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.
Mike says
The last page saved in Wayback Machine is in 2011 ,some 9 years ago
https://web.archive.org/web/20110704084101/http://www.everyfamily.org/
Mike says
And this from Cache
https://webcache.googleusercontent.com/search?q=cache:DRGhQKPAoEMJ:https://everyfamily.org/+&cd=1&hl=en&ct=clnk&gl=uk
Andrew Allemann says
The one from Google cache is the same as you can access today.
Nick says
I can’t find any sign that EveryFamily.org is a real charity. Maybe was just some guy collecting donations for himself
LaughingBoy says
Ok, Nick, but that’s besides the point.
Does the fact that EveryFamily.org could be a fraudulent charity make it Ok to use the UDRP process to hijack the domain?
Are you denying that EveryFamily is not confusingly similar to EveryTown when it clearly appears they are not?
Please expand further beyond your point.
Nick says
A guy running a fraudulent charity would deserve that and also a beat down with a baseball bat. The beat down with a baseball bat would also be wrong in the law’s eyes. So my point is I just don’t care about the loss in a case like this.
LaughingBoy says
Yeah, but Nick, what you’re not realizing is that this abuse of the UDRP process creates a bad precedent for other domain owners which is why this is the wrong process for resolving this kind of issue.
The right process would likely be a DMCA claim or legal proceeding.
And also, don’t assume that the domain owner won’t challenge this UDRP abuse in court because if this get’s in front of a judge, he will absolutely overturn this clear abuse of the UDRP here and likely even award Reverse Hijacking damages of up to $100,000 plus attorney’s fees.
Now do you get it?
Steve says
This was an “ends-justifies-the-means” decision.
The two domains are not confusingly similar.
This was a copyright case, pure and simple.
John says
Bad unjust decision used to hijack a domain. No need to even look at the alleged “reasoning.” The domains are obviously in no way confusingly similar to any honest reasonable person. Probably not worth it, otherwise sue until the cows come home.
snoopy1267 says
This sounds like a bad decision.
“The panelist, Nicholas J.T. Smith, determined that “every” is the dominant part of the Complainant’s mark.”
That is a very doubtful argument. This wasn’t an appropriate case for a UDRP, should have gone to court.
John Berryhill says
“I just don’t think you can argue that ‘Everytown’ and ‘EveryFamily’ are confusingly similar.”
Then explain why it was similar enough for the Respondent to impersonate the Complainant using that domain name?
The Respondent’s behavior can be taken as what is called an “admission by conduct” that they are similar, despite their facial dissimilarity.
Try this example:
I register “DomainNameWeirdStuff” and copy DomainNameWire.
Now, I don’t think anyone would necessarily believe that “weird stuff” is very similar to “wired”.
The problem is explaining away what my own behavior says about whether I think they are confusingly similar. Obviously, if I’m using DomainNameWeirdStuff to impersonate you, then whether or not some third party thinks there is confusing similarity, the unrefuted fact of the matter is that my own behavior is premised on my belief that they are close enough to BE confused.
To put it another way, nobody had to “argue that ‘Everytown’ and ‘EveryFamily’ are confusingly similar” because the entire point of the Respondent’s conduct was premised on the Respondent’s OWN obvious and implicitly admitted belief demonstrated by such conduct, that the Respondent itself considered them to be confusingly similar enough.
That’s not an unusual principle.
Try this one on for size:
I pick up an unloaded revolver which I mistakenly believe to be loaded. I point the gun at your head, cock the hammer, and pull the trigger, fully intended to shoot you to death.
Now, it is impossible for me to shoot you to death with an unloaded gun. But, in your opinion, have I committed attempted murder?
https://casetext.com/case/state-v-damms
So, the basic problem here is that, whatever we might think of the lack of confusing similarity here, it is obvious that the Respondent INTENDED the domain name to be confusingly similar, which can be taken as an admission by the Respondent that it was.
I certainly get why people have problems with this decision. But there is a pervasive and incorrect belief that adjudicating UDRP disputes requires a panelist to see the trees and ignore the forest. The larger picture here is the undeniable reality that the Respondent fully intended the domain name to be confused with that of the Complainant, and the Respondent’s conduct was designed to capitalize on that intended confusion.
Sandra says
John, while I see where you are coming from, I think the content of the web site should be handled under the “bad fait” section.
In the WIPO Panel overview here:
https://www.wipo.int/amc/en/domains/search/overview3.0/#item115
it clearly says:
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.
DUH says
Still doesn’t justify this UDRP (which is the topic at hand). Other legal measures should have been taken in this case. A frightening precedent has been set with this one.
LaughingBoy says
I fully agree.
The UDRP is intended for clear-cut cases of cybersquatting, not for this.
Observer says
Hey John, so what you’re essentially saying is that the UDRP is some kind of court now, huh?
Alan Built says
I wouldn’t confuse weird stuff with wired any day. Just weird, yes.
Alan Built says
Makes you wonder if a simple response from the defendant would have made a difference?