Claim Number: FA0812001239513
PARTIES
Complainant is Charlotte Center City Partners (“Complainant”), represented by Candice
Langston, of Charlotte Center City Partners,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <charlottecentercity.com>, registered
with Godaddy.com,
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.
Honorable Karl V. Fink (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on December 21, 2008; the
National Arbitration Forum received a hard copy of the Complaint on December 26, 2008.
On December 22, 2008, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <charlottecentercity.com> domain name
is registered with Godaddy.com, Inc. and
that the Respondent is the current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, 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 January 6, 2009, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of January 26, 2009 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@charlottecentercity.com
by e-mail.
A timely Response was received and determined to be complete on January 26, 2009.
On February 4, 2009, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Respondent’s domain name charlottecentercity.com is identical to
the Complainant’s domain name (and trade name) of charlottecentercity.org with
the exception of the extension.
The Complainant was formed by local business and government leaders
(under the name of Uptown Development Corporation in 1979) to facilitate and
promote the economic and cultural development of the urban core of
The Respondent has no rights or legitimate interest in the disputed
domain name. It was registered in 2004;
almost seven years after the Complainant first used “
Respondent has never used the domain name “
Respondent has never been commonly known by the name “
Respondent is not making legitimate noncommercial or fair use of “
The domain name is registered and being used in bad faith.
On October 6, 2008 an email was sent informing the Respondent of the
Complainant’s desire to obtain the domain name and offering to reimburse any
direct costs associated with purchasing the domain name. On October 10, 2008, Larry Bowens, from the
Respondent’s company, spoke with Valerie L. Risch and stated that they would
not be willing to transfer or sell the domain name to the Complainant.
Respondent registered and is using the disputed domain name to
intentionally attempt to attract, for commercial gain, Internet users to its
websites to promote its web design, marketing, and hosting firm.
B. Respondent
The complainant does not claim that it is the exclusive resource for
all activities that occur within the area known as
The Respondent registered the domain name, CharlotteCenterCity.com (the
“Domain Name” or the “Disputed Domain Name”) on or about September 3,
2006. The Respondent purchased the
Domain Name from a third-party previous registrant who had it listed for sale
on BuyDomains.com. According to the
Whois archive records, the previous registrant created and registered the
Domain Name on or about November 11, 2004.
Complainant could have registered the Domain Name, at any time prior to
its original creation on or about November 11, 2004. The Complainant in 1997 changed its name to
The Respondent decided to register the Domain Name in order to build a
portal site that focused on the huge growth area of the city which is called
Complainant has no trademark or service mark and the Complainant does
not allege that it does.
Without a trademark or service mark upon which to base a UDRP
Complaint, the Complainant must be dismissed.
The Complainant is misusing the UDRP in order to get the .com version of
a domain name that it wants.
In the absence of registration of the mark, a Complainant must
establish common law trademark rights by demonstrating sufficiently strong
identification of is mark with the public showing the mark has acquired
secondary meaning. It is next to
impossible to establish common law trademark rights and secondary meaning in
the geographical location such as “
Complainant is not alleging that it has a trademark for Charlotte
Center City Partners, nor does it claim that the Domain Name is confusingly
similar with such a term. The Domain
Name is nearly identical to a geographical location, and not confusingly
similar with the Complainant’s corporate name.
The use of a geographic identification in a domain name is analogous to
the use of a generic descriptive term in a domain name. It has been long held that where a domain
name is generic, the first person to register it in good faith is entitled to
the domain name. This is considered a
“legitimate interest.”
The Respondent has an inherent legitimate interest in what is a clearly
a descriptive and common term denoting a particular place. Countless persons unaffiliated with the
Complainant regularly and freely use the term “
Respondent has prepared to use the Domain Name in connection with its
planned directory web site about
Without the Complainant having trademark rights, it is impossible for
the Respondent to have registered the Domain Name in bad faith; to find
otherwise would render the UDRP absolutely meaningless.
Generic and descriptive words and phrases will generally not be
transferred to a Complainant even when a Complainant has a trademark.
There is no evidence that the Respondent registered the domain name in
order to interfere with the Complaint, nor is there any evidence that the
Respondent has engaged in a pattern of such conduct, nor is there any evidence
of any attempt to sell the domain name to the Complainant.
The fact that the subject domain name is composed solely of a common
generic descriptive geographical place name phrase weighs heavily against a
finding of bad faith. Absent direct
proof that a descriptive term domain name was registered solely for the purpose
of profiting from the Complainant’s trademark rights, there can be no finding
of bad faith registration and use.
The Respondent requests that the Panel make a finding of Reverse Domain
Name Hijacking against the Complainant, pursuant to Rule 15(e) of the
Rules. The complainant has used the
Policy in bad faith in an attempt to deprive a registered domain-name holder of
a domain name.
FINDINGS
For the reasons set forth below, the Panel
finds that Complainant has not established that it is entitled to the relief
requested.
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.
Respondent
highlights the fact that Complainant does not have a registered trademark or
service mark in the
Complainant
has failed to satisfy Policy ¶ 4(a)(i).
Because the Panel concludes that Complainant has not satisfied Policy ¶
4(a)(i) because it has failed to establish rights in
the
Reverse Domain Name Hijacking
Although
the Panel has found that Complainant has failed to satisfy its burden under the
Policy, this does not necessarily require a finding of reverse domain name
hijacking on behalf of Complainant in bringing the instant claim.
The Panel finds that reverse domain hijacking has not been proven.
DECISION
Complainant having failed to established all
three elements required under the ICANN Policy, the Panel concludes that relief
shall be DENIED.
Accordingly, it is Ordered that the <charlottecentercity.com> domain name REMAIN with Respondent.
_
Honorable Karl V. Fink (Ret.), Panelist
Dated: February 25, 2009
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