Is EveryFamily.org confusingly similar to Everytown?
I’m having a difficult time digesting a decision in a National Arbitration Forum UDRP.
Everytown for Gun Safety Action Fund, Inc. filed the dispute against the domain EveryFamily.org. The Complainant uses the domain EveryTown.org.
Let me note at the outset that:
1. I’m sympathetic to the Complainant’s cause
2. The domain owner didn’t bother to respond to the dispute
3. It’s possible that the domain owner isn’t legit or is trying to take advantage of the Complainant.
All of that said, I don’t see how you can argue that EveryFamily.org is confusingly similar to Everytown’s mark.
The Complainant says that the EveryFamily.org domain is being used to mislead people into donating to a different group. It claims that the Respondent copied photographs and text from the Everytown.org website.
I wasn’t able to find the copied text and photographs but it’s possible they’ve been removed.
The panelist, Nicholas J.T. Smith, determined that “every” is the dominant part of the Complainant’s mark. He compared it to a case in which the ADP WORKFORCE NOW mark was determined to be confusingly similar to workforce-now.com.
These seem like entirely different levels of confusing similarity.
Smith points to section 1.15 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition:
1.15 Is the content of the website associated with a domain name relevant in determining identity or confusing similarity?
The content of the website associated with the domain name is usually disregarded by panels when assessing confusing similarity under the first element.
In some instances, panels have however taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trademark through the disputed domain name.
Such content will often also bear on assessment of the second and third elements, namely whether there may be legitimate co-existence or fair use, or an intent to create user confusion.
That’s a fair point.
I just don’t think you can argue that ‘Everytown’ and ‘EveryFamily’ are confusingly similar.
Smith ordered the domain name to be transferred.
Post link: I’m struggling with this UDRP decision
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Author: Andrew Allemann