DECISION

Joseph Lettelleir v. Thomas McDonald

Claim Number:  FA0408000314136

PARTIES

Complainant is Joseph Lettelleir (“Complainant”), P.O. Box 750, Land O’ Lakes, Florida 34639.  Respondent is Thomas McDonald (“Respondent”), P.O. Box 871, Dawsonville, Georgia 30534.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <paradisevalleyresort.com>, registered with Enom, Inc.

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.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 17, 2004; the Forum received a hard copy of the Complaint on August 23, 2004.

On August 17, 2004, Enom, Inc. confirmed by e-mail to the Forum that the domain name <paradisevalleyresort.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 August 30, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 20, 2004 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@paradisevalleyresort.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On October 4, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <paradisevalleyresort.com> domain name is confusingly similar to Complainant’s PARADISE VALLEY RESORT mark.

2. Respondent does not have any rights or legitimate interests in the <paradisevalleyresort.com> domain name.

3. Respondent registered and used the <paradisevalleyresort.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Joseph Lettelleir, is the owner of the Paradise Valley Resort, which is a clothing-optional property that offers resort lodging services.  Complainant filed a trademark application with the United States Patent and Trademark Office for the PARADISE VALLEY RESORT mark on July 16, 2004 (Serial No. 76602544) and has used the mark since 2003. 

Complainant was the owner of the <paradisevalleyresort.com> domain name, which was created on January 26, 2003 and had an expiration date of January 26, 2005.  Complainant received a renewal notice for the disputed domain name from Enom.com and the renewal was completed by Complainant. 

On June 26, 2004, either Respondent or Enom.com transferred the domain name registration to Respondent without the written authorization of Complainant.  Respondent was a resident on Complainant’s property until late June 2004.

The <paradisevalleyresort.com> domain name was directed at servers operated by Complainant, according to the WHOIS records under both Complainant’s and Respondent’s names.  Complainant contends that Respondent was aware of the possible error and, thus, continued to point the domain name at the same server addresses.

On June 28, 2004, Respondent moved from the Paradise Valley Resort to a property known as The Grove, which is located ninety minutes north and is in competition with Complainant’s property.  About this same time, Respondent redirected the <paradisevalleyresort.com> domain name to the <nakedatthegrove.com> domain name, which resolved to a website promoting The Grove.

Complainant claims that the <paradisevalleyresort.com> domain name is linked to a family of properties owned and operated under the <paradiselakes.com> domain name, which receives hundreds of thousands of visitors per year.  Thus, on June 28, 2004, visitors were directed from both domain names to a website not affiliated with PARADISE VALLEY RESORT. 

Complainant requested that Respondent transfer the domain name registration to Complainant, and Respondent requested $40,500 in return for the domain name registration.  Furthermore, as of the time of the filing of the Complaint, the <paradisevalleyresort.com> domain name resolved to a website displaying the message “The website ParadiseValleyResort.com has been closed for non-payment.” 

DISCUSSION

Paragraph 15(a) of 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."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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.

Procedural Matters

This case involves Complainant’s contention that Respondent’s acquisition of the <paradisevalleyresort.com> domain name was by fraud or theft.  However, the Policy was established with the purpose of curtailing abusive domain name registrations, an activity known as “cybersquatting,” which involves registering and using a domain name in order to attempt to benefit from a trademark holder’s rights in a mark that corresponds to the domain name.  This case potentially involves a fraudulent registration transfer, which is likely a dispute that should be determined in a court of law.  Thus, the Panel finds that this case is outside the scope of the Policy.  See Decker v. Antwer, FA 263584 (Nat. Arb. Forum June 28, 2004) (“[S]ince the instant case does not involve the practice of cybersquatting and is more accurately described as a fraudulent registration transfer, the Panel finds that this dispute may be more suitable in a court of law as it exceeds the scope of the Policy.”); see also Digital-Logic AG v. Krechman, FA 235827 (Nat. Arb. Forum Apr. 8, 2004) (“[T]he Panel finds that this dispute raises potential contractual issues and suggests fraudulent activity on the part of Respondent, which failed to complete the transfer of the domain name at issue and subsequently renewed the name.  Therefore, the Panel finds that the dispute is beyond the scope of the Policy.”); see also Commercial Publ’g Co. v. EarthComm., Inc., FA 95013 (Nat. Arb. Forum July 20, 2000) (stating that the Policy’s administrative procedure is “intended only for the relatively narrow class of cases of ‘abusive registrations.’”  Cases where registered domain names are subject to legitimate disputes are relegated to the courts).

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is Ordered that the <paradisevalleyresort.com> domain name REMAIN WITH Respondent.

James A. Carmody, Esq., Panelist

Dated:  October 15, 2004

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