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Archived updates for Friday, February 03, 2006

Hormel's Spamarama(.com) Jamma

Billed as "The World Famous Pandemonious Potted Pork Party!" where the unexpected, the ridiculous, and/or the disgusting are always likely to happen, Austin, Texas's Spamarama Festival started in 1976 when Dick Terry observed that anybody can cook chili. "Now if someone could make SPAM® edible, that would be a challenge."

It was not until 1994, after numerous cook-offs, that Hormel entered into a license agreement with Dick's cohort and self-proclaimed "Potentate of Potted Pork Parties," David Arnsberger, to use Hormel's registered SPAMARAMA trademarks in connection with the annual festival held each year around April Fool's Day. However, in the spring of 2004, Hormel learned that "The Wizard of Austin" and co-author of "SPAMARAMA: the Cookbook," John Booher, assumed the responsibilities for the yearly festival and decided to terminate the trademark license in July 2005. Four months later Hormel filed its UDRP Complaint for the spamarama.com domain name.

But Beatrice Onica Jarka, who decided NAF Claim Number FA0511000602996 for the rights to the www.spamarama.com domain name on January 12, 2006, would not give Hormel the domain name. According to her,

The source of the dispute is the termination of the 1994 license agreement
concluded between the Hormel Foods Corporation and David and Sharon Arnsberger. Complainant’s reasoning in explaining Respondent’s the lack of rights or
legitimate interests in the disputed domain name refers explicitly and solely to
the fact that the rights to use the disputed domain name by Respondent, if any,
were terminated when the 1994 license agreement was terminated for material
breach.

The valid termination of said agreement could be questioned at least, from the point of view of the validity of the termination letters, which apparently are signed by a different company than that which signed the license agreement.

Nevertheless, it is not for this Panel to decide on such an issue under the administrative procedure under the Policy. The Policy is designed to deal with cybersquatting and not with the resolution of factually complex and legally complex contractual and/or trademark disputes. See Rudolf Hensel GmbH v. Hensotherm AB, D2002-0634 (WIPO August 31, 2002); Discover New England v. Avanti Group, Inc., FA 123886 (Nat. Arb. Forum Nov. 6, 2002).

In addition, there is also the issue Mr. Booher’s copyright as the co-author of SPAMARAMA Cookbook to publicly perform and display the copyrighted work which might justify rights or legitimate interests in having a registered domain name with the same title as the cookbook title. Whether the copyright is covered by the trademark license is again, in the Panel’s opinion an issue which is outside the Policy’s scope.

Finally the use of the disputed domain name by Respondent for more than eight years, and the multiple connections existing on the internet to the website under may also justify rights and interest in using the disputed domain name.

Registration and Use in Bad Faith

The disputed domain name has, since 1998, hosted the website of the SPAMARAMA Festival. It is hard to believe that the Hormel Foods companies have not known of the website’s existence and the owner of the website.

From the facts and evidences presented in the Complaint, it can be inferred only that the three Hormel companies have known that the website under the disputed domain name has been existing and it has been promoting the SPAMARAMA Festival, the SPAMARAMA Cookbook and the SPAM products.

In addition the existence of the legal disclaimer on the first page of the website under the disputed domain name is further proof of lack of bad faith in registering the disputed domain name.

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. Accordingly, it is ordered that the domain name remains with Respondent.

Anyone with information on Austin's Spamarama Fesitval for 2006, please leave a comment below.
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2 Comments:

Anonymous erwin said...

I posted an entry about the 06 festival in my blog, here:

http://austinmash.com/blog/lining-up-for-spam/

April 04, 2006 6:58 PM  
Anonymous Anonymous said...

^^Thanks!!

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April 07, 2009 3:40 AM  

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