For The National Arbitration Forum

Nevyas v. Morgan (UDRP Action)

On July 1, 2010, Drs. Herbert Nevyas and Dr. Anita Nevyas-Wallace filed requests for arbitration under the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”) with the National Arbitration Forum, seeking the transfer of the domain names,, and

According to the Complaint, the websites located at the domain names at issue in the proceeding contain “disparaging and false remarks about Complainants” and falsely imply “that they are owned by Complainants, not that they are owned by an individual criticizing Complainants.”


Exactly 2 WEEKS AFTER THEY COMPLAINED TO THE NATIONAL ARBITRATION FORUM Anita’s son Jonathan registered 87 domain names, using 30 different variations of my name and or websites. In December 2010, the Nevyases decided they did not want to litigate the case in Federal Court due to “cost of litigation”.  I did not find the information regarding what Anita Nevyas’ son did until well after December 2010. This was never brought up or addressed to the courts because I did not, nor do I care.

From Their Complaint:

Complainants Dr. Herbert Nevyas and Dr. Anita Nevyas-Wallace are surgical and medical ophthalmologists that have performed lasik surgery since at least as early as 1995. See Verification of Dr. Anita Nevyas-Wallace, attached as Ex. B. Dr. Herbert Nevyas founded Nevyas Eye Associates in 1964 and has directed its medical and surgical ophthalmology practice since that time. Ex. B. Dr. Anita Nevyas changed her name to Anita Nevyas-Wallace in 1987, but continues to use the name Anita Nevyas. Ex. B. Both of Complainants have practiced lasik surgery continuously at Nevyas Eye Associates since at least as early as 1995. Ex. B. Their practices are described at the website See Printouts from attached as Exhibit C.

Complainants have advertised their lasik practice to the general public since 1992 and have done so continuously using the marks “Dr. Herbert Nevyas,” “Dr. Anita Nevyas,” “Nevyas Eye Associates,” and “Nevyas Lasik.” Ex. B. In addition to traditional forms of advertising and marketing, Complainants advertise their practice online through the websites and, through informational articles posted on other websites, and through online videos at websites such as Ex. B. For example, Complainants’ YouTube videos display the headings “Dr. Herbert J. Nevyas LASIK” and “Nevyas Eye Associates LASIK.” See YouTube videos displaying marks, attached as Exhibit D.

The Forum has previously recognized that individuals have common law trademark rights in their own names enforceable in domain dispute proceedings. See Jerry Damson, Inc. v. Texas International Property Assoc., F0702000916991 (Nat. Arb. Forum Apr. 10, 2007) (Jerry Damson doing business under the mark “Jerry Damson Acura” had right to domain name). See also Margaret Drabble v. Old Barn Studios Ltd., D2001-020 (WIPO Mar. 26, 2001) (author Margaret Drabble had common law rights to domain); Jeanette Winterson v. Mark Hogarth, D2000-0235 (WIPO May 22, 2000) (Jeanette Winterson had common law rights to her name); Julia Fiona Roberts v. Russell Boyd D2000-0210 (WIPO May 29, 2000) (Julia Roberts had common law rights to “Julia Roberts”); Thibodeau, v. Yomtobian, FA 94868 (Nat. Arb. Forum June 28, 2000) (rights to “Dr. Lauren” in dispute re:

The complainant also need not be a famous individual for common law rights in his or her name to arise. See, e.g., Dr. Paul Guerrino v. Yin Chew, FA0204000110873 (Nat. Arb. Forum June 17, 2002) (Practicing dentist Dr. Guerrino owned rights to

Finally, it is not necessary that Complainants own a trademark registration for their mark for that mark to be protected. See Jerry Damson, supra; Broad Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying Policy to “unregistered trademarks and service marks”). Complainants have continuously used the “Nevyas Lasik” mark and similar trademarks containing their names and the “Nevyas” surname in connection with their medical and surgical ophthalmology practices since at least as early as 1995. Ex. B. As such, they have developed common law rights in the marks. See Tuxedos By Rose v. Nunez, FA 95248 (finding common law rights in a mark where its use was continuous and ongoing).


This complaint is based on the following factual and legal grounds:

[a.] Respondent’s domain names are nearly identical to Complainants’ trademarks, pursuant to ICANN Policy ¶ 4(a)(i), and are being used in a deceptive manner.

Respondent’s domain names,, and are nearly identical to Complainants’ names and trademarks. Complainants are well-known lasik surgeons whose services are advertised in connection with the marks “Herbert Nevyas Lasik” and “Anita Nevyas Lasik” and the domains and It is well-established that the addition of a generic top level domain such as “.com” to a trademark, or other minor changes to the mark, do not cause the domain name to be non-identical. See, e.g., Jerry Damson, supra.; Tropar Mfg. Co., Inc. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002 (“The addition of a generic top-level domain does not add any distinguishing characteristics to a domain name because it is a required feature in every domain name.”)

Respondent further increases the likelihood of confusion between his domains and Complainants’ by advertising his websites in a deceptive manner that suggests they are affiliated with Complainants and Nevyas Eye Associates. A Google search for “Nevyas Lasik” or a similar term displays the following Google headlines for Respondent’s websites:

Welcome to!

Drs. Herbert Nevyas & Anita Nevyas-Wallace…

Nevyas Eye Associates…


Google search results, attached as Ex. E (Respondent’s websites are highlighted so that they can be distinguished from Complainants’ website).

Once a patient or potential patient visits Respondent’s websites, the patient views disparaging and false remarks about Complainants. See Printouts from Respondent’s websites, attached as Exhibit F. Respondent’s websites also contain links to other websites featuring the services of other lasik surgeons and doctors with similar ophthalmology practices. Id.

Respondent’s websites track the number of clicks to each competitive website, suggesting that Respondent may be profiting from this confusion and traffic to his website by obtaining clickthrough fees. Id.

[b.] Respondent has no rights or legitimate interests in the domain names, pursuant to ICANN Policy ¶ 4(a)(ii).

Respondent is apparently an individual by the name of Dom Morgan, who was previously involved in state and federal litigation with Complainants. See Ex. F (Printout from Respondent’s websites stating websites are owned by Dom Morgan). Dom Morgan was a patient of Complainants in 1998 who was unhappy with the results of his treatment and subsequently posted numerous false, disparaging and defamatory statements regarding Complainants and their practice on multiple websites. Ex. B. Complainants sued him and subsequent to these lawsuits, statements were removed from his websites. Unfortunately, the parties’ legal battle continues. Ex. B.

Currently, Respondent owns and operates a number of websites where he criticizes the practice of lasik surgery and various lasik surgeons, including Complainants. Respondent is the owner of websites such as,,,, and See Exhibit G (Whois Information for Respondent’s Other Websites). Respondent also operated the website This action does not implicate Respondent’s ability to post critical statements regarding Complainants on those domains, or any domains that do not contain Complainants’ trademarks. The domain names at issue in this action indicate that they are owned by Complainants, not that they are owned by an individual criticizing Complainants.

Prior panel decisions have held that this type of initial interest confusion, caused by the domain name itself, is impermissible. See The Paxton Herald v. Millard, FA0207000114770 (Nat. Arb. Forum Aug. 21, 2002) (“While the content of Respondent’s website may enjoy First Amendment and fair use protection, those protections do not equate to rights or a legitimate interest with respect to a domain name which is confusingly similar to another’s trademark.”); Council of American Survey v. Pinelands Web Services, D2002-0377 (WIPO July 19, 2002) (“Respondent may have a right to refer to the mark in critical content, the wholesale appropriation of Complainant’s mark in a domain name, without any distinguishing material, creates confusion with Complainant’s business and is not fair use merely for the purpose of criticism…No criticism is apparent from the domain name itself; it is not sufficient that the criticism may be apparent from the content of the site.”)

1. Respondent has no rights or legitimate interests in the domains because he is not commonly known by Complainants’ trademarks and does not use the marks in connection with a legitimate offering of goods and services.

Respondent has no rights or legitimate interests in domains because he sells no goods or services on his websites and seeks only to capitalize on Complainants’ trademarks by luring consumer traffic to his website, disparaging Complainants, and advertising similar lasik services offered by other practitioners. For example, when one of the links on Respondent’s website is clicked, the customer visits, where the customer views the following advertisements:

Tri-County Eye Physicians

Cataract & Oculo-plastic Surgery Laser Vision Correction/LASIK

Locate an Eye Doctor

Locate an Eye Doctor in your area and Learn more about your Eyes

Other links on Respondent’s website also advertise competitive products and services.


Printouts from Respondent’s websites, attached as Exhibit F. Respondent’s websites display the number of hits on each link, indicating that Respondent’s websites have redirected thousands of consumers to other websites advertising competitive products and services. Respondent also has a history of using websites to solicit donations to pay his legal fees in litigation against Complainants. See, e.g.,

Respondent’s domains invite visitors to contact him and support him in his litigation with Complainants.

Respondent has no trademark or service mark rights in the “Nevyas Lasik,” “Anita Nevyas Lasik” or “Herbert Nevyas Lasik” trademarks and is not commonly known by these marks. Having no rights in the marks at issue, and offering no goods or services, Respondent simply attempts to profit and damage Complainants by misleadingly diverting customer traffic away from and to his websites and the links on his websites.

Respondent’s use of domain names that are nearly identical to Complainants’ marks to divert Internet users to websites that offer competitive products and services, and for which Respondent presumably receives a commission or click-through fees, is not a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use of the domains under the ICANN Policy. See Emmit Smith, III v., FA 555486 (Nat. Arb. Forum Oct. 26, 2005) (citing Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names); Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name)).

2. Respondent has no rights or legitimate interests in the domains because he is not making a legitimate, non-commercial fair use of the domains pursuant to Paragraph 4c(iii), but is using the domains with an intent to tarnish Complainants’ trademarks and profit from misleadingly diverting customers.

Respondent registered the domains in February, 2009. See Ex. A. Respondent’s legal battles with Complainants began in 2000 and have continued into the present.

Ex. B. Respondent’s websites make clear that Respondent’s goal is to tarnish Complainants’ trademarks, damage Complainants’ business, and profit from the use of Complainants’ marks.

Ex. F.

Complainants assert this complaint not to impair Respondent’s First Amendment rights but because Respondent is using Complainants’ trademarks in the domains to suggest that the domains are sponsored by or affiliated with Complainants, to confuse Complainants’ patients and potential patients, and to lure traffic to Respondent’s websites.

Respondent’s website headlines – “Nevyas Eye Associates” and “Welcome to!” – misleadingly suggest that patients will be visiting Nevyas Eye Associates or Complainants’ “Nevyas Lasik” practice if they select those links. Once the patient arrives at Respondent’s websites, Respondent’s has already profited from this initial interest confusion and has succeeded in tarnishing Complainants’ trademarks.

[c.] Respondent registered and uses the domains in bad faith, pursuant to ICANN Policy ¶ 4(a)(iii).

1. Respondent’s Registration of Multiple Domain Names Containing Complainants’ Marks and His Advertisement and Use of Those Domain Names Causes a Likelihood of Confusion, Particularly Initial Interest Confusion, to Attract Individuals Seeking Complainants’ Website to Respondent’s Websites.

Paragraph 4(a)(iii) of the ICANN Policy lists a non-exhaustive list of circumstances that indicate bad faith registration and use of domains, which includes evidence that the respondent “intentionally attempted to attract, for commercial gain, Internet users to [his or her] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [his or her] web site or location or of a product or service on your web site or location.”

Respondent’s use of Complainants’ marks in his domain names creates a likelihood of confusion and suggests an attempt to attract Internet users to Respondent’s websites for commercial gain. See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another’s mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002); Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002).

Furthermore, where a disputed domain name containing the complainant’s trademark is being used to feature links to websites that compete with the complainant, presumably for referral fees, that use alone constitutes bad faith under the Policy. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006); Asbury Auto. Group, Inc., v. Tex. Int’l Prop. Assoc., FA 958542 (Nat. Arb. Forum May 29, 2007); David Hall Rare Coins v. Tex. Int’l Prop. Assoc., FA 915206 (Nat. Arb. Forum Apr. 9, 2007); Am. Airlines, Inc., v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007).

2. Respondent Engaged in a Pattern of Registering Domains Reflecting Complainants’ Trademarks, Which Prevents Complainants from Registering Corresponding Domain Names Reflecting Their Marks.

Pursuant to Paragraph 4(a)(iii), evidence of bad faith also includes evidence that the Respondent “registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent] engaged in a pattern of such conduct.” Respondent’s registration of a series of domains that all contain essentially the same website content suggests a pattern of registering domains so that Complainants cannot register them. There is no other justification for Respondent’s ownership of a series of domain names featuring the same website content.

3. Respondent Registered the Domain Names Primarily for the Purpose of Disrupting Complainants’ Business.

Evidence of bad faith can also include facts indicating that the domain was registered primarily for the purpose of disrupting the business of the trademark owner. Respondent states that his websites were created for the following purpose: “to update and further prove all allegations I brought against the Nevyases as documented on my previously owned website and now I would also like to show how I believe the courts were wrong in many of their decisions and/or opinions regarding my med mal lawsuit Morgan v. Nevyas and the current Nevyas v. Morgan lawsuit.” Ex. F.

Thus, Respondent admits that his websites were registered and are being used for to disrupt Complainants’ businesses. Respondent falsely alleged that Complainants committed medical malpractice, and if his stated intention is to attempt to publicly prove those allegations, his conduct necessarily involves disrupting Complainants’ businesses. See also Dr. Karl Albrecht v. Eric Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000) (“The Respondent intentionally registered a domain name which uses the Complainant’s name. There is no reasonable possibility that the name <> was selected at random. There may be circumstances where such a registration could be done in good faith, but absent such evidence, the Panel can only conclude that the registration was done in bad faith.”)


Complainants request that the panel issue a decision that Respondent’s domain-name registrations be transferred to Complainants.




Complainants assert that a copy of this Complaint, together with the cover sheet as prescribed by NAF’s Supplemental Rules, has been sent or transmitted to Respondent at the contact information provided, in accordance with ICANN Rule 2(b), and to the domain name Registrar at the contact information provided, in accordance with NAF Supp. Rule 4(e).


Complainants will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the location where the Respondent is located, in accordance with ICANN Rule 3(b)(xiii).


Complainants agree that their claims and remedies concerning the registration of the domain name, the dispute, or the dispute’s resolution shall be solely against the domain-name holder and waive all such claims and remedies against (a) the National Arbitration Forum and panelists, except in the case of deliberate wrongdoing, (b) the Registrar, (c) the registry administrator, and (d) the Internet Corporation for Assigned Names and Numbers, as well as their directors, officers, employees, and agents.

Complainants certify that the information contained in this Complaint is to the best of their knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a goodfaith and reasonable argument.

Respectfully Submitted,

Bryna S. Scott, Esq.

Alexis Arena, Esq.


1600 John F. Kennedy Blvd., Suite 200

Philadelphia, PA 19103

Attorneys for Claimants

Dated: July 1, 2010

View the complete document HERE



Complainant(s) have a history of misrepresenting facts to impede Respondent Morgan‟s First Amendment Rights. Complainant(s) through their counsel prior to the onset of litigation in the Nevyas v. Morgan lawsuit have stated “that this website should be removed in its entirety”1 and have repeatedly harassed Respondent Morgan‟s website hosting providers with threats of lawsuit. Complainant(s) twice attempted to obtain a restraining order against Respondent Morgan which was denied by the Philadelphia Court of Common Pleas. Complainant(s) then brought suit against Respondent Morgan in Federal Court. The federal district court dismissed the Lanham Act claim because the plaintiffs lacked standing to bring a false advertising claim and because Morgan’s statements did not qualify as “commercial advertising or promotion.” Unhappy with the Federal Court decision, Complainant(s) reinstated their claims in the state court for defamation, breach of contract and specific performance which proceeded to trial in July 2005. The trial court granted an injunction in favor of the plaintiffs (complainant(s)). On appeal, the Superior Court of Pennsylvania vacated the injunction in March 2007 and remanded the case to the trial court for further findings and proceedings.2 Claimant(s) allege that Respondent Morgan posted numerous false, disparaging and defamatory statements regarding Complainants are not true and have yet to be determined by the courts. In addition, facts Respondent Morgan and his co-defendant submitted during litigation resulted in the Judge ruling that Complainant(s) were public figures.3

1 Exhibit 1 –

2 Exhibit 2 –

3 Exhibit 3 –


Misrepresentations to Schullman Associates, Complainant(s) Institutional Review Board (IRB) and the U.S. Food and Drug Administration during their investigational study for LASIK have resulted in:

(a) Damages to over 30 people by claimant(s);

(b) Numerous letters from the FDA stating claimant(s) were in violations of their study;4

4 Exhibit 4 – – under section „Nevyases Investigational Study‟

(c) Discontinuance of their study by the FDA for safety reasons;

As such, the public has a right to know they are at risk when choosing services by claimant(s).


a) This Response specifically responds to the statements and allegations contained in the Complaint and includes any and all bases for the Respondent to retain registration and use of the disputed domain name.

b) First and foremost, it is important to note at the outset that this is a case about Internet gripe sites in which the names of the Complainants – Herbert and Anita Nevyas — have been used in the domain names for sites that are devoted to describing Respondent‟s criticisms of those Complainants. Even assuming that their names can be the subject of a trademark-like UDRP complaint, this UDRP proceeding should take account of constitutional and trademark law in the United States, where the validity of any decision by the UDRP panel will be contested. And courts in the United States have consistently held that trademark claims over domain names in the form cannot be brought when the domain name is used for a web site that is about the trademark holder, so long as the web site itself is not confusing about whether it is sponsored by the trademark holder.

Lighthouse Ministry v. Foundation for Apologetic Information and Research, 527 F.3d 1045 (10th Cir. 2008); Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), rev’g 360 F. Supp 2d 768 (E.D.Va. 2004); Lucas Nursery and Landscaping v. Grosse, 359 F.3d 806 (6th Cir. 2004); Taubman v. WebFeats, 319 F3d 770 (6th Cir. 2003). Indeed, the First Amendment limits trademark law to commercial uses. Id. Consequently, it is an independent ground for objecting to the application of trademark law to the use of domain names like those at issue here that the use is for the non-commercial purpose of expressing opinions about the trademark holder. Lighthouse Ministry v. Foundation for Apologetic Information and Research, 527 F.3d 1045 (10th Cir. 2008); Bosley Medical v. Kremer, 403 F.3d 672 (9th Cir. 2005); TMI v. Maxwell, 368 F.3d 433 (5th Cir. 2004); Taubman v. WebFeats, 319 F3d 770 (6th Cir. 2003).

c) The domain names <>, <>, and <> (sites listed) are not identical or confusingly similar to a trademark or service mark in which the Complainant(s) claims to have rights.

i) It is impossible for visitors to (sites listed) to be confused into thinking that they are visiting complainant(s) web site. A simple perusal of the home pages of (sites listed) makes it immediately obvious that the sites are designed to openly show Respondent Morgan‟s experience with claimant(s) and what can happen if you are not a good candidate for LASIK. The first caption of each website states: “After damaging my eyes with Refractive Surgery, Drs. Herbert Nevyas and Anita Nevyas-Wallace of Nevyas Eye Associates sued to silence me.” No person of average intelligence could conclude that an organization would operate a web site to show they damaged people and impeded on a person‟s First Amendment Rights. Furthermore, there are many statements and links on the sites that encourages the visitor to verification of comments made on respondent Morgan‟s sites. In lieu of complainant(s) argument, as of July 29, 2010 the websites now reads:

<> “Why I do not recommend Nevyas Eye Associates!”, <> “Why I do not recommend Anita Nevyas!”, and <> “Why I do not recommend Herbert Nevyas!”. The title pages of each site have also been changed to further reflect these sites are not complainant(s).

d) Respondent owns <>, <>, and <> and has rights and legitimate interests in that is/are the subject of the complaint. ICANN Rule 3(b)(ix)(2); ICANN Policy ¶ 4(a)(ii).

i) The Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue, establishes a legitimate interest in the domain name. UDRP panels have stated repeatedly that criticism of a trademark owner‟s activities is a fair use, even if the domain name incorporates the Complainant‟s trademark. See, e.g.,

Bridgestone Firestone, Inc. v. Myers, WIPO Case No. D2000-0190 (July 6, 2000); Bosley Med. Group v. Kremer, WIPO Case No. D2000-1647 (February 28, 2001); TMP Worldwide Inc. v. Potter, WIPO Case No. D2000-0536 (August 5, 2000); The Am. Nat’l Red Cross v. LLC, NAF File No. FA0206000114589 (August 6, 2002); Pensacola Christian College Inc. v. Gage, NAF File No. FA0110000101314 (December 12, 2001); Compusa Mgmt. Co. v. Customized Computer Training, NAF File No. FA0006000095082 (August 17, 2000); Robo Enters., Inc. v. Daringer, NAF File No. FA0101000096375 (February 21, 2001); Savin Corp. v., NAF File No. FA0201000103982 (March 5, 2002); Bloomberg L.P. v. Secaucus Group, NAF File No. FA0104000097077 (June 7, 2001); Mayo Found. for Ed. and Research v. Briese, NAF File No. FA0102000096765 (May 4, 2001); Dorset Police v. Coulter, eRes Case No. AF-0942 (October 20, 2001); Carefree Toland Pools, Inc. v. Thomson, eRes Case No. AF-1012 (October 30, 2001); cf. Wal-Mart Stores, Inc. v. MacLeod, WIPO Case No. D2000-0662 (September 19, 2000) (stating that criticism can be a legitimate interest, but finding no legitimate interest because the protest site was created only as a pretext for selling the site back to the trademark owner); Becker & Poliakoff, P.A. v. Isabell, eRes Case No. AF-0847 (August 9, 2000) (stating the panel would find criticism to be a legitimate fair use if it had not decided the dispute on other grounds). Respondent Morgan also is not a commercial enterprise and the sole purpose of his

websites are to provide verifiable, factual information about respondent Morgan‟s experiences with complainant(s). Although the information provided on Respondent’s web site admittedly is, and should be, embarrassing to complainant and its LASIK surgeons, complainant has not provided any evidence to support his allegation that it is defamatory. There is significant social value in permitting people to express their opinions as part of their First Amendment rights, just as there is a right to criticize public figures and organizations under the freedom of speech principles of the U.S. Constitution. These rights clearly override the minimal commercial value of a domain name in a case like this.

ii) The accuracy and legitimacy of respondent Morgan‟s claims about complainant(s) on <>, <>, and <> are confirmed by the public documents throughout Respondent Morgan‟s websites.

c) Respondent has not registered <>, <>, and <> in bad faith ICANN Rule 3(b)(ix)(3); ICANN Policy ¶ 4(a)(iii).

i) Respondent Morgan has not offered to sell the domain names to any entity. Respondent Morgan has simply acquired the domain names for the purpose of educating the public due to claimant(s) risk to public safety and past improprieties which the complainant(s) engages.

ii) Complainant(s) allege Respondent Morgan profits from the domains. This is simply not true. Most Lasik websites are advertisements for having Lasik eye surgery. These sites will list complications but severely downplay the risks associated with LASIK just to sell you the procedure. The same can be said of MANY doctors who perform this procedure when you go in for consultation. Most domains listed are third party sites by others damaged by Refractive Surgery, sites useful for those seeking information regarding LASIK that doctors just do not emphasize. The website <> claimant(s) emphasized was previously owned by Ariel Berchadsky, a New York lawyer who was damaged by refractive surgery.5 Respondent Morgan does not earn any click-through fees or commissions from the web sites posted at the contested domain names. He does not profit from them in any way. All of the links in the „Links‟ section of Respondent Morgan‟s websites have been chosen because, in the opinion of Respondent Morgan, they offer useful information to prospective patients who are considering surgery on their eyes, or to other lasik victims like Respondent Morgan who are trying to learn what they can do about what has been done to them. If some of those sites are mounted by professionals in the field, who hope that viewers will be choose their services, that is not why Respondent Morgan has linked to them and in particular the link goes to the informational pages on such web sites, not to pages that advertise the services of their creators. Respondent Morgan acknowledges changes are required to update sites and will do so accordingly (already started). Complainant also makes an issue of the fact

5 Exhibit 5 – The link for has since been removed from the sites listed.

that, on a different web site that does not contain any of Complainants‟ names in the URL, Respondent Morgan urged public support for Public Citizen,6 a not for profit organization and accepts no government or corporate money – they rely solely on foundation grants, publication sales and support from their members. As previously noted, Public Citizen‟s litigation group represented Respondent Morgan in a successful appeal from an injunction against the maintenance of that web site. But there is no appeal for support for Public Citizen on any of the web sites at issue in this case and, in any event, the United States Court of Appeals has specifically held than an expression of support for Public Citizen, along with a link to its web site, by one of its clients in a domain name case did not make that web site “commercial” and hence amenable to suit under the trademark laws.

Bosley Medical Institute v. Kremer, 403 F.3d 672, 678 (9th Cir. 2005)

6 Exhibit 6 –

iii) A consensus has not yet developed among panels regarding whether an individual can have a legitimate interest in using a domain name in the form <> for the purpose of criticizing or commenting on the trademark owner. Compare

Bosley Med. Group, WIPO Case No. D2000-1647 (using <> to comment on trademark owner is fair use), with Nintendo of Am. v. Jones, WIPO Case No. D2000-0998 (November 17, 2000) (“Insofar as a domain name which is identical to a name or mark is used solely in the context of the product of the owner of the name or mark and the owner objects to the use, it is not legitimate.”). In the absence of a consensus, a panel must consider the parties‟ arguments and relevant legal authorities and then make a decision consistent with the goals of the Policy and the Rules, as well as general legal principles. See Rules Paragraph 15(a) (“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”). Moreover, as discussed above, because Complainant has accepted jurisdiction for judicial review in the United States, the panel should apply United States law, including both the First Amendment and the many court decisions limiting the use of trademark law to domain names for non-commercial web sites about the trademark holder. Prior panel decisions finding no legitimate interest in using a domain name in the form of <> for the purpose of criticizing or commenting on the trademark owner all relate to a trademark owner that is a commercial enterprise. Complainant claims to offer a “non-profit” service. Respondent also does not offer or provide any goods or services through its web site, nor does it solicit or accept donations. Accordingly, there is no intent to divert nor effective diversion of any commerce, nor any risk of misdirected donations. Respondent has neither sought nor received any commercial gain from the registration and use of the domain name.

iv) The panel in

Legal & Gen. Group Plc v. Image Plus, D2002-1019 (WIPO Dec. 30, 2002), found that initial interest confusion was displaced by the criticism content at the respondent’s web site and that such a “low level of confusion is . . . a price worth paying to preserve the free exchange of ideas via the Internet.” In Elm Grove Dodge

Chrysler Jeep, Inc. v. Schedule Star

, FA 352423 (Nat. Arb. Forum Dec. 27, 2004), the panel came to a similar conclusion, finding no bad faith registration or use where the respondent “only registered the disputed domain names to voice concerns and complaints about Complainant” and “[n]o one reading the web site would be confused as to sponsorship.”

v) Complainants also protest at length about the way Respondent Morgan “advertises” his web site in Google. Respondent does not “advertise” on Google – Google crawls web sites, identifies sites that are believed to be relevant to search queries using its sophisticated algorithm, and then returns search results accordingly. And it is Google, not Respondent, that decides how to describe the sites being returned, drawing text from the sites themselves. Each of the items about which the Nevyases complain are “organic” search results whose placement and content are determined solely by Google in its own discretion. Moreover, the courts do not agree with the implicit argument by complainants that the content of search listings makes out a basis for trademark litigation. No case based on the theory of “initial interest confusion” can be made out when a user of a search engine clicks on a search result and comes to a landing page that so clearly dispels any possible confusion as Respondent‟s pages do, by expressly criticizing the trademark holder. And, even if there were a possible trademark claim, it would not be a UDRP claim which is based only on the content of the domain name.

vi) Complainant(s) have presented a bizarre and baseless claim to the National Arbitration Forum that clearly emphasizes Respondent Morgan‟s claims that claimant(s) continuously impede on Respondent Morgan‟s First Amendment Rights and the harassment to silence him.7

7 Exhibit 7 – Claimant(s) wrote this letter over 7 years after Respondent Morgan last saw them as a patient. Respondent Morgan believes the actions of claimant(s) was of vindictive nature and to further harass Morgan.


Respondent Morgan asserts that a copy of the Response, as prescribed by NAF‟s Supplemental Rules, has been sent or transmitted to the Complainant(s), in accordance with ICANN Rule 2(b). ICANN Rule 5(b)(vii); NAF Supp. Rule 5.

6) Respondent Morgan respectfully requests that the Administrative Panel denies the remedy requested by the Complainant(s).


Respondent Morgan certifies that the information contained in this Response is to the best of Respondent‟s knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.

Respectfully Submitted,

Dominic J. Morgan, Respondent

View the complete document HERE and HERE (exhibits)


Complainants Dr. Herbert Nevyas and Dr. Anita Nevyas-Wallace (“Complainants”) submit this additional submission in reply to the Response filed by Respondent Dom Morgan / n/a (“Respondent”).

[a.] Respondent’s Belated Revisions to His Websites Are Not Evidence of His Rights to the Domains; To the Contrary, They Evidence Respondent’s Bad Faith Prior to His Receipt of the Complaint.

Respondent states that since receiving the Complaint in this matter, he: (1) removed the link on his website to, which contained advertisements for Complainants’ competitors; and (2) revised the title pages of his websites so as to not misleadingly refer to Complainants. Response, at 3, 5, Ex. 5.

Respondent’s removal of commercial links on his website and the edits to his website text do not absolve him from liability in this proceeding, because the Policy focuses on the content of Respondent’s websites before the date the Complaint was filed. Paragraph 4(c)(i) of the Policy states that a respondent may demonstrate “rights to and legitimate interests in the domain name” by showing “before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services…” Policy, 4(c)(i).

Moreover, Respondent’s belated revisions are evidence that he used the domains in bad faith before he received the Complaint. See Comweld Group Pty. Limited v. Comco Industries Co. Ltd., Case No. D2001-0290 (WIPO August 31, 2001) (“Respondent’s attempts to change the content of the website are evidence that the registration was not in good faith.”); St. Lawrence University v. Nextnet Tech c/o Domain Dept, FA0701000881234 (Nat. Arb. Forum Feb. 21, 2007) (“Respondent has authority to change the website content, and Respondent directed that changes be made to the website’s content and keywords after receiving the Complaint in this proceeding.”); Granarolo S.p.A. v. Michele Dinoia a/k/a, FA0602000649854 (Nat. Arb. Forum April 17, 2006) (“Respondent’s attempts to change his website provide clear evidence of endeavours to get around the consequences of the bad faith registration of a famous mark.”)

Indeed, if respondents in UDRP proceedings could always avoid liability by making changes after receipt of a UDRP complaint, the UDRP process would be ineffective. There is nothing to prevent Respondent from changing his websites back to the way they were previously once this action is concluded, or making his websites more deceptive, if Respondent is permitted to maintain control of the domains.

For that reason, UDRP proceedings properly focus on the content of the domain names themselves. Here the domain names at issue indicate that they are owned by Complainants, not that they are owned by an individual criticizing Complainants.

1 Compare The Paxton Herald v. Millard, FA0207000114770 (Nat. Arb. Forum Aug. 21, 2002).

[b.] Respondent’s Statement That Google – and Not Respondent – Is Responsible For the Way His Websites Appear to Consumers in Search Results is False.

One change Respondent has not made since receiving the Complaint is to revise the headlines or “title tags” of his websites, which are displayed to internet users viewing Google search results. The title tags for Respondent’s websites still include phrases such as:

Welcome to!

Drs. Herbert Nevyas & Anita Nevyas-Wallace…

Nevyas Eye Associates…


Exhibits E and F to Complaint and attached Exhibit 1.

Respondent argues that the way his websites are listed has nothing to do with Respondent’s actions and is a result of Google’s actions. However, Google explains that “title tags” like Respondent’s are authored by website owners themselves. See, e.g.,

When Respondent created his website content, he alone selected the underlined phrases displayed above and in Google search results. These phrases authored by Respondent are part of his websites’ content and are one of the reasons his website content is misleading to consumers.


Respondent argues that “this is a case about Internet gripe sites” but unlike gripe sites, such as, the domain names here give no indication that their purpose is criticism.

Respondent is also incorrect that no case can be made in this proceeding based on “initial interest confusion.” Respondent’s domain names themselves, coupled with misleading website content such as his “title tags” create initial interest confusion that causes prospective patients to unwittingly visit Respondent’s websites, even if they later realize their mistake. See Council of American Survey v. Pinelands Web Services, D2002-0377 (WIPO July 19, 2002) (“Respondent may have a right to refer to the mark in critical content, the wholesale appropriation of Complainant’s mark in a domain name, without any distinguishing material, creates confusion with Complainant’s business and is not fair use merely for the purpose of criticism…No criticism is apparent from the domain name itself; it is not sufficient that the criticism may be apparent from the content of the site.”)

Respondent essentially admits that his intention is to drive prospective patients of Complainants to his website and to cause harm to Complainants’ reputation and business, stating that “the public has a right to know they are at risk when choosing services by claimant(s).”

Response, at 3. Respondent also previously contacted Dr. Stephen Barrett, the Board Chairman of Quackwatch, Inc. (an organization dedicated to consumer protection and health fraud prevention), with his allegations regarding Complainants. See Exhibit 2 (Emails from Dr. Barrett). Dr. Barrett remarked that he felt Complainants were reputable and that Respondent’s current website may expose him to a libel suit and Respondent replied that his intention with the website was to put Complainants out of business. Id. Respondent’s bad faith intent to disrupt Complainants’ business by causing consumer confusion could not be clearer.

[c.] The Litigation Respondent Describes Does Not Concern the Websites At Issue Here and His Statements Regarding Those Disputes Are Inaccurate and Irrelevant in This Proceeding.

It is unnecessary to detail the inaccurate statements made by Respondent regarding underlying disputes with Complainants here, because those statements have no relevance in this proceeding. To summarize, Respondent was unhappy with the results of his medical malpractice lawsuit against Complainants, because Complainants did not commit medical malpractice, and thereafter Respondent began carrying out his stated intention of putting Complainants out of business through internet gripe sites. However, Respondent crossed the line and violated the Policy when he began registering domains comprised of Complainants’ trademarks and including links to Complainants’ competitors on those websites.

Although the parties’ previous litigation also involves Respondent’s websites, the litigation does not concern the domains at issue here. Complainants’ defamation claims against Respondent focused on Respondent’s statements on the website., which is no longer owned by Respondent.

[d.] Respondent Has Not Shown A Legitimate Non-Commercial Fair Use of These Domains and His First Amendment Rights Are Not Implicated.

Finally, although Respondent asserts that he did not obtain click-through fees or any other commercial profit by advertising the services of Complainants’ competitors, this assertion is unsubstantiated by any evidence. The evidence shows that Respondent’s websites link to Complainants’ competitors websites and those “hits” are tracked on Respondent’s websites. See Complaint attached Exhibits. He admits that he links to professionals in the field who may hope that viewers will choose their services and “[m]ost Lasik websites are advertisements for having Lasik eye surgery.” Response, at 3. However, he argues “that is not why Respondent Morgan has linked to them.” Id.

Respondent’s internal motivation in linking to these websites is irrelevant; it is sufficient that the disputed domains link to Complainants’ competitors. Furthermore, Respondent himself does not have to be a direct competitor of Complainants to have acted in bad faith. See St. Lawrence University v. Nextnet Tech c/o Domain Dept, FA0701000881234 (Nat. Arb. Forum Feb. 21, 2007) (“By redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii)); Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”); S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent); EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <> in bad faith where the respondent has used the domain name to promote competing auction sites).

This action does not implicate Respondent’s First Amendment rights or his ability to post critical statements regarding Complainants on any of the other domains he owns that do not contain Complainants’ trademarks, such as,, etc. This action concerns only Respondent’s ownership of the domain names, and and his registration and use of those domains in violation of the Policy.

For the foregoing reasons, and the reasons described in Complainants’ Complaint, the,, and domains should be transferred to Complainants.

Respectfully Submitted,

Bryna S. Scott, Esq.

Alexis Arena, Esq.


1600 John F. Kennedy Blvd., Suite 200

Philadelphia, PA 19103

Attorneys for Claimants

Dated: August 4, 2010

View the complete document HERE, HERE (exhibits), and HERE (exhibits)


Complainants’ Additional Submission, as their Complaint, consists of half-truths and worse. As but one example, consider complainants’ exhibit B, a July 16, 2010 letter to Alexis Arena from Stephen Barrett, MD, explained below:

In 2003 University of Cincinatti Law Professor James O’Reilly contacted me and asked me to post, on my website, his article on legal and regulatory problems involving LASIK eye surgery,

and I agreed. After the Nevyases sued me, I asked professor O’Reilly to re-evaluate my website. He did, and prepared a declaration, which I posted online.


1 I, James T. O’Reilly, make this declaration to place this matter of record, subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to public authorities. I declare that:

1. My professional address is at the College of Law, University of Cincinnati, P.0 210040, Cincinnati, Ohio 45221-0040. 1 am a member of the Bar of Ohio and Virginia, the Sixth and Federal Circuits and the U.S. Supreme Court. I have taught law students regarding the law of medical devices, products liability and administrative law since 1980, and am the author of more than twenty textbooks and one hundred articles, and have appeared as an FDA law expert in federal and state courts, and have been quoted by the U.S. Supreme Court as an expert on medical device regulation. I understand that the federal regulation of the risks and benefits of medical devices such as LASIK equipment is a matter of substantial public concern and controversy.


I published my law review essay, AN EYE FOR AN EYE: FORESIGHT ON REMEDIES FOR LASIK SURGERY’S PROBLEMS, at 71 U. Cin. L. Rev. 541 (2002), as part of our Faculty Scholarship symposium issue.

3. I became aware of Mr. Morgan’s website,, upon the unsolicited recommendation of a person in California who had read my law review article and encouraged me to read Mr. Morgan’s website comments. I found the material posted on to be educational and useful, particularly for anyone considering having LASIK surgical procedures performed on themselves. I did an internet search using the search engine and believe that the numerical majority of the dozens of sites listed there are commercial vendors of LASIK products or surgeons providing LASIK.

4. After reviewing his site, I corresponded with Mr. Morgan and have encouraged Mr. Morgan to include my essay on his website, in order that persons considering Lasik may become aware of my perspective regarding various legal and regulatory problems involving LASIK surgery. I have provided Mr. Morgan with the electronic version of my essay for posting at his discretion. I have no financial interest in LASIK, have not been paid by Mr. Morgan or others related to LASIK, and had no prior knowledge of Mr. Morgan or of those to whom he makes reference in his website.

5. Although my law review article is legal scholarship directed particularly toward lawyers, I hope its opinions can also be part of the wider education of the public, since I consider public education to be a major responsibility of the legal profession, particularly for legal academics. As a scholar recognized in the field of medical device and products liability law, the general public’s awareness of product risks is an extremely important aspect of our protections as members of American society.

6. I believe that Mr. Morgan has an ample First Amendment right to exercise his freedom of speech on matters of public controversy, and to provide the public with information about LASIK, from his personally unique perspective as a victim.

Dated this 8th day of December, 2003 at Cincinnati, Hamilton County, Ohio.


Professor James O’Reilly

Stephen Barrett, MD then contacted professor O’Reilly, touted “Quackwatch” and, without revealing his marriage to Herbert Nevyas’ sister, castigated me, praised Herbert Nevyas, and asked professor O’Reilly to withdraw his declaration (emphasis added):

From: Stephen Barrett, M.D.


Sent: 12/31/2003 10:12 AM…

Dear Professor O’Reilly

I am writing in response to your declaration at

I have followed the LASIK situation very carefully because I write a college textbook that helps people learn how to make intelligent decisions about health matters…. About two months ago, Mr. Morgan notified me that he had created his site and expressed concern that I had an article by Dr. Nevyas on Quackwatch. (The article was prepared for my textbook.)…. You seem to be under the impression that the purpose of the site is to warn people about the potential dangers of LASIK surgery and that it provides an appropriate warning.

However, it seems to me that the primary purpose of the site is to put Dr. Herbert Nevyas and his daughter Anita Nevyas-Wallace, MD (who operated on Mr. Morgan) out of business.…. Dr. Herbert Nevyas is probably the most respected eye surgeon in Philadelphia.At the very least, you should withdraw your declaration….

Stephen Barrett, M.D.

Board Chairman, Quackwatch, Inc.

NCAHF Vice President and Director of Internet Operations

P.O. Box 1747,

Allentown, PA 18105

Telephone: (610) 437-1795

Professor O’Reilly investigated. He learned that Herbert Nevyas never did Lasik at any hospital, had ceased all hospital operations for over ten years, operated only in his own outpatient surgicenter, and advertised extensively. His operations were not subject to any peer review except by his wife (who never had an ophthalmology residency but was apprenticeship-trained by her husband). In turn, Herbert Nevyas did the “peer review” of his wife and daughter. This arrangement satisfied the law mandating peer review of outpatient surgicenters, but it also indicated that Dr. Barrett’s “college textbook that helps people learn how to make intelligent decisions about health matters” did not value peer review. In preaching the virtues of “probably the most respected eye surgeon in Philadelphia” to young college students in Allentown, a city merely 54 miles from Philadelphia (Rand-McNally), Dr. Barrett knowingly promoted a medical entrepreneur.

Professor O’Reilly decided that his declaration should not be withdrawn.. Dr. Barrett, after seven years and “further reflection,” and still without revealing that he is married to Herbert Nevyas’ sister, now writes Alexis Arena to purport, “I don’t recall the exact words, but he made it clear that his intention was to put the Nevyas’s out of business.”

Quackwatch, Quackwatch….

Conclusion – a question:

When a large law firm submits “earwitness” testimony to a trier of fact without revealing that the “earwitness” is brother-in-law and uncle to complainants (see p. 3 of Complainants’ Additional Submission), have those lawyers fulfilled their duty of candor?

Respectfully Submitted,

Dominic J. Morgan, Respondent

View the complete document HERE

On January 16, 2013, I sent the following to Professor Wilson who opined his decision on behalf of the NAF, to which I received no response:

Dominic J. Morgan

Sent via email 01/16/2013

Professor Darryl C. Wilson Stetson University College of Law 1401 61st Street South, Suite 213 Gulfport, FL 33707 727 562 7882


Dear Professor Wilson,

Your decision as with all decisions the National Arbitration Forum has ruled upon hopefully in the future should not entail prejudice to those filing the complaint.

In my response, I stated that complainants came before the forum with unclean hands and stand by my assertion, especially in light of the information I came upon in 2011:

The initial complaint was filed July 6, 2010. Less than 2 weeks after, 87 domains were registered by complainant’s grandson/son Jonathan Wallace (please see attached) however none of this was ever presented to the NAF or the courts because I did not find out until after the complainants refused to litigate.

I believe the NAF’s decision should be retracted however, it is highly unlikely due to the timeframe of this response and the prejudice shown by the NAF. Simply put, you and the forum have been duped. I hope in the future you rely on facts.


Dominic J. Morgan


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