1. Parties and Contested Domain Name
1.1
The Complainant is Commonwealth Hotels Inc., a corporation with an office
in Covington, Kentucky, United States of America.
1.2
The Respondent is CCD Internet of Manchester, England.
1.3
The disputed domain name is commonwealthhotels.com.
The Registrar for the domain name is Tucows.com.
1.4
This proceeding is pursuant to ICANN’s Uniform
Domain Name Dispute Resolution Policy (the
“Policy”) and ICANN’s Rules for
Uniform Domain Name Dispute Resolution Policy (the
“Rules”). The
Tucows.com Domain Name Registration Agreement regarding the commonwealthhotels.com
domain name subjects the Respondent to Tucows.com’s Dispute Policy, which
is currently the Policy.
2.
Procedural History
2.1
Based upon information provided by eResolution’s Clerk’s Office, the
procedural history regarding this matter is as follows:
2.1.1
The electronic version of the Complainant’s complaint form was filed
on-line through eResolution’s Web site on March 20, 2001. The hardcopy of the complaint form and annexes were received
by the Clerk’s Office on April 5, 2001. Payment
was received by the Clerk’s Office on March 30, 2001.
2.1.2
Upon receiving all the required information, eResolution’s Clerk’s
Office proceeded to: (i) confirm the identity of the Registrar for the contested
domain name; (ii) verify the Registrar’s Whois database and confirm all the
required contact information for the Respondent; (iii) verify if the
contested domain name resolved to an active Web page; and (iv) verify if the
complaint was administratively compliant.
2.1.3
The inquiry led eResolution’s Clerk’s Office to the following
conclusions: (i) the Registrar is Tucows.com.; (ii) the Whois database contained
all the required contact information; (iii) the contested domain name resolved
to an active Web page; and (iv) the complaint is administratively compliant.
2.1.4
On March 20, 2001, eResolution’s Clerk’s Office sent an email to the
Registrar to obtain a copy of the Registration Agreement.
The requested document was received on March 27, 2001.
2.1.5
eResolution’s Clerk’s Office then proceeded to send a copy of the
complaint form and the required cover sheet to the Respondent, in accordance
with paragraph 2(a) of the Rules. According to the postal tracking system, the documents were
delivered to the Respondent.
2.1.6
eResolution’s Clerk’s Office fulfilled all its
responsibilities under paragraph 2(a) of the Rules
in connection with forwarding the complaint
to the Respondent, and notifying the Complainant, the Registrar, and ICANN on April
9, 2001. That
date is the commencement date of this administrative proceeding.
2.1.7
The electronic version of the Respondent’s response
was filed on-line through eResolution’s Web site on April 30, 2001.
The hardcopy of the response was received by eResolution’s Clerk’s
Office on May 1, 2001.
2.1.8
On May 2, 2001, eResolution’s Clerk’s Office contacted Bradley J. Freedman and requested that he act
as Panelist in this proceeding.
2.1.9
On May 3, 2001, Bradley J. Freedman
agreed to act as Panelist in this proceeding and filed the necessary Declaration
of Independence and Impartiality.
2.1.10
On May 3, 2001, eResolution’s Clerk’s
Office forwarded a username and a password to Bradley J. Freedman, allowing him
to access the complaint form, the response form, and the evidence submitted by
the parties through eResolution’s Automated Docket Management System.
2.1.11
On May 3, 2001, the parties were
notified that Bradley J. Freedman had been appointed as Panelist in this
proceeding, and that a decision was to be, save exceptional circumstances,
handed down on May 17, 2001.
3.
Factual Background
3.1
The Panel proceeds on the basis of the following facts, which are
established by the evidence and submissions of the parties:
3.1.1
The Complainant has been in the business of hotel ownership and
management since 1986.
3.1.2
The Complainant uses the business name “Commonwealth Hotels, Inc.”,
and is the registered owner of a trademark comprised of a design and the words commonwealth
hotels, inc. The mark was
registered on the United States Patent and Trademark Office principal register
for use in association with “hotel management for others” services on
November 16, 1993, and the Certificate of Registration indicates the first use
of the mark to have been in September 1986.
3.1.3
The Complainant operates a Web site using the domain name
commonwealth-hotels.com.
3.1.4
The Respondent is in the business of offering Internet-related services,
including Web site design and development services.
The Respondent’s Web site describes some of its services as follows:
CCD has produced almost 160 bespoke Web Sites since we
started trading. Our expertise in this field is renowned and our design and
technical skills constantly abreast with all the latest developments. … Each
bespoke solution we offer is completely dependent on your goals. If your goals
are not yet fully defined, we can help you to qualify how the world wide web
will grow your business.
3.1.5
The Respondent registered the commonwealthhotels.com domain name
on August 11, 2000.
3.1.6
The Respondent does not carry on business under the name “Commonwealth
Hotels”, and does not use the commonwealth
hotels trademark in connection with any wares or services.
4.
Parties’ Contentions
4.1
The Complainant submits as follows:
4.1.1
The Complainant is the owner of the commonwealth
hotels, inc. trademark in the United States, and the commonwealthhotels.com
domain name is “virtually exact in nature” to the Complainant’s mark.
4.1.2
The Respondent has no rights or legitimate interests in respect of the commonwealthhotels.com
domain name because the Complainant is the owner of the commonwealth hotels, inc. trademark and the Respondent is not
in the hotel or hotelier business.
4.1.3
The Respondent registered and used the commonwealthhotels.com
domain name in bad faith because it intended to “reserve a block of common
names for the sole purpose of development and resale at a later date”.
4.2
The Respondent submits as follows:
4.2.1
The commonwealthhotels.com
domain name is not the same as the
Complainant’s commonwealth hotels, inc.
trademark. The Complainant is not a
registered company in the United Kingdom and the Complainant’s trademark is
not registered or known in the United Kingdom.
4.2.2
The Complainant has no business interest in the United Kingdom, and is
attempting to obtain the domain name to exploit the same opportunity as has been
identified by the Respondent.
4.2.3
The Respondent has a legitimate interest in respect of the domain name
because the Respondent is working on a business plan to use the commonwealthhotels.com
domain name in connection with the Commonwealth Games in its home town,
Manchester, England, in July 2002.
4.2.4
The Respondent has not registered and used the commonwealthhotels.com
domain name in bad faith because it intends to use the domain name in connection
with the Commonwealth Games. “Commonwealth”
is not a registrable trademark.
5.
Discussion and Findings
5.1
The Policy is narrow in scope.
It applies only to disputes involving alleged bad faith registration and
use of domain names – conduct commonly known as "cybersquatting" or
"cyberpiracy". The Policy
does not apply to other kinds of disputes between trademark owners and domain
name registrants. This reflects a
cautious approach to a novel form of Internet dispute resolution and the
balancing of a wide range of perspectives regarding the regulation of Internet
conduct. See Educational Testing
Service v. TOEFL, Case No. D2000-0044 (March 16, 2000); Quarterview v.
Quarterview Co., Case No. AF-0209 (March 16, 2000); Libro AG v. NA Global
Link Limited, Case No. D 2000-0186 (May 16, 2000); and the ICANN Second
Staff Report on Implementation Documents for the Uniform Dispute Resolution
Policy, October 24, 1999, www.icann.org/udrp/udrp-second-staff-report-24oct99.htm,
at paragraph 4.1(c).
5.2
The limited scope of the Policy is reflected in its provisions. Policy
paragraph 4(a) provides that the Policy applies only where a complainant
asserts that: (i) the registered domain name is identical or confusingly similar
to a trademark or service mark in which the complainant has rights; (ii) the
registrant 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.
5.3
The burden is on the Complainant to prove each of the three requirements
of Policy paragraph 4(a). It is not sufficient for the Complainant to make
assertions without providing proof. See
Radio Globo SA v. Diogo Pimentel, Case No. D2000-1705
(Jan. 31, 2001).
(i)
The Complainant’s Trademark Rights
5.4
The Complainant asserts that it is the owner of the commonwealth
hotels, inc. trademark registered in the United States, and that it uses
that mark in association with hotel ownership and management.
The Complainant’s assertions in this regard are supported by
documentary evidence, and are not disputed by the Respondent.
5.5
The Respondent argues that the Complainant does not have any trademark
rights in the United Kingdom. However,
the Policy does not require that a complainant’s trademark rights arise
in the same jurisdiction in which the respondent carries on business.
The fact that a complainant and respondent carry on business in different
jurisdictions may be relevant to the other two requirements of the Policy
– the respondent’s rights and legitimate interests in the domain name and
the respondent’s bad faith – but that fact is not relevant to the first
element of the Policy.
5.6
Accordingly, the Panel finds that the Complainant has rights in the commonwealth hotels, inc. trademark.
5.7
The Policy requires that the commonwealthhotels.com domain
name be “identical or confusingly similar” to the Complainant’s trademark.
The Complainant asserts that the challenged domain name is “virtually
exact in nature” to its trademark. The
Respondent disagrees.
5.8
When comparing a challenged domain name and a trademark, the addition of
the .com suffix is irrelevant for the purpose of determining whether the
domain name it is identical or confusingly similar to the trademark.
See Rollerblade Inc. v. Chris McGrady, Case No. D2000-0429 (June
25, 2000); and Nintendo of America Inc. v. Alex Jones, Case No.
D2000-0998 (November 17, 2000). Rather, one looks to the second-level domain for such a
determination, since the .com suffix is merely descriptive of the
registry services and is not an identifier of a source of goods or services.
See Experience Hendrix LLC v. Denny Hammerton and the Jimi Hendrix Fan
Club, Case No. D2000-0364 (August 2, 2000).
5.9
The mere omission of spaces between the components of a trademark when
used in a domain name does not mean that the domain name and the mark cease to
be identical. The omission of
spaces is simply a function of the technological limitations of domain names,
and should be disregarded when determining whether the domain name is identical
or confusingly similar to a mark. See
for example, Blue Cross and Blue Shield Association and Trigon Insurance
Company Inc. d/b/a Blue Cross Blue Shield v. InterActive Communications Inc.,
Case No. D2000-0788 (August 28, 2000).
5.10
Design
elements cannot be captured in a domain name.
Accordingly, the logo portion of a complainant's trademark is irrelevant
for the purpose of determining whether a challenged domain name and trademark are identical or
confusingly similar. See Football
Club des Girondins de Bordeaux v. Arr, Case No. D2000-0149 (May 19, 2000); General
Machine Products Company Inc. v. Prime Domains, Case No. NAF FA0001000092531
(January 26, 2000); and Packaging World Inc. v. Zynpak Packaging Products
Inc., Case No. AF-0233 (July 28, 2000).
5.11
Aside from the design
element, spaces and punctuation of the Complainant’s commonwealth
hotels, inc. trademark, the only difference between the challenged domain
name and the Complainant’s trademark is the word “Inc.”.
5.12
The Policy and
the Rules do not provide any guidance with respect to the test to be
applied regarding the “confusingly similar” criterion of the Policy.
There is an inconsistency in previous decisions in this regard.
Some panels have undertaken a literal comparison of the domain name and
the trademark, and have not considered whether there is any source confusion.
Other panels have considered whether there is source confusion and have
undertaken a “likelihood of confusion” analysis as required by American
trademark law, which involves a consideration of all of the circumstances
including the strength of the complainant’s mark, the sophistication of likely
consumers, and the nature of the wares and services with which the domain name
and conflicting mark are used. See Smoky
Mountain Knife Works v. Deon Carpenter, Case No. AF-230 (July 3, 2000); Newport
News Inc. v. VCV Internet, Case No. AF-0238 (July 18, 2000); Wal-Mart
Stores Inc. v. Walsucks and Walmarket Puerto Rico, Case No. D2000-0477 (July
20, 2000); Wal-Mart Stores Inc. v. Richard MacLeod d/b/a For Sale, Case
No. D2000-0662 (September 19, 2000); and Nicole Kidman v. John Zuccarini,
d/b/a Cupcake Party, Case No. D2000-1415 (January 23, 2001).
5.13
The Panel considers the appropriate test for “confusing similarity”
to be a literal comparison of the challenged domain name and conflicting mark.
This view is supported by the following considerations:
(a) The
language of Policy paragraph 4(a) should be interpreted in a purposive
manner consistent with the Policy’s remedial nature and objective – to
prevent the extortionate behaviour known as “cybersquatting”.
(b)
The language of Policy paragraph 4(a) does not invoke a
“likelihood of confusion” test, as contrasted with Policy paragraph
4(b)(iv) which expressly refers to a “likelihood of confusion with the
complainant's mark as to the source, sponsorship, affiliation, or endorsement of
your web site or location or of a product or service on your web site or
location” as an indication of bad faith domain name use.
(c)
The Policy is international and, in the absence of express
language, it is inappropriate to import into Policy paragraph 4(a) a test
that may not exist under national trademark laws other than those of the United
States and England.
(d)
The procedure contemplated by the Policy is not well-suited to the
kinds of difficult factual issues presented by a conventional likelihood of
confusion analysis. In particular,
the Policy is intended to be a relatively quick and inexpensive process,
panels must make factual determinations based upon written submissions and
documentary evidence, complainants have no right of reply without panel
permission, and parties are often not represented by counsel (as in this case).
5.14 Applying the literal
comparison test, the Panel finds that the commonwealthhotels.com domain
name is confusingly similar to the Complainant’s trademark.
(ii)
The Respondent’s Rights and Legitimate Interests
5.15 Policy paragraph
4(a)(ii) requires the Complainant to prove that the Respondent has no rights or
legitimate interests in the commonwealthhotels.com domain name.
The burden on the Complainant in this regard is relatively light,
however, because the nature of the Respondent’s rights or interests, if any,
in the domain name lies most directly within the Respondent’s knowledge.
See Packaging World Inc. v. Zynpak Packaging Products Inc., Case
No. AF-0233 (July 28, 2000); Educational
Testing Service v. Netkorea Co., Case No. D2000-0087 (July 3, 2000); Grove Broadcasting Co. Ltd. v. Telesystems
Communications Limited, Case No. D2000-0158 (May 9, 2000); and Nicole Kidman v. John
Zuccarini, d/b/a Cupcake Party, Case No. D2000-1415 (January 23, 2001).
5.16
Paragraph 4(c) provides that the Panel shall find that the Respondent has
legitimate rights or interests in the commonwealthhotels.com domain name
if, on the evidence:
(i) before
any notice to the Respondent of the dispute, the Respondent used, or made
demonstrable preparations to use, the commonwealthhotels.com domain name
or a name corresponding to the commonwealthhotels.com domain name in
connection with a bona fide offering of goods or services; or
(ii) the
Respondent has been commonly known by the commonwealthhotels.com domain
name, even if it has acquired no trademark or service mark rights; or
(iii) the Respondent
is making a legitimate noncommercial or fair use of the commonwealthhotels.com
domain name, without intent for commercial gain to misleadingly divert consumers
or to tarnish the Complainant’s trademark or service mark.
5.17
The Complainant contends that the Respondent is not in the hotel or
hotelier business, and is not conducting, and never has conducted, any business
under any trademark that is the same or similar to the commonwealthhotels.com
domain name.
5.18
The Respondent acknowledges it is not a hotelier and does not operate as
one, but asserts that it registered the commonwealthhotels.com
domain name for use in
connection with the Commonwealth Games in Manchester in July 2002.
The Respondent contends that it was involved in “a strategic proposal
with the organizers of the Commonwealth Games” and provided the Panel with a
copy of a “Commonwealth Games Project Agenda”.
However, that document is undated and makes no reference to the commonwealthhotels.com
domain name.
5.19
The registration and use of a domain name is not illegitimate merely
because the domain name is not derived from a trademark or trade name used by
the registrant. See CRS Technology Corporation v. Condenet Inc., Case
No. FA0002000093547 (March 28, 2000). On
the other hand, the registration of a domain name is not, by itself, sufficient
to establish rights or legitimate interests in the domain name.
See Barney’s Inc. v. BNY Bulletin Board, Case No. D2000-0059
(April 2, 2000); and Emeril Legasse v. VPOP Technologies, Case No.
FA0003000094373 (May 8, 2000). Absent
trademark or trade name rights held by the registrant, there must be something
more, such as demonstrable preparations to use the domain name in good faith,
before the registrant can assert rights or legitimate interests in the domain
name within the meaning of the Policy.
Speculation in domain names is not recognized by the Policy as a
legitimate interest. See Libro
AG v. NA Global Link Limited, Case No. D 2000-0186 (May 16, 2000); and VZ
VermogensZentrum AG v. Anything.com, Case No. D2000-0527 (August 22, 2000).
5.20 Regarding Policy
paragraph 4(c)(i), the Panel is not satisfied that before any notice to the
Respondent of this dispute the Respondent used, or made demonstrable
preparations to use, the commonwealthhotels.com domain name or a name
corresponding to the commonwealthhotels.com domain name in connection
with a bona fide offering of goods or services.
The Respondent has provided insufficient evidence to support a finding
that it had been involved in “demonstrable preparations” to use the domain
name before it received notice of this dispute.
Also, the
Panel notes that on March 2,
2001 the Respondent sent an email to the Complainant advising that the
Respondent had “decided not to progress our commonwealth idea”, and was
“considering offering the domain discussed for sale”.
(This email and others are discussed below.)
5.21
In considering this matter, the Panel has, on its own initiative,
accessed the Internet to determine the manner in which the commonwealthhotels.com
domain name is currently being used. The
domain name now resolves to a static Web site entitled “Commonwealth
Hotels”, which displays a photograph of a hotel and the following text:
Your
guide for Hotels in Manchester, UK during the Commonwealth Games.
If you are a Hotel in Manchester and you have accommodation available
during the games, let CCD know and we will spotlight you on this web site.”
This use of the domain name is not referenced in the parties’
submissions, and the Panel infers that it commenced after this proceeding was
initiated and submissions were delivered to the Panel.
The recent use of the commonwealthhotels.com
domain name, while consistent with the Respondent’s submissions, does not
satisfy Policy paragraph 4(c)(i). See
Corinthians Licenciamentos LTDA v. David Sallen, Case No. D2000-0461
(July 17, 2000); and e-Duction Inc. v. Zuccarini, Case No. D2000-1369
(February 5, 2001).
5.22 Regarding Policy
paragraph 4(c)(ii), the Panel finds that the Respondent has not been commonly
known by the commonwealthhotels.com domain name.
5.23 Regarding Policy
paragraph 4(c)(iii), the Respondent has asserted an intention to use the commonwealthhotels.com
domain name for a commercial purpose but in a manner that is arguably
descriptive rather than source-identifying.
However, the Respondent did not commence such use until after the
complaint was filed and after advising the Complainant that the Respondent had “decided
not to progress our commonwealth idea”. In
the circumstances, the Panel is not satisfied that the Respondent has engaged in
a “fair use” of the domain name within the meaning of Policy paragraph 4(c)(iii).
5.24 For these reasons,
the Panel finds that the Respondent has no rights or legitimate interests in the
commonwealthhotels.com domain name.
(iii)
Bad Faith Registration and Use
5.25 It is not enough for
the Complainant to establish that the Respondent does not have any rights or
legitimate interests in the commonwealthhotels.com domain name.
Policy paragraph 4(a)(iii) requires the Complainant to assert and
prove that the Respondent registered and has used the commonwealthhotels.com
domain name in bad faith.
5.26
Policy paragraph 4(b) provides that the following circumstances
are deemed to be evidence that a respondent has registered and used a domain
name in bad faith:
(i) circumstances
indicating that the respondent has registered or has acquired the domain name
primarily for the purpose of selling, renting, or otherwise transferring the
domain name registration to the complainant who is the owner of the trademark or
service mark or to a competitor of the complainant, for valuable consideration
in excess of its documented out-of-pocket costs directly related to the domain
name or
(ii) the
respondent has 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent
has registered the domain name primarily for the purpose of disrupting the
business of a competitor; or
(iv) by using the
domain name, the respondent has intentionally attempted to attract, for
commercial gain, Internet users to its 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 its Web site or location or
of a product or service on its Web site or location.
5.27
The Complainant contends that the Respondent registered and is using the commonwealthhotels.com
domain name in bad faith
because, in addition to its lack of legitimate interests in the domain name, the
Respondent intended to “reserve a block of common names for the sole purpose
of development and resale at a later date.”
The Complainant has not provided any evidence of the alleged domain name
registrations by the Respondent. Nevertheless,
in support of its allegation, the
Complainant relies upon the reference on the Respondent’s Web site to the
creation of “bespoke” Web sites, which the Complainant says means “to
engage or claim in advance; to reserve”.
5.28
The Respondent denies that it creates Web sites on speculation, and
explains that its Web site reference to “bespoke” Web sites means that it
designs Web sites to meet its clients’ “unique or individual” needs.
The
Respondent’s explanation is consistent with the Panel’s understanding of the
meaning of “bespoke”. Nevertheless,
the Panel notes that the commonwealthhotels.com
domain name is currently used
by the Respondent in connection with what purports to be a portal Web site that
invites Manchester hotels to contact the Respondent in order to be highlighted
on the Web site. There are no
hotels referenced on the Web site.
5.29 There is no evidence
that the Respondent knew or ought to have known of the Complainant or its
trademark. The
Respondent and the Complainant are not competitors.
The Complainant’s registration of its trademark in the United States
does not constitute constructive notice of the trademark to persons in other
countries. The Policy does
not require a person registering a domain name to conduct a prior trademark
search in every country of the world for conflicting trademark rights.
See Toronto Star Newspapers Limited v. Virtual Dates Inc., Case
No. D2000-1612 (February 6, 2001) and Toronto Star Newspapers Limited v. Elad
Cohen, Case No. D2000-0006 (January 22, 2001).
5.30
The Complainant has
provided the Panel with copies of correspondence between the parties regarding
the challenged domain name, presumably to indicate that the Respondent
registered the domain name primarily for the purpose of selling, renting or
otherwise transferring the domain name registration to the Complainant or its
competitors. See Policy paragraph 4(b)(i).
The documents indicate the following:
(a)
The correspondence was initiated by the Complainant in October 2000, when
it sent a letter to the Respondent inquiring of the Respondent’s interest in
“Commonwealth Hotels”.
(b)
The Respondent did not respond to the Complainant’s October 2000
letter, and the Complainant sent a follow-up letter on January 24, 2001.
(c)
On January 24, 2001 there appears to have been a telephone conversation
between the parties. The Panel was
not informed of the substance of that telephone conversation.
(d)
On March 2, 2001 the Respondent sent an email to the Complainant advising
that the Respondent had “decided not to progress our commonwealth idea”, and
was “considering offering the domain discussed for sale”.
The Respondent indicated that they would consider “realistic offers”,
and would make the domain name available to the market in 7 days time if they
did not hear from the Complainant. The Complainant acknowledged receipt of that
email.
(e)
On March 6, 2001 the Respondent sent another email to the Complainant as
follows:
We
are preparing to offer this name via auctions which will be available globally.
I am concerned that a competitor to yourselves may purchase this name.
Have you an offer?
(f)
On March 6, 2001 the Complainant responded with an offer to purchase the
domain name for $1,000.
(g)
On March 8, 2001, the Complainant sent an email to the Respondent asking
for a reply to its offer. The
Complainant also asserted trademark rights in the commonwealth
holdings name.
(h)
On March 12, 2001, the Respondent sent an email to the Complainant
denying any legal wrongdoing, and making a $10,000 counter-offer on a “without
prejudice” basis.
(i)
The Complainant commenced this proceeding on March 20, 2001.
5.31
The Panel notes that
the Respondent’s March 8th
email was written on an express “without prejudice” basis after the
Complainant asserted its trademark rights.
Other panels have held that it is not appropriate for a panel to consider
evidence of bona fide without prejudice negotiations.
Zero International Holding GmbH & Co Kommanditgesellschaft v.
Beyonet Services, Case No. D2000-0161 (May 12, 2000); CRS Technology
Corporation v. Condenet Inc., Case No. FA0002000093547 (March 28, 2000); and
LifePlan v. LifePlan, Case No. FA0005000094826 (July 13, 2000).
The Respondent did not object to the Panel considering evidence of its
without prejudice communications. In
the circumstances, the Panel need not make an evidentiary ruling regarding this
matter.
5.32
Aside from the negotiations between the parties, there is no evidence that that the Respondent’s
activities regarding the registration and use of the commonwealthhotels.com
domain name was directed in
any way towards the Complainant. While
not determinative, the Panel notes that the Respondent did not initiate contact
with the Complainant and did not respond to the Complainant’s initial inquiry.
In addition, the Respondent’s explanation that it registered the domain
name to make a profit from its descriptive character and its connection to the
2002 Commonwealth Games in Manchester, England is not unreasonable.
Speculation in generic or descriptive domain names is not sufficient to
establish a right or legitimate interest in a domain name within the meaning of
the Policy, but it does not constitute bad faith.
See Libro AG v. NA Global Link Limited, Case No. D 2000-0186 (May
16, 2000); VZ VermogensZentrum AG v. Anything.com, Case No. D2000-0527
(August 22, 2000); Toronto Star Newspapers Limited v. Virtual Dates Inc.,
Case No. D2000-1612 (February 6, 2001); and Radio
Globo SA v. Diogo Pimentel,
Case No. D2000-1705 (January 31,
2001).
5.33
In some
circumstances, negotiations regarding the sale of a challenged domain name and
proposals made in such discussions might be evidence of bad faith registration
and use. In this case, some of the
Respondent’s negotiation statements – particularly the 7 day offer, the
reference to the Complainant’s competitors, and the $10,000 counter-offer
– are troubling. Nevertheless,
in the circumstances and in the absence of any other evidence of bad faith,
those statements are not sufficient to prove that the Respondent registered the
domain name “primarily” for the purpose of selling, renting, or otherwise
transferring the domain name registration to the Complainant or a competitor,
within the meaning of Policy paragraph 4(b)(i).
5.34 For these reasons, the Panel concludes that the Complainant has not proven that the Respondent registered or has used the commonwealthhotels.com
domain name in bad faith.
6. Conclusions
6.1
The Complainant has established that it has legitimate rights in its commonwealth
hotels trademark and that the Respondent does not have any rights or
legitimate interests in the commonwealthhotels.com domain name.
However, the Complainant has not proven that the Respondent registered or
has used the commonwealthhotels.com domain name in bad faith.
Accordingly, the Complainant has not established all of the requirements
set forth in Policy paragraph 4(a).
6.2
Accordingly, the Panel dismisses the complaint and denies the
Complainant's request that registration of the commonwealthhotels.com
domain name be transferred to the Complainant.
6.3
As noted above, the Policy is narrow in scope, the issues
considered by the Panel are restricted, and the Panel has based its decision on
the parties’ written submissions and documentary evidence.
The Panel’s decision should not be read as a substantive determination
on the merits of any trademark infringement or other dispute between the parties
regarding the Respondent’s registration and use of the commonwealthhotels.com
domain name.
_____________________________________________
(s)
Bradley J. Freedman |
Presiding
Panelist |
Vancouver,
British Columbia, Canada |
17th
day of May 2001 |
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