The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
The Complainant has failed to make such a prima facie case here. Although the WHOIS information for the disputed domain name identifies “oranges arecool XD” as the registrant of the disputed domain name, which the Panel finds is not similar to the domain name or mark, the Panel also notes that Respondent did not claim to be commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply). However that finding is not dispositive in this instance.
Respondent alleges, and Complainant does not dispute, the fact that the Respondent is operating an unofficial fan site at the disputed domain name. Respondent asserts that she offers Complainant’s tour dates, photographs, video clips, a fan blog, and autobiographical information about Complainant, and that her usage of the domain name is purely non-commercial. Respondent states that she does not have any sponsored links or links to third-party websites which market and sell merchandise bearing Complainant’s trademark and Complainant has not indicated that Respondent has any links besides one to Respondent’s website designer and another to a website owned by Complainant. Respondent argues that she has not profited from any of her usage of the domain name in question and is in fact directing Internet users to a website promoting Complainant through its production company. The Respondent also states that she has not posted any other links on the website, and that she is merely using the domain name to promote Complainant through a fan website, a use which is authorized under Policy ¶ 4(a)(ii).
The Panel agrees and finds that Respondent’s use of the disputed domain name in conjunction with a fan website is a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Hat tip to Techdirt for the story. Does anyone have links to other resolutions of these fan site vs performer cases? So often fans just take them down under pressure without seeing them through to a finding.