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Trademarks and Personal Names

When Mattel challenges a Mattel [Mattel, Inc. v. Gopi Mattel, FA0411000372847 (Nat. Arb. Forum February 15, 2005) (<mattel.org>)] or Mathiesen a Mathiesen [Mathiesen S.A.C. v. Allan Mathiesen, D2009-0087 (WIPO March 23, 2009) (<mathiesen.com>)] the Respondents answer to the name. But it is an easy ploy for a respondent to assume a name and not be who he says he is. Jonmor Investments, Inc. v. Martin Eckrich, FA0908001280228 (Nat. Arb. Forum October 13, 2009). There are Eckrichs, but this respondent is not one of them. This “Eckrich” did not respond. Nevertheless, because there are Eckrichs and the name is not uncommon the Complainant had to make its case that there was no known Eckrichs at theWhois address. The case also illustrates the use of candor in the these proceedings. The Complainant noted in its supplemental submission that

subsequent to filing the Complaint, it learned that the actual registrant of the disputed domain name claims to be a private person called Martin Eckrich, with an address in Germany. But the registrant’s alleged phone number is identical to that of a German conglomerate operating under the name Metro Group, located at an address very similar to that of the registrant. The web site of Metro Group contains no references to the name “Eckrich”.

However, the Complainant found a “German artist named Martin Eckrich, whose website is at <martin-eckrich.de>. But that artist has a different address and it is highly unlikely that he is the owner of the disputed domain name.” The fact that the registration record shows the registrant to be “Martin Eckrich” is irrelevant “since there is no foundation for such a claim” and there is nothing in the record to show that this “Martin Eckrich” is a real person. If the Respondent were truly an “Eckrich” he would step forward and demonstrate as much, but “[s]ince the Respondent does not contest this assertion when it might be expected to if untrue, the Panel will consider the non-response as a further indication that Complainant is correct and that Respondent lacks rights or interest in respect of the domain name.”

When the Complainant’s agent inquired about purchasing <eckrich.com> he was advised that the Respondent “does not sell any of his domains for less than six figures.” This assertion is also a factual statement that the Respondent would have been expected to contest if untrue. “In other words, since the Respondent does not contest the Complainant’s allegation that it offered the disputed domain name for sale at a price well above out-of-pocket costs when we would expect a respondent to answer if untrue, the Panel will consider that the allegation is true.” Registering a domain name for which one can claim neither a right nor a legitimate interest and offering it for sale has not only registered the disputed domain name, it has actively used it, by offering it for sale.

Levine Samuel, LLP. <researchtheworld.com>
Gerald M. Levine <udrpcommentaries.com>
E-Mail gmlevine@researchtheworld.com

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