Gossip will get you Nowhere in the UDRP

Fashion model Astrid Muñoz recently filed a UDRP Complaint with the National Arbitration Forum (NAF) to secure the transfer of the domain name AstridMunoz.com. Muñoz contended that her name has gained international recognition and earned the status of a common law trademark because of the fame that she has achieved as an international model. The Respondent disagreed with this assertion, saying that it was the joint venture partnership between Muñoz, the Respondent, and the Respondent’s business partner that actually made the “Astrid Muñoz” mark famous – this business venture, conveniently, was also named “Astrid Muñoz.”

Confused yet? So was the NAF Panel. It concluded that this peek into the parties’ shared past did not provide enough detail about their prior relationship to impact the outcome of the arbitration. Rather, the Panel found that the Respondent’s use of the domain name to promote a “tell all” book and screenplay about Munoz did not constitute a bona fide offering of goods or services or a legitimate use, and ultimately ordered that the domain be transferred to Muñoz.

Given the lack of any discovery or other ability to verify an opponent’s evidence in the UDRP, the Astrid Muñoz decision highlights the discretion allowed to panelists in deciding just how much credibility such evidence is given. Frequently, when parties have a prior relationship, a Panelist will decide that there was no bad faith by the respondent at the time the domain was registered, regardless of the current content on its website. However, here, “[t]he Panel notes that while Respondent has provided multiple affidavits to support his claim, none of the evidence or documentation appears to be professionally done or even objectively indicates the involvement of the Complainant.” To me, this subtly suggests that the Panelist felt the Respondent might be manufacturing evidence or otherwise trying to defraud the UDRP process.

Another interesting component of the decision is the fact that the Respondent claimed it has a First Amendment right to promote its tell all gossip book about the Complainant, a famous model and photographer. The Panelist rightfully held that “[w]hether Respondent may establish a website and provide some free speech protected content related to the Complainant is beyond the scope of the UDRP. The UDRP proceeding focuses on how a website is identified and free speech rights do not override trademark rights in a manner that supports a protected mark’s misappropriation or confusing misuse.” While the UDRP makes allowances for fair use, apparently the commercial sale of a gossip book does not fall within that category.