In the recent case of Hogrefe AG v. Ney Limonge D2008-1206, (WIPO October 3, 2008), a UDRP Panel had to provide a Rorschach review of whether www.RorschachOnline.com should be transferred. If you don’t already know who Hermann Rorschach is, the Panel provided a good summary as follows:
The Rorschach inkblot test … is a method of psychological evaluation. Psychologists use this test to try to examine the personality characteristics and emotional functioning of their patients. The Rorschach is currently the second most commonly used test in forensic assessment, after the MMPI, and is the second most widely used test by members of the Society for Personality Assessment. It has been employed in diagnosing underlying thought disorder and differentiating psychotic from nonpsychotic thinking in cases where the patient is reluctant to openly admit to psychotic thinking.
Complainant in the case, is the owner of numerous trademark registrations for RORSCHACH both in the U.S. (Reg. No. 2,276,256) and abroad. “Complainant is a publishing house specializing in books and magazines relating to medicine, including psychology. Complainant asserts that it is ‘owner of the copyright of the so called RORSCHACH Ink Blot Test, a psychological test with ink blots.’” Respondent is a clinical psychologist, who is using the disputed domain which “offers interactive online software designed to facilitate administration by professional psychologists of the Rorschach test.”
The crux of the decision centered around supposed numerous and unenforced trademark usage by many across the Internet and publishing world of the word “Rorschach.” As Respondent explained:
Respondent asserts that “Rorschach” is freely used by psychologists worldwide as a common term in the science of psychology and that a book search at “www.amazon.com” using the keyword “Rorschach” as part of the title yielded not less than 9,333 different books, the “vast majority related to Rorschach Test belonging publishers and authors that does not hold the alleged copyright .”
The Panel found that the use of the disputed domain was identical or confusingly similar to Complainant’s trademark. In determining the second aspect of UDRP decisions, rights or legitimate interests, the Panel took careful note of the use of the trademark on the Internet.
Although there are a few Internet references using “Rorschach” that include a notice of trademark registration (i.e., “®”), the vast majority do not. The Merriam-Webster Online Medical Dictionary definitions for “Rorschach test” (“a projective psychological test that uses a subject’s interpretation of 10 standard black or colored inkblot designs to assess personality traits and emotional tendencies - called also Rorschach, Rorschach inkblot test”) and “Rorschach” (“of, relating to, used in connection with, or resulting from the Rorschach test”),1 do not indicate that the terms are the subject of trademark rights or claims. The Panel considers it established that the term “Rorschach” is widely used in the field of psychology to refer to a test initially developed by Hermann Rorschach. The term is not predominately used as a trademark identifier associated with goods or services of Complainant.
As a result, the Panel found that the Respondent has a legitimate interest in the domain name, and explained there was no need to address the issue of bad faith. Ultimately, the Panel DENIED Complainant’s request for transfer.
