It’s not surprising that Hallmark Licensing, LLC, the company behind the iconic Hallmark brand, would want to have the Hallmark.TV domain name. In addition to owning various Hallmark-related entities, Hallmark Licensing operates the Hallmark Channel, and it uses the brand match HallmarkChannel.com domain name for this line of business. It may not need Hallmark.TV, but I am sure the company would want to own the domain name.
Hallmark Licensing, LLC opted to file a UDRP complaint to take possession of Hallmark.TV. The decision was published today, and while Hallmark Licensing prevailed, the rationale for why the company prevailed is upsetting to me.
The domain registrant listed in the decision is a person whose last name is reportedly Hallmark. Because Hallmark.TV appears to be registered under Whois privacy, Hallmark Licensing may be forgiven for not knowing the registrant’s surname before filing the UDRP.
The domain registrant (respondent in the UDRP) did not respond to the UDRP proceeding. This is unfortunate, but there have been plenty of times where a non-responsive domain registrant prevailed. In this particular case, the panelist, Debrett G. Lyons, ruled in favor of Hallmark Licensing.
While this is disappointing, some aspects of the decision upset me. In particular, the discussion about registering and using the domain name in bad faith. Here are separate excerpts from the decision that I found upsetting:
“The publicly available WhoIs information identifies of the domain name registrant as “Jarod Hallmark”. Although Respondent’s given family name corresponds with the trademark there is no corroborating evidence that Respondent might be commonly known by the disputed domain name”
Isn’t someone’s last name a big part of how they are known to other people? When someone meets our children, for example, they know my wife and I are their parents because we have the same last name and the only family in our school with the last name.
Later, the panelist wrote:
“The Panel finds registration and use in bad faith. The Panel has not been presented with any explanation for adoption of Complainant’s mark.”
Isn’t the fact that the respondent’s last name being Hallmark a good enough explanation for why the registrant would want to have this domain name?? This isn’t just the “complainant’s mark” – it is apparently the domain registrant’s last name.
Finally, the panelist wrote:
“Albeit that the disputed domain name is not being used the Panel accepts that the trademark is well-known and cannot envisage any use of the disputed domain name which would be in good faith. Accordingly, the Panel finds so-called passive holding in bad faith and so finds registration in bad faith in line with the principles first enunciated in Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).”
I would imagine a person with the last name Hallmark could use Hallmark.tv in many ways that do not infringe on the well-known Hallmark brand.
All in all, this is an upsetting UDRP decision.