LandSmith, LLC v. Port Media
c/o Domain Admin
Claim Number: FA0708001059595
PARTIES
Complainant is LandSmith, LLC (“Complainant”), represented by Kenneth
A. Baldwin, of McCormick,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <landsmith.com>, registered with Nameview,
Inc.
PANEL
The undersigned certify that they have acted independently and
impartially and to the best of their knowledge have no known conflict in
serving as Panelists in this proceeding.
Hon. Mark McCormick, Prof. David E. Sorkin and James A. Carmody, Esq.,
(Chair), as Panelists.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on
On
On August 31, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of September 20, 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@landsmith.com by
e-mail.
On
A timely Response was received and determined to be complete on
Each party timely submitted an Additional Submission which was reviewed
by the Panel.
On
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. The domain name at issue, <landsmith.com>, is confusingly similar to Complainant’s LANDSMITH mark.
2. Respondent does not have any rights or legitimate interests in the <landsmith.com> domain name.
3. Respondent registered and used the <landsmith.com> domain name in bad faith.
B. Respondent
1. Complainant had no protectable interests in
its LANDSMITH mark at the time Respondent registered the domain name at issue.
2. Respondent is using the domain name at issue
and has rights or legitimate interests in it.
3. Respondent did not register and has not used
the domain name at issue in bad faith.
C. Additional Submissions
Each of the parties
filed an Additional Submission which essentially restated the arguments
initially made.
FINDINGS
LANDSMITH is a service mark owned by Complainant and registered in 2006
and 2007 with the United States Patent and Trademark Office (“USPTO”) reflecting a date
of first use of
In 2001, Respondent registered <landsmith.com>, arguably offering some of
the same services as Complainant
at Respondent’s website associated with the domain name at issue. Apparently, Respondent uses the site for affiliate
advertising purposes associated with <hitfarm.com>.
The
Respondent claims that “landsmith” is a generic term meaning one who “works at
land” and that its registration of the domain name at issue four years prior to
any registration of LANDSMITH anywhere was perfectly proper since there is
no evidence of its actual knowledge of Complainant’s use of the mark in
1999. Accordingly, Respondent argues
that its prior registration of <landsmith.com>
trumps
Complainant’s subsequent registrations of LANDSMITH with
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.
From the record before the Panel,
it is obvious that Respondent registered the domain name at issue in 2001,
while Complainant’s first state registrations of LANDSMITH were in 2005. There is no proof that Respondent had actual
notice of Complainant’s claimed use of the mark since 1999, and Respondent
denies any such knowledge. See
Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA
406512 (Nat. Arb. Forum
The Panel finds that Complainant has not satisfied Policy ¶ 4(a)(iii).
Because that
conclusion is dispositive of the present matter, the Panel need not address the
questions of identicality/confusing similarity or rights/legitimate interests.
DECISION
Complainant has failed to establish all three elements required under
the ICANN Policy. Accordingly, the Panel concludes that relief shall be DENIED.
James A. Carmody, Esq., Chair
Hon. Mark McCormick, Panelist
Prof. David E. Sorkin, Panelist
Dated: October 23, 2007
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