WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vishwa Nirmala Dharma a.k.a. Sahaja Yoga v. Sahaja Yoga Ex-Members Network and SD Montford
Case No. D 2001-0467
1. The Parties
The Complainant is Vishwa Nirmala Dharma a.k.a. Sahaja Yoga, 13901 Manor Way, Lynnwood, WA 98037, United States of America.
The Respondents are Sahaja Yoga Ex-Members Network, PF William Street, Sydney, NSW 2069, Australia and SD Montford, 10 Clermont Road, Brighton BN 16 SG, United Kingdom.
2. The Domain Name and Registrar
The Domain Name is .
The Registrar is R.
3. Procedural History
The Complaint was received by WIPO by email and hard copy form on March 30, 2001. On April 6, 2001, WIPO issued a Complaint Deficiency Notification, the original Complaint having identified the first of the above-named Respondents, but not the second, who is the current registrant. The Amended Complaint ("the Complaint") was received by WIPO by email on April 11, 2001, and on April 12, 2001, in hard copy form. Extra copies of the Complaint were received by WIPO on April 20, 2001. WIPO has verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Complaint was properly notified in accordance with the Rules, paragraph 2(a). The Registrar has confirmed that ("the Domain Name") was registered through R. While SD Montford is recorded as being the current registrant, both parties have treated SD Montford as being another name for Sahaja Yoga Ex-Members Network and for the purposes of this decision, the Panel treats them as being one and the same. All references in this decision to "the Respondent" are references to the activities of Sahaja Yoga Ex-Members Network.
The Registrar has further confirmed that the Policy is applicable to the Domain Name.
On April 19, 2001, WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its Response to the Complainant and to WIPO was May 8, 2001. The Response was received by email on May 7, 2001, and in hardcopy form on May 8, 2001.
The Panel was properly constituted. The undersigned Panelists submitted Statements of Acceptance and Declarations of Impartiality and Independence.
No further submissions were received by WIPO or the Panel, as a consequence of which the date scheduled for the issuance of the Panel�s Decision is June 18, 2001.
4. Factual Background
The Complainant is an organisation which was founded on May 5, 1970. It is known as Sahaja Yoga. Sahaja Yoga as the term is used by the Complainant is not only its name, but also a method of meditation allegedly developed by the founder of the Complainant in 1970.
The Complainant seeks to teach Sahaja Yoga worldwide inter alia by way of its website.
The Respondent, as its name suggests, is an organisation comprising ex-members of the Complainant�s organisation. Its objective is to draw attention to what it sees as being very serious shortcomings of the Complainant. The Respondent registered the Domain Name on October 18, 1999.
The Complainant obtained a registration of the name SAHAJA YOGA at the United States Patent & Trade Mark Office on August 29, 2000 as a service mark in Class 41 for educational services, namely, conducting classes, workshops and seminars in the field of techniques of meditation, relaxation and self-improvement. The registration certificate is annexed to the Complaint. It indicates that first use was claimed from 1970 and first use in commerce from 1973.
Earlier this year prior to the launching of this Complaint there were exchanges of correspondence between the parties in which the Complainant demanded cancellation of the Domain Name. The Respondent refused to accede to the Complainant�s demands. The relevant factual details as set out in the complaint is as under:
That Vishwa Nirmala Dharma (Universal Pure Religion), also known as Sahaja Yoga, has been founded on May 5, 1970, by Her Holiness Shri Mataji Nirmala Devi Srivastava, the wife of a former eminent U.N. diplomat, who was the Secretary General of IMCO.
- The Complainant states that Sahaja Yoga is subject to a service mark registered on August 29, 2000 with the United States Patent and Trademark Office for educational services, namely conducting classes, workshops and seminars in the field of techniques of meditation, relaxation and self-improvement, in class 41.
- According to the Complainant, on a world-wide scale Sahaja Yoga is aiming at achieving, through the awakening of one's own residual subtle energy, called in Sanskrit "Kundalini", a complete physical, as well as emotional, psychical and spiritual inner transformation. Sahaja Yoga's new technique of spontaneous meditation is a unique answer to modern afflictions as stress, depression or psychosomatic diseases.
- Internet allows the Complainant, not only to inform about these positive inner transformation, but also to actualise it through a direct experience. This experience greatly contributes to a personal physical relaxation by reducing stress. Thus on April 10, 1997, the Complainant created the domain name "sA" .
- It is the case of the Complainant that "sA" is the Official website of Sahaja Yoga International. This website presents inter alia what is Sahaja Yoga, how meditation takes place and how is Sahaja Yoga different from other types of Yoga. It also describes briefly the experiences of "Kundalini" ("Awakening"), the "Self Realization" and the "Vibrations" that one can gain from the support of various photographs. Furthermore, a presentation of Shri Mataji Nirmala Devi, the founder of Sahaja Yoga, is made.
- That as Sahaja Yoga is subject to many seminars, workshops and programs conducted on a weekly basis around the world, "SAHAJAYOGA.ORG" website lists not less than thirty-six countries where Sahaja Yoga is practiced and through hyperlinks of which contacts may be established.
- The Complainant has also created hyperlinks and that most of the web pages of those hyperlinks are not more than an extension of SAHAJAYOGA.ORG, namely its national branches corresponding to the national websites for example ".br" for Brazil, ".canada" for Canada, "/Colombia/" for Colombia, "/finland/" for Finland, "/india/" for India, "/Ireland/ "for Ireland, "/norway/" for Norway, "/philippines/" for the Philippines, "/portugal/" for Portugal, "/sweden/" for Sweden, ".uk/" for the United Kingdom or "/usa/" for the United States.
- It is stated that through "SAHAJAYOGA.ORG" Sahaja Yoga information may be read in other languages such as Bulgarian (Bulgarski), Chinese (Zhong Wen), French (Français), German (Deutsch), Hebrew (Ivrith), Italian (Italiano), Japanese (Nippon), Portuguese (Portuguesa), Romanian (Romaneste), Russian (Ruskii), Slovakian (Slovensky), Spanish, (Español), Swedish (Sverige) and Turkish (Türkçe).
- The grievance of the Complainant is that the Respondent herein on October 18, 1999 i.e. more than eighteen months after the setting up of the Complainant's domain name "SAHAJAYOGA.ORG" created the domain name .
- According to the Complainant the alleged purpose of this website is to inform about the Sahaja Yoga organization and to report "nothing but the truth". But one shall note that it is also linked with a commercial website named "TRIPOD" which offers products for Internet homepages and more.
- The Complainant states that apart from the confusion entertained by this litigious domain name the construction of the First Respondent's website itself also tends to mislead internet users : like the official Web Site of Sahaja Yoga a photograph of Shri Mataji Nirmala Devi illustrates the welcome page; in addition, the summary of the various topics discussed under the heading "Navigate" is quite similar to the left column of the official website homepage. Moreover, the links related to "Critical Information on Sahaja Yoga in other languages" are graphically presented and organized in the same manner as the links to various countries mentioned in the Complaint.
- Another point which has been highlighted by the Complainant is that this "Ex-Members" website is totally anonymous : nowhere in said website can those Sahaja Yoga Ex-Members be identified; in addition, it flows from reading of the WHOIS database - which is to be relied upon given the First Respondent's own admission that the First Respondent's organization and administrative contact are labeled in a very vague and imprecise manner; its address is also vague in so far as it only gives the name of the main street in Sydney without giving any number; likewise, the First Respondent's telephone number is odd when bearing 7 x 7 numbers. Moreover, the First Respondent's e-mail contact is also impersonal. Lastly on the substance, it is to be observed that among the testimonies made by Ex-Members, not any single family name of individuals is mentioned.
- The Complaint further informs that under these circumstances, the Complainant - through the intermediary of its Swiss Association to which powers had been delegated wrote to the First Respondent on February 26, 2001, advising the latter that it would not tolerate any longer the use of the website which misleadingly attract visitors from the "SAHAJAYOGA.ORG" site and that a time-limit of three days was granted to Respondent to cancel the disputed domain name failing which necessary measures would be undertaken to defend the rights of the Sahaja Yoga organization.
- The Complainant received the first reply from the Respondent by e-mail dated February 28, 2001, candidly pointing out that "given that was already taken, was the obvious choice for an international non profit group whose central concern is Sahaja Yoga" and also declaring that "Sahaja Yoga has so many domain names and websites, surely you can tolerate some small measure of dissent on the Internet". The First Respondent finally concluded its Response by citing Article 19 of the Universal Declaration of Human Rights which sets out the right to freedom of opinion and expression.
- Acknowledging receipt of the First Respondent's above mentioned email, the Complainant advised the latter, both by registered letter and email dated March 1, 2001, that should the First Respondent not either transfer or cancel the domain name in dispute to the benefit of the Complainant, legal action would be undertaken before the competent authorities.
- The First Respondent answered on March 7, 2001, that it would not abandon its rights to use the domain name in dispute and that it would accept the decision to be rendered by the competent authorities.
- It is whereafter that the Complainant has preferred the present complaint.
5. Parties� Contentions
A. Complainant
- The Complainant while referring to the provisions of para 4(a) of the Policy has contended that the forum has to decide the Complaint on the basis of statement and documents submitted before it and as per the Policy.
- The administrative proceedings that are instituted under the ICANN Policy, Rules and Supplemental Rules are not opening a forum for adjudicating intricate questions of law under a given municipal law; on the contrary they aim at eliminating various forms of flagrant misuses of the principle "first come first serve" for domain names registration (see e.g. Mutuelle d�Assurance du Corps de Santé Français v. SA CHA REBK LLC, WIPO Case No. D2000-0450, p. 4).
- The Complainant seeks the benefit of the registration, on August 29, 2000, by US Patent and Trademark Office, of SAHAJA YOGA as a service mark
- As mentioned above, the Complainant SAHAJA YOGA enjoys protection of a service mark delivered by the U.S. Patent and Trademark Office on August 29, 2000. It is contended by the Complainant that should the Complainant not be considered as benefiting from a trademark protection, it is entitled, nevertheless, to invoke such common law mark protection i.e. the existence of a right to a particular domain name does not presuppose a registered trademark..
- According to the Complainant by a mere comparison it is obvious that the Domain Name of the Respondent is identical and confusingly similar to the domain name of the Complainant. Even if the domain name is separated by a dash it still remains identical.
- Accordingly, the Complainant contends that in the instant case that is identical or, at least, confusingly similar to "SAHAJA YOGA" in which it is established that the Complainant has rights within the meaning of Paragraph 4(a)(i) of the Policy.
- Going forward for proving the fulfillment of other conditions of para 4(a) of the Policy the Complainant further contends that it has not granted any license or otherwise permitted the Respondent to use its service mark or to apply for a domain name incorporating said mark. To the contrary, the Complainant urged the First Respondent to cease to use the domain name which was refused.
- The First Respondent relied on its right of freedom of opinion and expression as laid down by Article 19 of the Universal Declaration of Human Rights.
- The Complainant has placed reliance on certain decisions of the Center i.e. Bridgestone Firestone, Inc. and al. v. Jack Myers, WIPO Case No. D2000-0190; Monty and Pat Roberts, Inc. v. Bill Keith, WIPO Case No. D2000-0299; Migros Genossenschaftsbund v. Centro Consulenze Kim Paloschi, WIPO Case No. D2000-1171.
- While accepting that it may be possible to contend that criticism and commentary may amount to fair use defence while exercising right of free speech but the same is subject to conditions which, according to the Complainant, have been succinctly set out in the Monty and Pat Roberts case cited in the complaint regardless "�as to the truth or falsity of the allegations of Respondent in so far as they relate to the quality or characteristics of Complainant's services [�] the right to express one's views is not the same as the right to use another's name to identify one's self as the source of those views. One may be perfectly free to express his or her view about the quality or characteristics of the reporting of the New York Times or Time Magazine. That does not, however, translate into a right to identify one's self as the New York Times or Time Magazine" (WIPO Case No. D2000-0299, at p. 9).
- The Complainant further contends that as held in the Migros case, the Administrative Panel held that even if it "admitted that the aim of the website was to serve as a discussion forum, it is of the opinion that the exercise of the right of free speech does not require the use of Domain Name identical to the trademark of the Complainant. Respondent could have easily chosen a Domain Name which would indicate clearly to the public that the site is not Complainant's official website, but a discussion forum on Complainant's activities" (WIPO Case No. D2000-1171, at p. 5).
- The Complainant has further relied upon recent decision of the Center in the case of Women on Waves Foundation v. Chris Hoffman, WIPO Case No. D2000-1608. According to the Complainant, it has been held in this case that "whilst the Respondent is free to express his own opinion about the Complainant and its work he is not free to suggest that he is, in fact, the Complainant or somehow associated with the Complainant through the use to which he has put the Domain Name".
- Finally, in a earlier decision, a Panel, whilst acknowledging that shareholders or other interested parties had a right to voice opinions, concerns and criticism with respect to a listed company and that Internet constituted an ideal vehicle for such activities, found that the issue at hand was not as the Respondent seemed to contend, the freedom of speech and expression "but the mere choice of the domain name used to exercise this inalienable freedom of speech and expression" (Compagnie de Saint Gobain v. Com-Union Corp., WIPO Case No. D2000-0020, at p. 4); in addition, this Panel, pointing out that when registering the Domain Name the Respondent knowingly chose a name identical to the trademark of the Complainant, stated that "Respondent could have chosen a domain name adequately reflecting both the object and independent nature of its site, as evidence today in thousands of domain names" (same case).
- By using the Complainant's mark, the Respondent diverts part of Internet traffic to their own site, thereby potentially depriving the Complainant of visit by Internet users.
- Moreover, the fact that the Respondent's primary motive for establishing their website may be to criticize the Complainant does not insulate the Respondent from the fact that it is also offering, at least indirectly, products for sale at a website hyperlinked to their site : as described above under paragraph 22, "SAHAJA-YOGA.ORG" homepage is linked with a commercial website called "TRIPOD" which not only offers for sale various products in connection to the setting up of Internet homepages but also general shopping for all kind of products on sale through Internet.
- The Complainant submits, in addition, that the Respondent behaves with bad faith using a domain name of such similarity with the name of Sahaja Yoga, trying to capture potential seekers of spontaneous self realisation through Sahaja Yoga, not only leading the reader to confusion, but also giving a negative impression of Sahaja Yoga.
- That the Respondent, whoever it may be, has acted in bad faith in the registration and use of the domain name pursuant Paragraph 4(a)(iii) of the Policy and, in particular, within the scope of its Paragraph 4(b) (iii) and (iv).
B. Respondent
- While responding to the Complaint Respondent in its Response has contended that there are 116 registered gTLD domain names containing the word Sahaj or Sahaja which is the Sanskrit word for "spontaneous, natural, effortless" that has been used by third parties, spiritual and religious groups without limitation well before the Complainant decided to claim its ownership. As shown in the Encyclopedia Britannica, Sahaja Yoga is not a service mark owned by the Complainant, but the name of the religion founded by the Indian poet and mystic Kabir circa 1500. Kabir�s Sahaja Yoga was the forerunner of Sikhism as well as lesser-known Indian sects such as the Kabir Panthis and numerous Sant Mat sects such as the Radha Soamis.
- Not only is �Sahaja Yoga� used as a name for the central practice of sects like the Radha Soamis that look back to Kabir, but it is also used as a name for the central practice of some Kashmiri Shaiva sects. Mrs. Srivastava founded Sahaja Yoga after meeting Swami Muktananda, a guru of the 1200 year-old Kashmiri Shaiva tradition who referred to his method as �Sahaja Yoga�.
- The Complainant is aware of Kabir being the originator of the name Sahaja Yoga. Therefore it cannot be claimed that the choice of the Sahaja Yoga denomination is or was accidental.
- Neither can Complainant justify the use of Sahaja Yoga as a result of Mrs. Srivastava's lineage or descent from the 500-year-old tradition, as she clearly claims the "Unique Discovery" in 1970.
- Respondent is firmly of the view that religious terms cannot be trade/service marked. The validity of the service mark registered by the Complainant with the United States Patent and Trademark Office can be challenged: Sahaja (i.e. "natural") and Yoga (i.e. "union" or "yoking") are generic names devoid of distinctiveness with respect of the service mark "Sahaja Yoga" these identify. In the same manner as Hatha Yoga, Raja Yoga, Karma Yoga or Kundalini Yoga, Sahaja Yoga is a generic name that should be used freely and cannot be monopolized. For this reason, Respondent will henceforward refer to Complainant's alleged �service mark� in brackets.
- It is clear that the Complainant chose to register the �service mark� in the United States and not in India, the country of origin, in an attempt to achieve registration successfully in a country where yogic traditions are relatively unknown. Such an attempt is interpreted by the Respondent as an abuse of the United States Patent and Trademark Office. Complainant commonly advertises its services by associating the word Yoga with other sanskrit/hindi qualificative terms, Nirmala (pure) and Maha (great). Allowing such trademark abuse, would logically authorize Complainant to claim ownership of most Yoga and meditation practices.
- Regarding the reason why the Complainant decided to register Sahaja Yoga more than 30 years after its alleged beginning in 1970, it is the Respondent's opinion that such a decision was recently made in the hope of obtaining legal means to silence the newly-created website of the Sahaja Yoga Ex-Members Network. The webmaster of the Complainant's www., wrote in October 2000 "we want to assure everyone that we have started measures to protect the names we have been using and have been registering since Sahaja Yoga was started. It's really sad that we have to take action to protect the good name of Sahaja Yoga and it's aliases, but we are not going to roll over on this one!". Contrary to what the webmaster suggests, neither trade nor �service mark� on Sahaja Yoga had ever been registered prior to August 29, 2000.
- Complainant does not need another domain name reflecting its �service mark�. The table below summarizes the status of domain names owned by the Complainant (gTLDs only, Respondent has decided to spare this arbitration the longer list of country domain names).
Domain name
Owner
Status (23.04.2001)
Exhibit
Sa
Complainant
Active
Exhibit D of Complaint
S
Complainant's representative in Romania
No active website
Exhibit 10 a
S
Complainant's representative in Romania
No active website
Exhibit 10 b
S
Complainant's representative in Romania
No active website
Exhibit 10 c
S
Complainant
No active website
Exhibit 10 d
S
Complainant
No active website
Exhibit 10 e
S
Complainant's representative in Australia
No active website
Exhibit 10 f
S
Complainant's representative in Australia
No active website
Exhibit 10 g
S
Complainant's representative in Australia
No active website
Exhibit 10 h
S
Complainant's representative in Romania
No active website
Exhibit 10 i
S
Complainant's representative in the U.K.
No active website
Exhibit 10 j
S
Complainant's representative in the Caribbean
Active
Exhibit 10 k
S
Complainant's representative in Romania
No active website
Exhibit 10 l
S
Complainant's representative in Romania
No active website
Exhibit 10 m
S
Complainant's representative in Romania
No active website
Exhibit 10 n
S
Complainant's representative in Romania
No active website
Exhibit 10 o
S
Complainant's representative in Romania
No active website
Exhibit 10 p
- Out of the 16 owned domain names, only 2 domain names direct visitors to active websites. The 14 other are inactive, unused domain names. This clearly demonstrates Complainant's trivial need for an additional domain name and represents evidence of cyber monopolization of a domain name by the Complainant.
- In case Number: FA0006000094990, National Arbitration Forum, Minneapolis (Osho International Foundation v. Osho Dhyan Mandir and Atul Anand), a sole panelist ruled "To grant Complainant's request for relief would be to permit virtual monopolization on the Internet by Complainant of any domain name which includes the name of a great spiritual teacher and leader. While making no judgment on the relative merits or validity of the world's religions or spiritual movements or any leader thereof, this Arbitrator finds that permitting this would be as improper as doing the same with Christianity, Judaism, Islam, Zoroastrianism, Hinduism, Buddhism, Taoism, Confucianism, Shintoism or any of the several hundred other of the world's religions and/or spiritual movements. Neither The Lanham Act nor the ICANN Policy and Rules contemplate or intend such a result."
- Placing reliance on the above-mentioned decision the Respondent contends that it should be understood that even if the domain name is similar to Complainant's , the right to use a domain name containing the name of a religion should in no way be exclusive to the Complainant.
- The Respondent does not deem it necessary to ask permission from the Complainant to use the name of Sahaja Yoga, which existed 500 years before the Complainant decided to claim its ownership.
- The Respondent certainly never considered the disputed domain name to be essential to the manifestation of its human rights.
- The attempts by the Complainant to mislead the arbitration by dragging these proceedings into a "Human Rights in Domain-Name-Arbitration" debate is, in Respondent�s opinion, a manipulative effort to impute on the Respondent the wrong argumentation. In more familiar terms, the Complainant builds its case by making the Respondent say what the Respondent never said.
- The Respondent has again invited the attention of the Panel to the following portion of E-mail exchanges:
Complainant wrote: "As a consequence we, the Sahaja Yoga Association Switzerland ask you, the Sahaja-Yoga Ex-members Network to immediately remove all the content from you (sic) web site SAHAJA-YOGA.ORG."\
To which Respondent replied with a simple question:
"Are you disputing a domain name or our human rights? "
- It is contended by the Respondent that it should be clear to anyone reading the email exchange, that the aim of the Respondent in this simple question was to provoke the Complainant into admitting its intentions on their request "to remove all the content" from the website.
- Respondent�s domain name was not chosen to be identified as the Complainant's organization. The title of the Respondent's website, displayed in large characters, is self-explanatory and leads to no misinterpretation: "Sahaja Yoga: Facts and Warnings from Ex-Members"
- The Complainant's suggestion that the Respondent has indirect financial interest by the fact that the website is hosted by Tripod, a free web-space provider, is a far-fetch
