JUDGEMENT
from WIPO Arbitration and Mediation Center

Excerpts from a recent judgement which dismissed the Complaint of the Sahaja Yoga organization against a group of its ex-members, who had taken as a domain name something very similar to that of the main org. Included are the points made by Respondent and most of the terms of the judgement. Paragraphs in navy blue contain arguments hinging on peculiar weaknesses of Complainant's case deemed not to be relevant in general to similar cases. Note the reliance on the precedent in blue from last year of osho.com's failed complaint against oshoworld.com. 

Another small blow for religious freedom!

Respondent's arguments:

- 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.sahajayoga.org, 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
[A list of similar domains owned but mostly not used by the Complainant]

- 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 <sahaja-yoga.org> is similar to Complainant's sahajayoga.org, 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 sahaja-yoga.org 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 sahaja-yoga.org website is hosted by Tripod, a free web-space provider, is a far-fetched and altogether weak argument. In contradiction to the Complainant's statements, Tripod's banner only advertises free-web space and its own presence on the Web. In opposition to the Complainant's statements made in the complaint, the web provider's banner makes no mention of products or services for sale. By holding such views, Complainant challenges the integrity and existence in the internet of all non-profit associations without source of income, who benefit of free hosting services.

- With such views, the Complainant challenges the integrity of its own organization as at least one of its websites is hosted by Tripod (http://sahajbangalore.tripod.com/) and displays commercial banners.

- The Respondent's legitimate interest in the sahaja-yoga.org website is to provide information on Sahaja Yoga. Thanks to our thorough expertise on the subject, we provide the answers to questions that people concerned or interested by Sahaja Yoga cannot find in the Complainant's sahajayoga.org and other websites. We see our presence on the Web as a community service, allowing visitors to initiate direct e-mail contact with Sahaja Yoga ex-members, thereby benefiting from our many years experience and practice of Sahaja Yoga. Needless to say, our efforts are entirely free of charge.

- Respondent points out that in paragraph 41 of the Complaint, Complainant wrote: "When an internet user searches for Complainant's service mark, it may find - in addition to the Complainant's own official Website - the Respondents Website address. There is nothing in the domain name "sahaja-yoga.org" to indicate that the site is devoted to criticism of the Complainant". Complainant appears to be laboring under a misapprehension - search results show primarily the title of the found items, followed by a description and finally by the domain name, generally mentioned in smaller characters. Altavista's search instructions confirm: "In the ranking rules that determine which pages will appear near the top of a list of matches, the HTML title is the most important element of the page." The HTML title of the Respondent's website allows no misunderstanding and is contradicting evidence to Complainants allegations that the Respondent indulged into misleading and diverting visitors to their site: <TITLE>Sahaja Yoga: Facts and Warnings from Ex-Members</TITLE>

- The Complainant associates these free-of-charge informative services with an attempt by the Respondent to tarnish the Complainant's «service mark», Sahaja Yoga. As shown in our replies to the various email correspondence prior to these administrative proceedings, the Respondent repeatedly encouraged in good faith the Complainant to report any inaccuracies found in the Respondent's website. Furthermore, manifesting its openness to constructive criticism, the Respondent's website provides a link to a discussion forum where all opinions on the Sahaja Yoga subject are shared. Moreover, the Respondent proposed on different occasions to Sahaja Yoga officials the mutual linking of both websites. Unfortunately the Complainant has chosen to ignore Respondent's invitations. The Respondent's aim, to the sole benefit of the people interested by Sahaja Yoga, is to go beyond the Complainant's restricted information. After inviting the Complainant to constructive criticism, Respondent should not be held responsible for the consequences caused by Complainant's lack of transparency and unwillingness to engage in a constructive exchange.

- Respondent has demonstrated its rights and legitimate interest in the Domain Name, in accordance with ICANN Policy's paragraph 4c.

- The disputed domain name was registered by the Respondent on October 18, 1999 nearly a year before the Complainant's «service mark» registration on August 29, 2000.

- The Respondent's domain name <sahaja-yoga.org> was not acquired with the aim of making financial profit, nor has the Respondent engaged in a pattern of conduct preventing the Complainant from reflecting its «service mark's» presence in the many other domain names the Complainant has chosen.

- The Respondent has never advertised his <sahaja-yoga.org> domain name in a way that would be misleading to internet users. In newsgroups, e-mail and advertising material, whenever mentioned, not only is the domain name always followed by its html title, but the textual background clearly, and without room for misunderstanding, anticipates the website's contents.

- Respondent also points out that in paragraph 26 of the Complaint, Complainant correctly qualifies as candid our "good-faithed" disposition in this matter: the <sahaja-yoga.org> domain name was chosen as the available choice for the ex-members' non-profit organization aiming to inform on the subject of Sahaja Yoga. The Respondent is making a legitimate non-commercial, community service-oriented and fair use of the Domain Name. The Respondent's aim, to the sole benefit of the people interested by Sahaja Yoga, is to provide a larger spectrum of information than is available on Complainant's websites alone.

- According to Respondent paragraph 49 of the Complaint says more about the Complainant's beliefs than the Respondent considers necessary to debate in these administrative proceedings. Apologizing to the Panel for being drawn into responding to what is not strictly relevant to the domain name dispute and that failing to do so might be interpreted as an acceptance of the Complainant's allegations.

- Complainant proposes much more than is described in its «service mark» i.e. "conducting classes, workshops and seminars in the fields of techniques of meditation, relaxation and self improvement". As it has been its policy for the past 30 years, Complainant deliberately omits to convey that the purpose of their teachings and meditation techniques is to get the individual, through an elaborate and, in our opinion, manipulative belief system, to reach the conclusion that Ms Srivastava, alias Shri Mataji Nirmala Devi, (Venerable Great Mother and Immaculate Goddess), is the Creator of the Universe, and that total surrender to her is the uncompromising condition for reaching spiritual enlightenment. A belief system which is in complete contradiction to the original Sahaja Yoga.

- As a result, the Complainant and its alleged «service mark» Sahaja Yoga, finds itself listed as a "dangerous, apocalyptic cult" in different parliamentary reports of European countries.

- Sahaja Yoga deliberately prevents newcomers from accessing the very information that can irreversibly affect their lives. Ex-members legitimately wish to fill in those blanks, which are of the highest importance to any person interested in Sahaja Yoga.

- Complainant's allegations as to the intentional similarity of websites are simply absurd and, in our opinion, reflect the lack of arguments to comply with condition 4(a)(iii) of ICANN Rules (bad faith). Indeed there are similarities between the Respondent's website and that of the Complainant: the same similarities with hundreds of thousands of websites containing frames, indexes, "What's new" menus and flags for different languages. If such similarities had been intentionally created to "lead the reader into confusion" (paragraph 49 of the Complaint), why would the Respondent be so inconsistent in its deception as to name, in bold and central text the self-explanatory title: "Sahaja Yoga: Facts & Warnings from Ex-Members" ?

- In paragraph 45 of the Complaint, Complainant claims that the registration of the disputed domain name was made in bad faith, merely because of the Respondent's home address not bearing a number to the street, nor an accurate telephone number. Complainant's representative has certainly not been made aware of the different legal threats, letters of insult and intimidation, death threats and more recently computer viruses the Respondent has been receiving since its website's creation. These justify the Respondent's legitimate measures of self-protection. To understand the context of this litigation, it should be known that the individual initiatives of Sahaja Yoga ex-members to inform the public via leaflets or through the media have been followed by legal harassment or, in a specific case, threats of physical violence.

- On the subject of anonymity (paragraphs 24 and 46 of the Complaint), in the context of exiting a dangerous cult, it is understandable that most ex-members behind the website agreed to submit their testimonials and reports to the website on the condition that their identities remain unknown. As the website is the result of a collective effort, to avoid a minority of identified individuals being held responsible for the entire website, it has been the Respondent's policy to protect its informants under the veil of anonymity. Ex-members are entirely free, however, to expose their identity when replying to people addressing the Ex-members network via e-mail.

- Complainant's correspondence to the Respondent shows that it knows who the people participating to the Respondent's website are: Complainant wrote "even though we know most of these people who are writing these false articles against Sahaja Yoga and their motives behind it, Shri Mataji has asked us not to mention their names". To make an issue about anonymity is more evidence of the Complainant's dearth of arguments to demonstrate bad faith.

- Based on the above, Respondent is convinced that these administrative proceedings are one more proof of the Complainant's strategy of harassment, with the final aim as stated in their e-mail of February 26, 2001, to obtain the removal of the Respondent's website contents.

- Complainant already owns 17 similar domain names out of which only 2 are active. Needless to say, other than its content, there is no evidence of interest for the Complainant to own an 18th domain name with its «service mark».

- Moreover, the following similar domain names do not belong to the Complainant. We have contacted their owners: None appear to be subject to domain name litigation procedures initiated by the Complainant.

- [5 more similar domain names] belong to the Complainant's "direct competition", the type of spiritual groups that Complainant has repeatedly characterized as "devilish false gurus".

- That the Complainant shows no concern in allowing 15 dead links to its "service mark", and in not challenging other similar domain names, reveals the falsehood and inconsistency of the concern expressed in paragraph 41 of the Complaint. Beyond the legalese, beyond the far-fetched claims of bad faith and other weak argumentation, Complainant's only intention is to prevent access to a critical voice, using the same ways and means as most fanatical modern cults.

- The purpose of the ICANN Policy is to prevent the misuse of the domain name system by so-called cybersquatters interested in financial gain. The Respondent has clearly shown, well before these proceedings, that money played no role in the choice of the disputed domain name. It is the Respondent's belief, that the ICANN Policy is being misused by the Complainants to reach its final goal of silencing a critical website.

- Respondent therefore states that there is no demonstrated evidence of registration and use in bad faith of the disputed domain name.

6. Discussion and Findings

General

According to paragraph 4(a) of the Policy, the Complainant must prove that

(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered and is being used in bad faith.

In the light of the Complainant’s attack leveled at the Respondent on the grounds that the Respondent has filed false or incomplete information as to its identity and address with the registrar, the Panel cannot ignore the point. Had the Panel been persuaded that the Respondent’s purpose had been to make this administrative procedure more difficult to administer, it might have weighed with the Panel when considering the question of bad faith.

However, the Respondent has satisfied the Panel that that was not its purpose. Furthermore, to the extent that information was incomplete, it has not interfered with the administration of this Complaint. It has not interfered with the communications between the parties or indeed between the parties and WIPO.

Further, in the view of the majority of the Panel, before going into the discussion and findings on the various issues, it is of utmost importance to appreciate and answer the basic question whether an exclusivity and monopoly can be given to any individual or a body, organization or society etc. in relation to the name and concept in public domain, namely, <sahajayoga>.

The literature on the concept of "Sahajayoga" indicates that this concept perhaps came into existence from the Sahajayani Buddhist (who in their turn inherited it from the Mahayana-Vajra Aiana Bhuddhist tradition) and also from Tantrie Hattayoga and the Nathpanthi-Kanpathayogis.

`Sahaj' is originally a Sanskrit word which means ‘having been born together’ and thus something inwardly perceived or intuited along with one’s birth as a human being - a sort of indwelling mystical principle of divine perception given to man as his birthright and therefore, a natural and effortless heritage of divinity ingrained in humanity.

The concept "Sahajayoga" is also related to saint Kabir. He adopted neither Hinduism nor Islam as his religion but incorporated what he regarded as the best tenets of both and created his own, called "Sahaj-yoga" ("simple union"). From the Hindus, Kabir took reincarnation, for instance, and from the Muslims, the belief in one God.

This concept of taking tenets of both the religions i.e. Hinduism and Islam which was the theme of saint Kabir’s (Sahajayoga), Guru Nanak, founder of Sikhism accepted and adopted the concept of Sahajayoga in Sikhism. The ordinary meaning of Sahaj is "just in what it should be" or "just". According to Guru Nanak ‘Sahaj’ means natural fulfilment.

Thus, the word ‘Sahajyoga’ is not only a descriptive Sanskrit word but is also a concept dating back to Buddhism adopted by saint Kabir and then also taken up by Guru Nanak in Sikhism. Accordingly, ‘Sahajayoga’ is such a common term having descriptive meaning, becoming an important religious concept which has not come into existence recently or in the year 1970 when the Complainant adopted it. It would not, therefore, be permissible that any single person, body, entity, organization or a society who can either claim or would be entitled for grant of an exclusivity or monopoly on these words and concept of Sahajayoga.

In the majority view of the Panel, the discussion and findings on the legal issues should now be considered in this background and perspective.

Identical or confusing similarity

First the Complainant has to prove that it has rights in a trade mark or service mark. Secondly, it has to show that the Domain Name is either identical to that trade mark or service mark or is confusingly similar to it.

The majority view of the Panel is that the dates are important. The domain name by Respondent was registered on October 18, 1999. The registration of the service mark by the Complainant with US Trade Mark and Patent Office is dated August 29, 2000. The Complainant has proved that it has a service mark registered at the United States Patent & Trade Mark Office. The Respondent has leveled a substantial attack on the validity of that registration, but the Panel cannot look behind the registration. It is ill-equipped to do so. However, under these circumstances, it would be just and fair to consider the challenge of the Complainant to the registration of the disputed domain name of the Respondent as on the date of its registration i.e. October 18, 1999.

The Complainant being conscious of this position has given a fall back argument that in case the registration of its service mark is not to be given weight the registration of the disputed domain name of the Respondent, admittedly registered on October 18, 1999, then the Complainant would certainly be entitled to claim common law rights and plead passing off.

There is sufficient force in this argument of the Complainant. In the majority view of the Panel, it is a well established position in Common Law countries that registration of any mark does not confer any new right upon the registrant. It only give a statutory recognition to the rights of a person, which he already possesses, in and/or in relation to any mark. It has been further judicially accepted that in an action for passing off by a plaintiff, even the registration which is being held by the defendant may not be a defence. Accordingly, even when it is accepted that the Complainant is justified in claiming Common Law right protection, it becomes imperative to find out whether the Complainant is entitled to claim monopoly and/or exclusivity in the term and concept "SAHAJA YOGA"

The Policy does not call for registered rights. Unregistered or common law rights will suffice. It is not in dispute that the Complainant has used the name Sahaja Yoga since 1970. That the Respondent acknowledges that it is the name of the Complainant and the name by which the Complainant is known and recognised is evident from the manner in which the Respondent uses the name Sahaja Yoga on its website and indeed in its own name.

The Panel finds that the domain name of the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has some rights but which cannot be exclusive.

Rights or legitimate interest of the Respondent

Once the Panel (by a majority) has arrived to the conclusion that the term and concept "SAHAJA YOGA" is completely descriptive and in which no person would be entitled to claim exclusivity, the contention of the parties would deserve to be considered in the light of this conclusion. Since the Complainant would not be entitled to claim exclusivity, the following contentions raised by the Respondent will gain strength and legitimacy:

(i) Since "SAHAJA YOGA" is descriptive falling in common domain name and which existed at least 500 years before the Complainant decided to claim its ownership, the Respondent was not obliged to seek any permission from the Complainant.

(ii) Respondent's domain name was not chosen to be identified as the Complainant's organisation. The title of the Respondent's - "Sahaja Yoga: Facts and Warnings from Ex-Members" is self-explanatory and leads to no misinterpretation.

(iii) The allegation of the Complainant that the Respondent has indirect financial interest by the fact that the sahaja-yoga.org website is hosted by Tripod, a free web-space provider, is a far fetched argument inasmuch as Tripod's banner only advertises free-web space and its own presence on the web. By raising such contention the Complainant not only challenges the integrity and existence in the internet of all non-profit association without source of income, who benefit from free hosting services but the Complainant also challenges the integrity of its own organisation as at least one of its websites is hosted by Tripod and displays commercial banners.

(iv) The Respondent's legitimate interest in its website is to provide information on Sahaja Yoga. It provides the answer to the question that people concerned or interested by Sahaja Yoga cannot find it in other websites including the website of the Complainant. Its services are free of charge.

(v) The Respondent repeatedly encourages in good faith the Complainant to report any inaccuracies found in the Respondent's website. Further more, manifesting its openness to constructive criticism, the Respondent's website provide a link to a discussion from where all opinions on the Sahaja Yoga subject are shared.

By a majority, the Panel, therefore, finds that the Respondent has legitimate interest in the disputed domain name.

7. Decision (by a majority) [ie 2-1]

In view of the above, the Complaint is dismissed.

 

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