KSL Recreation Management
Operations, LLC v. KSL Recreation Management Operations LLC
Claim Number: FA0612000876390
PARTIES
Complainant is KSL Recreation Management Operations,
LLC (“Complainant”), represented by Cynthia A. Casby, of Holland & Knight
LLP,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <klsresorts.com> and <kslresort.com>,
registered with Compana, LLC.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
Richard Hill as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on December 27, 2006; the
National Arbitration Forum received a hard copy of the Complaint on December 22, 2006.
On January 5, 2007, Compana, LLC confirmed by e-mail to the
National Arbitration Forum that the <klsresorts.com> and <kslresort.com>
domain names are registered with Compana, LLCc
and that the Respondent is the current registrant of the names. Compana, LLC
has verified that Respondent is bound by the Compana,
LLC 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 January 12, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of February 1, 2007 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@klsresorts.com and postmaster@kslresort.com
by e-mail.
A timely Response was received and determined to be complete on January 31, 2007.
On February 7, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Richard Hill as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Complainant, KSL Recreation Management Operations, LLC
("KSL") has been forced to name itself as both the Complainant and the
Respondent in this Complaint due to a recent change of registration of one of
the two disputed domain names in this action: <kslresort.com>.
The Complainant alleges that it is a victim of “cyberflying.” Cyberflying is the practice of changing the
registrant of a domain name before or during a UDRP proceeding in an attempt to
disrupt the proceeding and to circumvent 8(a) of the Policy.
Originally, the disputed domain names were registered by the notorious
cybersquatter, Manila Industries, Inc. ("
The Complainant noted
Following that letter,
Indeed, in Group Kaitu, LLC, Darkside Productions, Inc. v. Group
Kaitu LLC aka Manila Indus., Inc., D2005-1087 (WIPO Jan. 6, 2006), and High
Point Bank and Trust Company v. High Point Bank & Trust, FA 632711
(Nat. Arb. Forum Feb. 22, 2006),
In order to protect its trademark rights, the Complainant filed a Complaint
with the National Arbitration Forum on December 27, 2006, naming
The Complainant served the complaint on
As a consequence, the National Arbitration Forum required the Complainant
to delete
However, the Complainant is not in possession of these domain names at
this time, and requests an order of transfer to ensure that
The contact information in the current Whois record for the <kslresort.com> domain name
was copied from another of Complainant's domain names. It was not provided by Complainant.
Without access information, the Complainant cannot transfer the domain
name to another registrar nor change the DNS server to post its own web page at
the disputed domain names. Thus, this
Complaint is not moot. The disputed
domain names are still under the dominion and control of
The Complainant requests the Panel to issue an order to transfer the
disputed domain names, in order to be able to gain control of them.
The Complainant includes evidence and arguments to show that the
disputed domain names are confusingly similar to its marks,
that
For the reasons set forth below, this Panel considers that the
Complainant’s submissions regarding
B. Respondent
The Response, submitted (as noted above) by the Complainant repeats the
submissions contained in the Complaint and, therefore, it is not necessary to
repeat here the summary given above.
FINDINGS
The disputed domain names were originally
registered by Manila Industries, Inc. (“
In September 2006, the Complainant wrote a
cease and desist letter to
Subsequent to that letter,
In December 2006, the Complainant filed a
Complaint with respect to both disputed domain names.
Subsequent to the filing of that Complaint,
The Complainant is now the registrant of
record of the disputed domain names, as per the Whois records.
However, the Complainant does not have access
to the disputed domain names and is unable to change the web sites at the
disputed domain names.
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.
However, in the present case, it is not necessary to consider those
elements, because the original registrant (
A good discussion of an essentially identical case, and similar
reasoning by the Panel, can be found in High Point Bank and Trust Company v.
High Point Bank & Trust, FA 632711 (Nat. Arb. Forum Feb. 22, 2006).
This Panel interprets the Complainant’s submissions as a request for
declaratory judgment that (1) it is the rightful owner of the disputed domain
names and (2) it should have full control of the disputed domain names,
including the ability to change the web pages at the disputed domain names.
It is instructive to cite here from Group Kaitu, LLC, Darkside
Productions, Inc. v. Group Kaitu LLC, D2005-1087 (WIPO Jan. 6, 2006):
The
record before this Panel presents a virtual textbook case of “cyberflying” with
a disingenuous twist. Manila Industries,
Inc., being named as the Respondent in this case – and with knowledge of its
obligations under Paragraph 8(a) – proceeded without notification to either the
Complainants or to the Center to change the contact details of the
registrations to one of the Complainant’s contact details.
…
The
Respondent [
In accordance with 10(a) of the Rules, the Panel shall conduct
the administrative proceeding in such manner as it considers appropriate in
accordance with the Policy and these Rules.
The Panel finds nothing in the Rules that prevents a party from requesting
a declaratory judgment. Indeed, 3(a) of
the Rules provides that “any person or entity may initiate an
administrative proceeding by submitting a complaint” (emphasis added).
On the basis of the evidence submitted, the Panel agrees with the
Complainant’s request, and hereby declares that the Complainant is the rightful
owner of the disputed domain names and should have full control of the disputed
domain names, including the ability to change the web pages at the disputed
domain names.
In order to give operational force to this conclusion and declaration,
the Panel hereby orders that the disputed domain names be transferred to the
Complainant. A good precedent for this
approach can be found in High Point Bank and Trust Company v. High Point
Bank & Trust, FA 632711 (Nat. Arb. Forum, Feb. 22, 2006).
DECISION
Having considered the evidence, the Panel concludes that relief shall
be GRANTED.
Accordingly, it is Ordered that the <klsresorts.com> and <kslresort.com>
domain names be TRANSFERRED to Complainant.
Richard Hill, Panelist
Dated: February 20, 2007
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