Surreply
WORLD INTELLECTUAL PROPERTY ORGANIZATION
ARBITRATION AND MEDIATION CENTER
Mercury Radio Arts, Inc &
Glenn Beck
Complainants
v.
Disputed Domain Name: Glennbeckrapedandmurderedayo unggirlin1990.com Isaac Eiland-Hall Respondent
SURREPLY
Introduction – Neither the Complaint nor the Supplemental Filing provides any basis for finding in Complainants’ favor I.Introduction – Neither the Complaint nor the Supplemental Filing provides any basis for finding in Complainants’ favor.
On October 13, 2009, Complainant filed a Supplemental Filing. Though the Supplemental Filing added to the volume of materials for the Panel to review, it fails to provide any basis for finding in the Complainants’ favor, much like the Complaint before it. Section 4(a) of the Policy requires complainants to show trademark rights and that the domain name in question is confusingly similar to the mark; bad faith registration and use (as those terms are defined under the Policy); and a lack of a legitimate interest on the part of the Respondent. Like the Complaint, the Supplemental Filing fails to show any of the above. As described more fully below, the Complainant’s arguments fail for the following four reasons:
1.Complainant has failed to meet his burden of showing common law rights. Nothing in the two separate briefs submitted by Complainant establishes that he has any common law trademark rights to the alleged mark. 2.There Is No Confusing Similarity. Nothing in Complainant’s briefs amounts to evidence or argument, beyond bare conclusory statements, that audiences are likely to confuse Respondent’s registered domain with Complainant’s alleged mark. 3.Respondent Has A Legitimate Interest. Respondent has a legitimate interest in criticizing, mocking, and even ridiculing Glenn Beck, grounded in the First Amendment to the U.S. Constitution and hallowed by well-established free speech rights. 4.Respondent Has No Bad Faith. Protected, fair use criticism, such as the parody of Glenn Beck in Respondent’s registered domain, cannot constitute the bad faith “disruption” of a business proscribed by the Policy. “Disruption” due to internet users being diverted can be bad faith. “Disruption” because a respondent exposes a Complainant’s hypocrisy is not.
Each of those reasons, taken alone or together, is sufficient to dispense with the case. For the sake of completeness, this Sur-Reply will also address the following issues:
5.Complainant’s Acquiescence. By failing to police third party use of his alleged mark, Complainant has acquiesced to the use of the alleged mark by Respondent and others. 6.Complainant’s Defamation Claims. The UDRP is the wrong forum for Complainant’s defamation claims, which are nonetheless unavailing and incorrect. 7.Respondent’s Alleged “Subsequent Remedial Measures.” The UDRP should not weigh alleged “subsequent remedial measures” as evidence of bad faith by Respondent. 8.This Case Presents No Novel Legal Issues. Foundational principles of free speech, trademark law, and UDRP precedent fully support a finding on behalf of Respondent. 9.The Supplemental Filing Provides Further Support For Respondent.
II.The Complainant has presented no evidence of his alleged common law rights. II.The Complainant has presented no evidence of his alleged common law rights.
As detailed in the Reply to the Complaint, Complainant has not provided adequate evidence of common law rights. It is incumbent on Respondent to establish common law rights, if any. See Amsec Enterprises, L.C. v. Sharon McCall, WIPO Case No. D2001-0083 (“Complainant must prove secondary meaning”; bald claims as to length and amount of sales were “inadequate to prove any enforceable rights in the mark”). The Complaint failed to do so, and the second bite at the apple has not cured this fundamental flaw. “Without such compelling evidence proving the prior right, the Complainant may fall at the first hurdle.” Fox News Network, L.L.C. v. C&D International Ltd. and Whois Privacy Protection Service, WIPO Case No. D2004-0108.
III.The Complainant has submitted no evidence of “confusing similarity” between Respondent’s website and Complainant’s alleged mark, because there is none. III.The Complainant has submitted no evidence of “confusing similarity” between Respondent’s website and Complainant’s alleged mark, because there is none.