Posted on 07/31/2002 8:54:52 AM PDT by Trailer Trash
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| Split Panel Denies TedTurner.com Case Revised July 18, 2002, 5:15 pm By Patrick L. Jones WASHINGTON, DC- According to a three-member panel decision released by WIPO today, media mogul Ted Turner lost his UDRP case against the registrant of TedTurner.com. While the Panel agreed that the domain name had been registered in bad faith, it stated that Turner did not have common law rights in his name as a trademark. The Panel cited to the recent Jerry Falwell decision and the Report of the Second WIPO Internet Domain Name Process in finding that Turner's name had not acquired sufficient secondary meaning to qualify as a common law trademark. The majority concluded, finding that "this is just another in a line of cases where a domain name registrant has sought to capitalize on the fame and reputation of an internationally well-known person. Unfortunately, the Policy does not give Mr. Turner or TTFP a remedy in this case. They may have some remedy in a national court." The case is cited as R.E. 'Ted' Turner and Ted Turner Film Properties, LLC v. Mazen Fahmi, WIPO Case D2002-0251 (July 4, 2002). But read the Barry Diller case and panelist Richard W. Page's dissent:
Forbes ranks Ted Turner as one of the most famous American media tycoons in the United States, in the same list as Microsoft founder Bill Gates, Oprah Winfrey, Martha Stewart, STAR WARS™ creator George Lucas and Ross Perot. Turner is also ranked 25 in the annual Forbes 400 Wealthiest Americans List. According to Forbes, he is America's largest private landowner (1.75 million acres), won the America's Cup in 1977, owns the Major League Baseball Atlanta Braves and Turner Field, the NBA Atlanta Hawks, NHL Atlanta Thrashers, was married to Jane Fonda, founded CNN, the Turner Broadcasting System (and several other cable networks, such as TBS, TNT, Turner South, Turner Classic Movies), donated $1 billion to the United Nations (see the BBC article from Dec. 2000), the list goes on and on. Arguably, Turner has changed the way Americans view cable and television. Turner appears to have established clear common law trademark rights in his name. The UDRP does provide some remedy to celebrities and personalities who can establish common law rights. See the Dan Marino, Julia Roberts and Vince Lombardi cases, among others. The majority Panel cited to Asper v. Communication X as precedent in denying Turner's case. Israel "Izzy" Asper, a Canadian businessman, is no Ted Turner. Turner has been a "sports personality" (winning the America's Cup qualifies, as well as creating the Goodwill Games and owning three sports teams), an actor (he has appeared in cameo roles in movies, such as 1993's Gettysburg), and a famous businessperson (see above). How was this case any different than the many filed by Donald Trump? Did Turner choose the wrong forum to bring his UDRP case or wrongly proceed with a three-member panel? The case might have reached a different result with a single panelist from either WIPO or the National Arbitration Forum. At least if panelist Page had been the sole arbitrator, the result would have been different. This case is destined to be re-filed as another UDRP complaint or an action in federal court under the Anticybersquatting Consumer Protection Act. Turner is likely to win the domain name in one of these forums.
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