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Generic Top Level Domain Name (gTLD) Decisions |
DECISION
Stoney River Legendary Management v. Chrystal Lord
Claim Number: FA0008000095398
PARTIES
The Complainant is Stoney River Legendary Management Rodney Croteau, Alpharetta, GA, USA ("Complainant"). The Respondent is Chrystal Lord, Alpharetta, GA, USA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is "STONEYRIVER.COM", registered with Network Solutions Inc ("NSI").
PANELIST(s)
The Arbitrator, Daniel B. Banks, Jr., certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as the panelist in this proceeding.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 08/09/2000; The Forum received a hard copy of the Complaint on 08/14/2000.
On 08/16/2000, NSI confirmed by e-mail to The Forum that the domain name "STONEYRIVER.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.
On 08/17/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 09/06/2000 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@stoneyriver.com by e-mail. The Respondent did file a response.
On September 12, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed Daniel B. Banks, Jr. as Arbitrator.
The Arbitrator received information that was not submitted in accordance with the rules and did consider that material.
RELIEF SOUGHT
The Complainant requests that the domain name be transferred from the Respondent to the Complainant.
PARTIES’ CONTENTIONS
1 - The domain name stoneyriver.com is identical to the Complainant's registered service mark, Stoney River.
2 - The Respondent purchased the domain name from another individual while acting as an agent for the owner of the Complainant, David Rowe.
3 - The domain name was purchased for the Complainant to be used for the company web site and corporate e-mail extensions.
4 - At the time of registration, Respondent registered the domain under her own name but made it clear that it was purchased for use of the Complainant.
5 - After discovering that the domain name was registered in Respondent's name, Complainant began a series of e-mail correspondence in an effort to get Respondent to transfer ownership of the name to Complainant.
6 - After initially indicating the she would transfer ownership of the domain name to Complainant, Respondent, on January 21, 2000, reversed her position and stated that she would not be transferring the domain name to Complainant but would be maintaining ownership of the domain name.
7 - Respondent then advised Complainant that she would be accepting offers from two out of state companies who had expressed an interest in purchasing the domain name.
8 - Complainant states that they were willing to pay her out of pocket expenses but she was looking for something in the range of $10,000 to $14,000 for the name.
9 - Later, on February 7, 2000, Respondent again reversed her position and stated that she would transfer ownership of the domain name to Complainant.
10 - Complainant then began using the domain name stoneyriver.com in connection with its business enterprises, apparently under a license granted by Respondent but without transfer of ownership.
11 - After the expiration of a few months, the domain name had still not been transferred to Complainant and Respondent, on August 4, 2000, notified Complainant that the domain name stoneyriver.com was currently for sale.
12 - Complainant also received a voice mail that it had two hours to respond to her if we were interested in buying the domain name.
13 - Complainant's representative called Respondent and was informed that the past offers of $10,000 to $14,000 were not enough and that the name was worth much more now that O'Charley's had purchased Stoney River Legendary Steaks.
14 - Complainant then filed this action and received notification from the Respondent that she would not be selling the domain name but would be keeping it for her own use.
15 - Complainant states that Respondent has no rights or legitimate interests in the domain name; that she has never been commonly known by the domain name; and, has not used, or made preparations to use the domain name in connection with a bona fide offering of goods or services.
16 - Complainant states that Respondent has registered the name in bad faith for the purpose of realizing financial gain by the selling or leasing the domain name for more than her out of pocket costs.
B. Respondent:
1 - David Rowe, mentioned in the Complaint, is the owner of Rowe Investment Corporation and was part owner of Brookstone Management Corporation, which owned Stoney River Legendary Steaks.
2 - Respondent and David Rowe had a personal relationship for some period of time and during that relationship, Respondent purchased a number of domain names for Mr. Rowe including Stoney-river.net, Stoneyriver.net, Stoney-river.com, Stoneyriversteaks.com, Brookwoodgrill.net, Thebrookwood.net, Thebrookwood.com, and Brookwoodgrill.com. These were purchased in October 1998.
3 - At the time the above-mentioned domain names were purchased, the domain name stoneyriver.com was not available.
4 - Respondent was named as the contact person for the domain names purchased in 1998 because there was no one else to name at that time.
5 - None of the domain names purchased by Respondent for Mr. Rowe were ever used by Stoney River Legendary Steaks.
6 - During their relationship, Respondent spent time at Stoney River Farm in Virginia, which is owned by Mr. Rowe.
7 - Respondent states that she fell in love with the farm and the quaint town tucked away in a charming Virginia valley.
8 - It was at this time that Respondent decided to purchase "stoneyriver.com" to use to post family photographs of visits to Stoney River Farm.
9 - Respondent shared this idea with Mr. Rowe who stated that he thought that was a fine idea.
10 - Respondent denies that she purchased the name on behalf of Complainant or that she ever agreed to transfer the name without compensation.
11 - Respondent also denies that she ever sought $10,000 or $14,000 for payment of the domain name.
12 - Respondent states that she was pressured to turn over the domain name and initially agreed to transfer the name as a way to "keep the peace".
12 - Respondent denies that she ever stated that the domain name was worth more now that a large company had purchased Stoney River Legendary Steaks.
13 - Respondent admits that she claimed that the domain name had a dollar value and that it would not be good sense or good business to just give it away, especially considering her personal intentions.
14 - Respondent states that she is not using "stoneyriver.com" as a trademark but simply as a web site to post family photographs.
15 - With respect to Stoney River Legendary Steaks, Respondent states that they do not market steaks to the world; they don't ship their products; they don't accept orders over the telephone or Internet; they have never conducted a marketing plan; and there are only two Stoney River Legendary Steak restaurants in the world.
FINDINGS
After consideration of the foregoing, the Arbitrator finds as follows:
1 - That the domain name in question is identical to Complainant's registered service mark but not identical to the name under which Complainant does business which is Stoney River Legendary Steaks.
2 - That the evidence does not support a finding that Respondent has no rights or legitimate interest in respect of the domain name.
3 - That the evidence does not support a finding that the Respondent has registered and is using the domain name in bad faith.
DISCUSSION
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("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.
Identical and/or Confusingly Similar
The Respondent is claiming that the domain name contains generic marks and is not identical or confusingly similar to the Complainant’s marks. See Parachute, Inc. v. Jones, FA 94947 (Nat. Arb. Forum July 12, 2000) (denying transfer of the domain name because the Respondent’s use of the mark, "parachute"). As stated above, the domain name in question is identical to Complainant's registered service mark but is not identical to the name under which Complainant does business which is Stoney River Legendary Steaks. Also, it is not likely that there would be confusion with the Respondent's web site and the Complainant's restaurant business.
Rights or Legitimate Interests
The undersigned finds that the Respondent has rights and a legitimate interest in the domain name as a web site for the posting of family pictures of vacations to Stoney River Farm. This is a legitimate and fair noncommercial use. Policy ¶ 4.c.(iii). See Casual Corner Group, Inc. v. Young, FA 95112 (Nat. Arb. Forum Aug. 7, 2000) (finding that Respondent has rights and legitimate interests in the domain name).
Registration and Use in Bad Faith
The undersigned finds that the Respondent did not register nor is she using the domain name in bad faith. The Respondent and the former president of Brookstone Management, Mr. Rowe, were personal friends. The Respondent spent much time at Mr. Rowe’s Virginia farm, named Stoney River Farm. The Respondent contends that she registered the domain name with Mr. Rowe’s permission, to post pictures of family visits to the farm.
After Mr. Rowe left the company, he asked the Respondent if she would consider transferring the domain name in question to the Complainant. The Respondent stated that she felt pressured into the domain name transfer and agreed to transfer the domain name in return for compensation. When no compensation was ever given to the Respondent, she revoked her offer to transfer the domain name.
Given the facts above, the undersigned determines that the domain name was not registered and used in bad faith. See Entercolor Technologies Corp. v. Gigantor Software Dev., Inc., FA 93635 (Nat. Arb. Forum Mar. 21, 2000) (finding that the Respondent did not register or use the domain name in bad faith); LifePlan v. Life Plan, FA 94826 (Nat. Arb. Forum July 13, 2000) (finding that "the mere offering (of the domain name for sale), without more, does not indicate circumstances suggesting that Respondent ‘registered the domain name primarily for the purpose of selling,…’ the domain name to the Complainant); Canal Image UK, Ltd. v. Vanitymail Services, Inc., FA 94946 (Nat. Arb. Forum July 18, 2000) (finding no bad faith even though the Respondent offered to sell the domain name for $500,000 in a dubious attempt to dissuade the Complainant from further inquiry into purchasing the domain name in question).
The UDRP is of limited application and Complainant may be entitled to relief in other forums based on alleged agency purchase of the domain name or various trademark actions. See Commercial Publishing Co. v. EarthComm, Inc., FA 95013 (Nat. Arb. Forum July 20, 2000) (stating that the Policy is intended to resolve only a narrow class of cases).
DECISION
It is the decision of the Arbitrator that the Complainant's request that the domain name "stoneyriver.com" be transferred to Complainant is denied.
Honorable Daniel Banks
Dated September 21, 2000
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