California judge submits insufficient evidence in domain name complaint

A California-based judge who was appointed by powerlifter-turned-California governor Arnold Schwarzenegger has failed to win control of a domain name despite claiming it was registered to induce violence against her.

Cara Hutson, of the Superior Court of San Bernardino County, complained that the domain, carahutson.com, infringed common law trademark rights in her personal name.

The judge listed several grounds in her complaint, which she filed against an individual named Ryan McSweeney at the World Intellectual Property Organization (WIPO). The case falls under the Uniform Domain Name Dispute Resolution Policy (UDRP).

Hutson said she has reason to believe the domain was registered “at the behest of a criminal defendant” in a case on which she presided. She also claimed that the defendant, who was not named, is believed to have also registered the domain richardjosefson.com, matching the name of a San Bernardino district attorney, Richard Josefson.

The judge said both domains were registered “ultimately for purpose of inducing other criminals to harm and take violent action against the district attorney, the complainant and/or their respective families”.

She added that the respondent’s “unlawful conduct has and will damage the complainant through potential physical harm at criminal hands, to the loss of profits and good will associated with the mark, as well as by damage to the complainant’s reputation and diluting the mark itself”.

But McSweeney, of Auckland, New Zealand, said he had never heard of Hutson before the complaint was filed and that Cara Hutson is the name of his sister, for whom he acquired the domain. He added that he does not own richardjosefson.com.

In analysing the case, WIPO panellist Luca Barbero said that while the UDRP does not explicitly provide standing for personal names that are not trademark-protected, it can accept personal names that are used as a trademark-like identifier in trade or commerce.

According to the UDRP, it is usually not enough to merely have a famous name or make “broad unsupported assertions regarding the use of such name in trade or commerce” in order to sufficiently demonstrate common law rights.

Barbero said that Hutson’s evidence, including that she has adjudicated approximately 10,000 criminal cases and hundreds of civil cases involving restraining orders, provided “some information” about her biography and professional career.

However, these documents and statements “are far from sufficient to prove that the complainant’s name has become a distinctive identifier of the complainant’s services”, he added.

Even if Hutson had proven common law trademark rights in her name, her evidence would have been insufficient to establish that the disputed domain was registered and used in bad faith, Barbero said. For example, there was no screenshot showing the alleged use of the domain in connection with a pay-per-click website making reference to Hutson, he explained.

In a decision dated January 11, Barbero dismissed the complaint.

This story was first published on TBO.

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