

On May 24, 2001, Anne M. Wallace, accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.

On May 25, 2001, the Clerk’s Office forwarded a user name and a password to Anne M. Wallace, allowing her to access the Complaint Form, the Response Form, and the evidence through eResolution’s Automated Docket Management System.

On  May 25, 2001, the parties were notified that Anne M. Wallace had been appointed and that a decision was to be, save exceptional circumstances, handed down on June 8, 2001.

3. Factual Background

The Complainant is the Manitoba Metis Federation Inc. (herein “MMF”), a non-profit, non-share company incorporated under the laws of the Province of Manitoba on December 28, 1967. According to its Constitution, the objectives of MMF are as follows:

 -    To promote the history and culture of the Metis people and otherwise to promote the  cultural     pride of its membership.

 -    To promote the participation of its members in community, municipal, provincial, federal,   Aboriginal, and other organizations.

 -    To promote the education of its members respecting their legal, political, social and other   rights.       

 -    Generally, to promote the political, social, and economic interests of its members.

The MMF is the political representative of the Metis people of Manitoba, an aboriginal
people recognized as such pursuant to the Canadian Constitution. The MMF is organized into 7 regions in the Province of Manitoba. Each region consists of various members who have organized together in their community to form a Local. All of the given Locals in a defined area constitute the Region. The MMF is represented by a Provincial Board of Directors consisting of 21 Directors (a Vice-President and 2 other directors from each of the 7 Regions). In addition, the Chair of Manitoba Metis Women (another association) sits on the Provincial Board of Directors as does the President, who is elected by a province wide election. The current President is Mr. David Chartrand. Each of the Regional Directors are elected from their own Region. Elections are done on a secret ballot box basis.

The MMF is recognized by both the Manitoba Government and the Government of
Canada as the legitimate representative of the Metis people of Manitoba. The MMF is the signatory to a number of agreements with the Manitoba Government and the Federal Government which help provide MMF the financial resources necessary to deliver services to the Metis of Manitoba. These include employment training and the administration of various housing programs and services. The MMF has also entered into specific job training initiatives with various Manitoba employers including Maple Leaf Foods, Reimer Trucking Ltd. and has entered into a recruitment contract with the Canadian Armed Forces to recruit Metis people to serve in the Canadian Armed Forces. MMF has signed a memorandum of understanding with the Manitoba Government designed to lead to the eventual transfer of Child and Family Services for Metis Manitobans to the MMF which will assume delivery responsibility.

Currently, the MMF employs approximately 150 individuals. The consolidated financial statements for the fiscal year ending March 31, 2000 reflect annual operating revenues of approximately 11.9 million dollars. MMF has a registered membership of approximately 38,000 individuals. The MMF has incorporated a number of “arms length” non-profit, non-share corporations which are affiliated with it and help serve the needs of the Metis people of Manitoba. These include:

. Pemmican Publications Inc.
. Louis Riel Capital Corporation
. Louis Riel Institute Heritage Fund Inc.
. Manitoba Metis Community Investments Inc.
. Metis Natural Resources Development Corporation Inc.
. Community Housing Managers of Manitoba Inc.

Since the MMF was incorporated on December 28, 1967 its name has acquired and now enjoys wide spread recognition not only in the Province of Manitoba but throughout Canada both in the Aboriginal and non-Aboriginal community. The name Manitoba Metis Federation Inc. is not currently a registered trademark however, an application is pending to register same with the Trademarks Office. The application was filed on June 8, 2000.

The Respondent, Terry Belhumeur, is a resident of Manitoba. He is a member of the Manitoba Metis Federation and is the Vice-Chair of the Local in Teulon, Manitoba, which is part of the Interlake Region of the MMF. The Respondent is using the site manitobametisfederation.com to post information of a political nature and to advance his opposition to the current president and administration of the MMF. By following one link from the web site, a user ends up at the web site for Teulon Local. From that site, a link leads to the Respondent’s personal business called T.B. Outfitting and Guide Services.

Where it is necessary to review the evidence further, I will do so in the discussion and findings below.

4. Parties' Contentions

The Complainant contends that it has trademark rights in the name Manitoba Metis Federation, that the domain name at issue is identical to the Complainant’s name, that the Respondent has no rights or legitimate interest in respect of the domain name at issue and that the Respondent is using the domain name in bad faith. The Complainant requests that the domain name be transferred to the Complainant.

The Respondent contends that the Complainant has no trademark rights in the name Manitoba Metis Federation. He has held the registration for the disputed domain name since May 7, 2000 and that he is exercising his right to free speech and is offering to post the views of all Metis people across Canada on the site. He denies illegitimacy and denies bad faith.

5. Discussion and Findings

In order to prevail, the Complainant must prove the following three elements:

(1)   that the Respondent’s domain name 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 the domain name; and

(3)   the Respondent has registered the domain name and is using it in bad faith. (ICANN Policy, para. 4(a)).

With respect to the first question, the MMF has filed an application for a trademark for Manitoba Metis Federation. The application, filed June 8, 2000, is currently pending. It is clear, however, from the evidence, that the MMF has acquired common law rights in the trademark through use of the name dating back to at least until 1967 when the MMF was incorporated. Further, it is clear that the name Manitoba Metis Federation is a service mark in which the Complainant has common law rights as well. Common law rights are sufficient to establish the existence of a trademark or service mark for the purpose of these proceedings.

The Respondent’s domain name is identical to the name that identifies the Complainant and by which the Complainant is commonly known. The Respondent has not submitted any evidence to show that he is referred to or commonly known as the Manitoba Metis Federation. The fact that the Respondent is a member of the MMF and a Vice-Chair of the Teulon Local is not sufficient. Because the Respondent’s domain name is identical to the Complainant’s name, for which the Complainant has common law trade mark and service mark rights, the first of the three elements is resolved in favour of the Complainant.

Turning to the second element, the Respondent has been unable to establish a legitimate interest in the domain name. Again, the Respondent’s status within MMF is not sufficient to establish a legitimate interest. Using the criteria set out in Para. 4(c) of the ICANN Policy, there is no evidence that the Respondent was using or preparing to use the domain name or a name corresponding to the domain name in connection with the bona fide offering of goods or services. Neither has the Respondent been commonly known by the domain name within the meaning of the policy. That leaves the question of whether the Respondent is making legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.

The evidence shows that the Respondent is using the site manitobametisfederation.com to post information of a political nature to advance his opposition to the current president and administration of MMF. Initially, he was using the logo of Manitoba Metis Federation Inc. (Guns and Bison) and referred to the site as “Official Site of the Manitoba Metis Federation”. Following receipt of correspondence from counsel for MMF dated June 5, 2000, he ceased using the logo and took out the word “Official”. In his response to correspondence from counsel for the Complainant, the Respondent by e-mail of June 8, 2000, stated, « You might let your client know the site is for sale if the price is right. »

As of September 12, 2000, accessing the site brought one to « Manitoba Metis Federation News ». This implies that this is news of the MMF, when in fact it is information that is selected and published on the site by the Respondent and that is not sanctioned by the MMF. During the last year, the Respondent has continued to publish on the web site under the title « Manitoba Metis Federation News » and « Manitoba Metis Federation Updates ». Currently (as of June 5, 2001), the Respondent is using the words « Manitoba Metis Federation News ».

While the Respondent has ceased using the logo and has taken out the word “Official”, he has nevertheless demonstrated an illegitimate purpose in acting in this fashion, and the site could easily be confused by someone as being a site sponsored by the MMF. The site is not a forum for the free exchange of ideas since the Respondent controls the content of the site. Furthermore, the Respondent will not be permitted to hide behind a free speech argument in circumstances where, as here, the Respondent has set up the site with links that lead to his own personal commercial enterprise. It is clear as well that, even if the Respondent did not intend to obtain commercial gain from the site, he does intend to tarnish the trademark and service mark at issue here. Indeed, that appears to one of the purposed of the site. ICANN Policy, para. 4(c)(iii).  The second element of the test, therefore, falls in favour of the Complainant.

Turning to the issue of bad faith, I have concluded that the Respondent has registered and is using the domain name manitobametisfederation in bad faith. Evidence of bad faith can include 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 evidence, at least one reason for the Respondent having registered the name was to link the name to a web site from which he offers commercial services which he owns. There is, however, additional evidence of bad faith in this case. Mr. Belhumeur has registered the name primarily for the purpose of selling it at a commercial profit. This aim is to be achieved by using the domain name site as a forum to publish political views critical of the present MMF administration in the hope MMF will purchase the site. He has also engaged in a pattern of registering a number of domain names all of which use the name of Metis or other Aboriginal entities in the Province of Manitoba. These include the following:

Assembly of Manitoba Chiefs - assemblyofmanitobachiefs.com
Louis Riel Capital Corporation - louisrielcapitalcorporation.com
Aboriginal Council of Winnipeg - aboriginalcouncilofwinnipeg.com
Indian and Metis Friendship Centre of Winnipeg indianandmetisfriendshipcentreofwinnipeg.com.
Social Planning Council of Winnipeg - socialplanningcouncilofwinnipeg.com

The Respondent has not restricted his registrations solely to entities in the Province of Manitoba. He has also registered a domain name for the National Association of Friendship Centres (nationalassociationoffriendshipcentres.com) and has even gone so far as to register the name of a Federal Government agency Aboriginal Business Canada (aboriginalbusinesscanada.com).

The fact that the Respondent has registered the name manitobametisfederation.com for
the purpose of offering it for sale to the Manitoba Metis Federation Inc. is confirmed in his e-mail of June 8, 2000 to counsel for MMF.

He has also posted a message to the Assembly of Manitoba Chiefs on the domain name
site assemblyofmanitobachiefs.com wherein he has stated that:

“This is a message to the AMC to get in touch with me if you would like your .com site”.

Since at least October 17, 2000, accessing manitobametisfederation.com provides several
links to other websites. One link is entitled Teulon Local. This refers to the MMF Local in Teulon, Manitoba. When one follows this link, one is brought to teulon.com. which is also registered to the Respondent. The website indicates that one has reached “Home of Teulon and District Metis Association Inc.” The site, teulon.com, has several links including one referred to as T. B. Outfitting. Following that link leads to T. B. Outfitting and Guide Services which is a commercial hunting/guide business run by and operated by the Respondent. .

The use of the name manitobametisfederation.com will lead people to the link with the
Teulon Local of MMF and onto the Respondent personal business enterprise T. B. Outfitting and Guide Services. In this manner the use of manitobametisfederation.com ultimately gives rise to commercial gain. The Respondent is using the name manitobametisfederation.com to attract internet users to that site and to then lead them to his business all the while giving the impression, that somehow the MMF and Teulon and
District Metis Association Inc., either sponsor, are affiliated with, or otherwise endorse T. B. Outfitting and Guide Services.

The attempt by the Respondent to create the impression of affiliation is further
exemplified by the fact that although for many months manitobametisfederation.com displayed a logo of a wolf and moon, as at March 12, 2001 the front page had a picture of a Canada Goose, which is the same picture that one finds when accessing T.B. Outfitting and Guide Services website. A similar pattern with regard to the link to T. B. Outfitting and Guide Services is used by the Respondent at louisrielcapitalcorporation.com and aboriginalcouncilofwinnipeg.com both of which are owned by the Respodnent and both of which have direct links to T. B. Outfitting.

In Squires v. Zuccarini the Panel determined that there had been bad faith in the
registration and use of the disputed domain name. The following conclusion of the Panel is of assistance in this case:

“It would certainly appear from the circumstances, including the high volume of similar conduct, that the respondent has registered and used this and other domain names for the purpose of capitalizing upon confusion and mistakes by end-users of the web who unwittingly tap into their keyboards any variation of the correct domain names. In other words, by creating a likelihood of confusion with the complainant’s mark, the respondent can pose as the source of information that would otherwise come from the holder of the actual domain name. For these reasons, the Panel has determined that, under the definitions and requirements of the applicable policy and rules, respondent has made a bad faith registration and use of the domain name under dispute.”

This case is similar to the Squires case. The Respondent here has engaged in a pattern of registering domain names containing the names of Metis and Aboriginal organizations. His offer to sell the name if “the price is right” is a clear indication of intention to sell the site at a price higher than the out-of-pocket expenses. From the Respondent’s own submission, it is also clear that he registered and uses the domain name to prevent the MMF from using their trade mark and service mark in a corresponding domain name. Furthermore, there is certainly a pattern of conduct in this regard in terms of linkage to the Respondent’s commercial site.

I therefore find that the Respondent in this case has acted in bad faith within the meaning of the ICANN Policy.

6. Conclusion

For all the foregoing reasons, I conclude that the domain name registered by the Respondent is identical to or confusingly similar to the Complainant’s name in which the Complainant has common law trademark and service mark rights, that the Respondent has no rights or legitimate interest in the domain name, and that the Respondent’s domain name has been registered and is being used in bad faith. Accordingly, pursuant to the ICANN Policy and Rules, I direct that the registration for the domain name “manitobametisfederation.com” be transferred to the Complainant.

In making this decision, I wish to make it clear that I am not in any way suggesting that the Respondent does not have a right of free speech in relation to comments and criticisms he may wish to make with respect to  the MMF and its current president and administration. The bad faith use in a domain name in these circumstances, however, of the trademark of the MMF is not the proper forum.

7. Signature

Dated at Saskatoon, Saskatchewan, this 5^th day of June, 2001.