CT Woodhaven Country Club LLC v. Robert
Reynolds
Claim Number: FA0503000436770
PARTIES
Complainant
is CT Woodhaven Country Club LLC (“Complainant”),
represented by Mike Abee, 67-603 30th Ave., Cathedral City, CA
92234. Respondent is Robert Reynolds (“Respondent”), Box
13702, Palm Desert, CA 92255.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <woodhavencountryclub.com>,
registered with Register.com.
PANEL
The
undersigned certifies that he has acted independently and impartially and to
the best of his knowledge has no known conflict in serving as Panelist in this
proceeding.
Hon.
Sir Ian Barker, QC
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on March
7, 2005; the National Arbitration Forum received a hard copy of the Complaint
on March 11, 2005.
On
March 15, 2005, Register.com confirmed by e-mail to the National Arbitration
Forum that the domain name <woodhavencountryclub.com>
is registered with Register.com and that the Respondent is the current
registrant of the name. Register.com
has verified that Respondent is bound by the Register.com registration
agreement and has thereby agreed to resolve domain-name disputes brought by
third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution
Policy (the “Policy”).
On
March 21, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of April 11, 2005
by which Respondent could file a Response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts,
and to postmaster@woodhavencountryclub.com by e-mail.
A
timely Response was received and determined to be complete on March 30, 2005.
An
Additional Submission was received from the Complainant without payment of the
required filing fee. The Panel has
decided to admit this submission in the interests of justice, despite the fact
that it did not comply with Forum Supplemental Rule 7.
On April 7, 2005, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Hon. Sir Ian Barker QC as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
This Panel cannot recollect seeing a
Complaint in any proceeding under the Policy as bereft of information or
argument as the Complaint under consideration.
All Complainant gives as its grounds for
the Complaint are:
(a) “Woodhaven
Country Club is the trademark.” “It is
a golf club with members with a full service membership.”
(b) The
Club name is identical to the disputed domain name.
(c) The disputed domain name has been
procured by Respondent who refuses to give Complainant control and ownership of
it unless Complainant uses Respondent’s computer services.
B. Respondent
(a) Complainant has no registered trademark.
(b) There are three other “Woodhaven Country
Clubs” in other parts of the United States and this Complainant has no
exclusive rights to the name.
(c) The Respondent denies the allegation in
(c) above.
(d) The Respondent’s domain lists information
on all Woodhaven Country Clubs nationwide with descriptions of their respective
golf courses. He does not profit from
the website.
C. Complainant’s Additional Submission
(a) Respondent
has never owned a country club called Woodhaven or otherwise.
(b) Complainant admits it does not own a
registered trademark, but ownership of the Club gives a right and legitimate
interest in the name.
(c) Complainant
rejects Respondent’s claim that he does not profit from the website using the
disputed domain name.
FINDINGS
(a)
Complainant
does not own a registered trademark for the disputed domain name.
(b) Complainant
has produced no evidence as would justify a claim for a common-law mark in the
disputed domain name.
(b)
There are
at least three other Woodhaven Country Clubs in other parts of the United
States. This fact alone would make a
common-law mark very difficult to assert.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a
complaint on the basis of the statements and documents submitted in accordance
with the Policy, these Rules and any rules and principles of law that it deems
applicable.”
Paragraph
4(a) of the Policy requires that the Complainant must prove each of the
following three elements to obtain an order that a domain name should be
cancelled or transferred:
(1)
the domain
name registered by the Respondent is identical or confusingly similar to a
trademark or service mark in which the Complainant has rights;
(2)
the
Respondent has no rights or legitimate interests in respect of the domain name;
and
(3)
the domain
name has been registered and is being used in bad faith.
The Complaint must fail because the first
requirement under Paragraph 4(a) of the Policy has not been established.
Complainant’s only argument under Policy
¶4(a)(i) is the following statement: “Club name is identical to Domain name
being pursued.” Such statement without
more, fails adequately to discharge a complainant’s burden under Policy
¶4(a)(i) to show that the domain name in question is identical or confusingly
similar to a mark in which the complainant has rights. See TotalFinalElf E&P USA, Inc. v. Farnes, FA 117028 (Nat. Arb.
Forum Sept. 16 2002) (finding that, in order to bring a claim under the Policy,
the complainant must first establish a prima
facie case. The complainant’s
initial burden is to provide proof of “valid, subsisting rights in a mark that
is similar or identical to the domain name in question”).
Nor is there any evidence as would
justify a claim by Complainant for a common-law mark in the disputed domain
name. The test for common-law marks is
quite stringent, as can be seen from a variety of decisions. See, e.g., Cobos v. West, North, D2004-0182
(WIPO June 21, 2004); see also BAA
plc v. Larkin, D2004-0555 (WIPO Nov. 11, 2004).
Accordingly, Complainant having failed to
establish the first criterion under the Policy, it is not necessary to consider
the remaining two criteria. On the
scant evidence proffered by Complainant, its chances of establishing the other
two criteria are not hopeful.
DECISION
The
Panel therefore concludes that relief shall be DENIED.
Hon Sir Ian Barker QC, Panelist
Dated: April 21, 2005
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