Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Love Your Neighbor Corp, Detroit, MI, USA ("Complainant"). The Respondent is LOVEARTH.NET, Siesta Key, FL, USA ("Respondent") represented by Mark Elsis.

The domain name at issue is "lovethyneighbor.net", registered with Internet Domain Registrars.

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.

Daniel B. Banks, Jr., is the Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on May 14, 2001; the Forum received a hard copy of the Complaint on May 16, 2001.

On May 14, 2001, Internet Domain Registrars confirmed by e-mail to the Forum that the domain name "lovethyneighbor.net" is registered with Internet Domain Registrars and that the Respondent is the current registrant of the name. Internet Domain Registrars has verified that Respondent is bound by the Internet Domain Registrars 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 May 16, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 5, 2001 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@lovethyneighbor.net by e-mail.

A timely response was received and determined to be complete on June 5, 2001.

On June 11, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Daniel B. Banks, Jr., as Panelist.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

The domain name, lovethyneighbor.net is a universal generic phrase derived from The Bible and, thus, is in the public domain. Also, Love Thy Neighbor was a best selling book, a movie, and the name of two weekly TV shows.

Respondent registered the domain name lovethyneighbor.net on April 30, 1999. There was a clerical error and it was mistakenly registered under eDomainBroker.com. It should have been registered under Lovearth.net. Prior to registration of the disputed domain name, a trademark search showed no matching trademarks for this phrase. In fact, Complainant does not have a trademark for Love Thy Neighbor. Her trademark is for Love Thy Neighbour.

LoveThyNeighbor.net is to be used for humanitarian purposes only, as are all the sites in the Lovearth Network. Complainant contacted Respondent and inquired about the domain name in November of 1999. It was only then that Respondent chose to put out a price quote. They used their for-profit corporation that sells generic domain names, Gods-Domains.com, to make this quote.

1 - Complaint registered its mark Love Your Neighbor with the USPTO on October 20, 1998 and registered the mark Love Thy Neighbour with the USPTO on April 18, 2000.

2 - Respondent registered the domain name lovethyneighbor.net with Internet Domain Registrars on April 30, 1999, prior to Complainant's registration with USPTO.

3 - The domain name at issue is derived from the Bible and is a universal generic phrase in the public domain.

4 - Although one could arguably say that Love Your Neighbor and Love Thy Neighbor are identical or confusingly similar, Complainant has not presented sufficient evidence to establish that the Respondent has no rights or legitimate interests in the domain name or that the domain name was registered in bad faith.

First, with respect to Complainant's reference to Respondent's alleged violation of trademark law, it should be noted that UDRP is of limited application. While Complainant may be entitled to relief in an appropriate forum for trademark infringement, this is not that forum. See Commercial Publishing Co. v. Earthcomm, Inc., FA 95013 (Nat. Arb. Forum, July 20, 2000) (stating that the policy is only intended to resolve a narrow class of cases). Also, the assignment of domain names by Network Solutions does not necessarily correspond with the established principles of trademark law. See, Delta and Matsurra, Law of the Internet (Updated,) §5.04(B), p. 5-56.

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 Complainant holds registered trademarks for both LOVE THY NEIGHBOUR and LOVE YOUR NEIGHBOR. The Complainant contends that the Respondent’s domain name is confusingly similar to the Complainant’s service mark. See Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to Complainant’s HEWLETT-PACKARD mark); America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding that Respondent’s domain name, <americanonline.com>, is confusingly similar to the Complainant’s famous mark).

While the domain name lovethyneighbor.net is not identical to Respondent's Love Your Neighbor Mark, it is identical to Respondent's Love Thy Neighbour mark except for the spelling of Neighbor. And, it can be found that the disputed domain name is confusingly similar to Complainant's marks. Accordingly, Complainant has arguably met the first prong of the ICANN Policy as set out above.

The Respondent claims that it is using the domain name in connection with a legitimate humanitarian use and that this is evidence of rights and legitimate interests in a domain name. Policy ¶ 4(c)(iii). See Tough Traveler, Ltd. v. Kelty Pack, Inc, D2000-0783 (WIPO Sept. 28, 2000) (finding that Respondent had a legitimate interest in the domain name, <kidcarrier.com>, as a generic term for a class of products that Respondent sells); Chestnutt v. Tumminelli, D2000-1758 (WIPO Feb. 2, 2001) (finding legitimate interests in the domain name <racegirl.com> where domain name is generic and generally descriptive of Respondent’s love of racing and where Respondent intends to use the domain name for the noncommercial purpose of encouraging women racecar drivers).

Complainant has offered no evidence to dispute this claim and thus, based on the evidence presented, this Panel finds that the Respondent has demonstrated a legitimate interest and right in the disputed domain name.

The Respondent contends that the domain name was registered in good faith for use in connection with its Lovearth Network. See Chestnutt v. Tumminelli, D2000-1758 (WIPO Feb. 2, 2001) (finding no bad faith registration or use of the domain name <racegirl.com> where no evidence was presented that Respondent intended to divert business from the Complainant or for any other purpose prohibited by UDRP Rules); IG Index PLC v. Index Trade, D2000-1124 (WIPO Oct. 16, 2000) (finding that Respondent has rights in the domain name because Respondent’s claimed use of the domain name is a "plausible explanation" to which the Panel must give weight).

The Respondent contends to have never proactively listed the domain name for sale. Instead, the Respondent merely responded in good faith to Complainant’s offer to purchase the domain name. See Sumner v. Urvan, WIPO D2000-0596 (WIPO July 24, 2000) (finding no bad faith where Respondent did not contact Complainant first, but rather, Complainant first contacted Respondent about purchasing the domain name).

Even though the Respondent is connected with another business, Gods-domains.com, which sells generic names, this domain name was never posted for sale through Gods-domains.com. See John Fairfax Publications v. Domain Names 4U, D2000-1403 (WIPO Dec. 13, 2000) (finding legitimate interests and no bad faith registration where the Respondent is a seller of generic domain names).

The Respondent contends that the domain name was mistakenly registered under the eDomainBroker.com name. The Respondent has no connections to this business.

There is no evidence to support a finding of bad faith under any of the elements of ICANN Policy therefore the undersigned is obligated to find in favor of the Respondent on this issue.

The request of the Complainant that the Respondent's domain name lovethyneighbor.net be transferred to Complainant is hereby denied.