personal name, not a celeb..good decision by WIPO

[DNQuest.com]

http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1514.html

In this case, Complainant has provided no evidence of his rights in the Disputed Domain Name other than broad assertions that he “is known nationally and internationally by the name David Pecker and his high profile name is linked inextricably with AMI and is cited frequently by the media”, and an affidavit from AMI’s assistant general counsel that Complainant “possesses a strong common law service mark in his name by virtue of his position as being one of the leaders in the publishing industry… David Pecker’s personal fame and reputation have caused his name, as a leader in the publishing industry and as Chairman and CEO of AMI, to acquire a secondary meaning in the industry. Complainant’s name is used to promote AMI and the public understands his name as referring to AMI”. While these statements may well be true, it is nevertheless incumbent on a complainant, except in the most obvious cases, to provide evidence in support of a claim to rights in a personal name for the purposes of the Policy. Israel Harold Asper v. Communication X Inc., WIPO Case No. D2001-0540. In view of the limited supporting evidence provided in the present case, the Panel's ability to assess the merits of the claim is accordingly limited. It is also unclear to the Panel on the evidence provided whether, as required by the Policy in such cases, Mr. Pecker “has ever used his personal name for the purpose of advertising or promoting his business or for the sale of any goods or services”. Joacim Bruus-Jensen v. John Adamsen, WIPO Case No. D2004-0458.

This decision is a good one and well thought out by the panelist. There is a difference between a celebrity and the average Joe (though in this case, I would not mind making this average Joe's money). It has been argued many times here about celebs, TMs and fair usage. In this decision, the panelist covers all those aspects. But it came down to the fact that he did not use his name in commerce. This is why I always argued about celebs names being TMs, this decision affirms that and ruled that this guy is not a celeb and not afforded common law protection.

What surprises me is that Mr. Pecker attorneys did nothing to establish that he made money because of him name, IE- paid speaking engagements or other causes outside of work (which I beleive he has done). But it seems his presentation was basically a cut and paste from other filings with no true insight.

Though I like the decision, this can set a dangerous precedent where "domaineers" will start registering high profile people names in the private sector in hopes of scoring big. Another thing that caught my eye is why the Mr. Peckers attorney did not ask why that name inparticular was registered and asked what other names had the person registered since his defense is her registered it not knowing the guy. If the domaineer also registered mikepecker.com, philpecker.com, etc... and did the same thing as davidpecker.com, that would give more credibility to the credence that he didn't know the guy. If this is hte only name he registered, then I would ahve attacked that.

BTW- It seems this guy could of had his name of either $1000.00 or $1600.00 (usually it is much higher which is why I point this out), he should have just ponied up and get it over with (yeah, this is the squatters ideal situation, but makes business sense).

 

[Brett Lewis]

This was the right decision.

It's not as surprising as you might think that the complainant didn't document his claims. It happens a lot. There are a lot of attorneys who will take on a UDRP, not really knowing what they are doing, and basically flush $10,000 of their client's money (or more) down the toilet. Also, if some of these clients were better advised, they probably would never have filed their complaints in the first place.

Brett Lewis, Esq.
[email protected]
www.lewishand.com

 

[Creature]

An affidavit from Michael Antonello, assistant general counsel for AMI, states that a Google search for David Pecker’s name produces 389,000 results.

Incorrect and misleading imo.

Google search:

David Pecker = 399,000
"David Pecker" = 33,300

For this kind of search (correct me if I'm wrong!) quotation marks are necessary otherwise Google counts both words separately. Furthermore, not all of those 33,300 Google results apply to the complainant as implied in the affidavit.

 

[Dave Zan]

Looks like one David got pecked by another.

Someone wasn't giving the complainant a more "accurate" picture, granted it's
not easy to do so.