AHAVA NA, LLC v. Ahava USA, Inc.
Claim Number: FA0504000464505
PARTIES
Complainant
is AHAVA NA, LLC (“Complainant”),
represented by Sidney D. Bluming, of Bluming Freiman Franco LLP,
140 East 45th Street-19th Floor, New York, NY 10017. Respondent is Ahava USA Inc. (“Respondent”),
represented by Carrie Webb Olson, of Edwards & Angell LLP, 301
Tresser Boulevard, Stamford, CT 06901.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <ahava.com>,
registered with Network Solutions, 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.
Houston
Putnam Lowry, Chartered Arbitrator, as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on April
18, 2005; the National Arbitration Forum received a hard copy of the Complaint
on April 19, 2005.
On
April 20, 2005, Network Solutions, Inc. confirmed by e-mail to the National
Arbitration Forum that the domain name <ahava.com>
is registered with Network Solutions, Inc. and that the Respondent is the
current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
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
April 21, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of May 11,
2005 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@ahava.com by e-mail.
A
timely Response was received and determined to be complete on May 11, 2005.
A
timely additional submission was received from the Complainant on May 16, 2005.
On May 18, 2005, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
domain name is identical to a registered trademark in which Complainant
has
exclusive rights. [ICANN Rule 3(b)(is)(l); 1CANN Policy § 4(a)(i).]
The
owner of the subject trademark is Dead Sea Laboratories, Inc.
("DSL,"), an Israeli company.
Complainant is the exclusive distributor of DSL effective January 1,
2005, with the exclusive rights to
distribute the above described products in the United States and Canada.
Respondent's domain name incorporates in its entirety the identical registered
trademark under which Complainant has exclusive distribution rights, and
features the trademark prominently in its website. In fact, Respondent's
website home page seeks to directly circumvent Complainant's rights by falsely
creating the impression that it has the right to officially distribute directly
from the source of the Products.
It is
only on the "about us" page that after again using the registered
mark of DSL, that Respondent includes the following statement: "AHAVA.COM
is a separate entity from Dead Sea Laboratories, manufacturers of the AHAVA
brand." In all other respects, the website has the look and feel of that
of an authorized distributor.
There
have been numerous decisions, including those by National Arbitration Forum
panels, granting relief under similar circumstances. See, e.g., Shabby Chic,
Inc. v. Asia Ventures, Inc., FA 335486 (Nat. Arb. Forum Nov. 22, 2004).
Respondent
(domain-name holder) has and should be considered as having no rights or
legitimate interests in respect of the domain name that is the subject of the
Complaint. [ICANN Rule 3(b)(ix)(2); ICANN Policy ¶4(a)(ii).]
Respondent
had been the exclusive distributor for DSL under an agreement that expired no
later than December 31, 2004. Respondent's rights expired, and, upon
information and belief, it is being sued by DSL in the Courts of Israel, for
breach of its distribution agreement. See
annexed a copy of the Complaint and a Motion for injunction in the case styled
Dead Sea Laboratories Ltd., P.C. 51
1334252 v. AHAVA (USA), Inc. et al.
Respondent's
use of the domain name is not in connection with a bona fide offering of goods
or services, but rather an intentional attempt to attract, for commercial gain,
Internet users to its website, by creating a likelihood of confusion with the
trademark owner and Complainant's distribution rights as to source,
sponsorship, affiliation, or endorsement of its website. Notwithstanding its
limited statement of disassociation with DSL on its website, its expansive use
of the registered trademark overwhelm such statement, and create the deception
that Respondent is an official supplier of the trademarked products. Upon
information and belief, Respondent has a significant inventory of trademarked
products which were to have been sold back to DSL, but were falsely hidden; and
further Respondent is believed to be obtaining additional inventory of
trademarked products through gray market sources or other deceptive practices
and, upon information and belief, is surreptitiously importing them into the
United States. Respondent has no current agreement with or rights through DSL.
Respondent was not commonly known by the domain name prior to registering its
domain name with ICANN on or about May 5, 1995 (under its then distribution
agreement with DSL). While it utilized the trademark with permission prior to
December 31, 2004, it now utilizes the subject trademark in violation of the
trademark owner's and exclusive distributor's rights, and by infringing those
rights.
Respondent
has the clear intent of violating the trademark rights for commercial gain, to
misleadingly divert consumers or to tarnish the trademark at issue.
The
domain name is being used by Respondent in bad faith. [ICANN Rule 3(b)(k)(3);
ICANN Policy ¶4(a)(iii)].
No
act could be more in bad faith, than the willful continuing breach of a now
expired distribution contract with the trademark owner. Simply put, Respondent
continues to act as if it had the rights as distributor as evidenced by
virtually the entire content on the website (with the sole exception cited
above). Respondent is improperly causing prior sales representatives to act in
its behalf, rather than on behalf of Complainant, allowing retail customers to
continue to believe that it is the rightful distributor for DSL.
Respondent
has maintained the domain name primarily for the purpose of disrupting the
business of the rightful exclusive distributor under the trademark, and
diverting the business and good will of the trademark owner and exclusive
distributor.
B.
Respondent
Response
to Statements and Allegations Made in Complaint
(Policy, paras. 4(a), (b), (c); Rules,
para. 5)
Respondent
hereby responds to the statements and allegations in the Complaint and
respectfully requests the Administrative Panel to deny the remedies requested
by Complainant.
Paragraph
4(a) of the Policy sets forth three elements that must be established by a
complainant to merit a finding that the respondent has engaged in abusive
domain name registration and use, and to obtain relief. Complainant must prove
of the following elements:
(i) Respondent's domain name is identical
or confusingly similar to a trademark or
service mark in which Complainant
has rights; and
(ii) Respondent has no rights or
legitimate interests in respect of the domain name; and
(iii) Respondent's domain name has been
registered and is being used in bad faith.
Complainant
cannot establish each of these required elements, as shown below:
1. Whether the domain name is identical or confusingly
similar to a trademark or service mark in which the
Complainant has rights.
(Policy, para. 4(a)(i))
A.
Respondent challenges the trademark rights asserted by Complainant. Complainant is Ahava NA, LLC. However, the
U.S. Patent and Trademark Office ("PTO") records show the owner of
U.S. Trademark Registration No. 1,790,035 for AHAVA and Design as Dead Sea
Laboratories LTD (“DSL”), an Israeli company. Complainant submits an undated
Distribution Agreement (the "Agreement") between itself and DSL that
purports to appoint Complainant as exclusive distributor of an
"AHAVA" line of skin care and beauty products (the "Products")
in the United States and Canada.
In
Paragraph 10.1 of the Agreement, the parties agree that DSL is the owner of all
right title and interest in and to the Intellectual Property. In Paragraph 1 of the
Agreement, “Intellectual Property" is defined, in
pertinent part, as follows:
"Intellectual
Property" shall mean any patent, copyright, industrial design, trademark,
tradename or other industrial or intellectual property right (other than the
web site under the domain name Ahava.com). . .(Emphasis
added).
This
definition specifically excludes the web site and domain name at issue in this
proceeding. Thus, should the Panelist transfer the <ahava.com> domain name to
Complainant in this proceeding, it will be granting Complainant rights in and
to a property that was intentionally excluded from the Agreement on which
Complainant relies for standing in this case.
In
addition, Respondent has a history with DSL and questions its ownership in and
to the AHAVA trademark in the United States. It is Respondent's position that
it has acquired substantial common law rights in and to the AHAVA trademark
throughout the United States by virtue of its use and development of the AHAVA
name in connection with skin care and beauty products, since at least as early
as 1994.
DSL
and Respondent entered into a written agreement concerning Respondent's
distribution of AHAVA products in 1994. That agreement terminated in 2001 and the parties
entered into a second distribution agreement in December 2002.
Although
DSL and Respondent entered into a written agreement concerning Respondent's
distribution of the AHAVA products in the United States, DSL failed to exercise
even a modicum of control over the quality and/or nature of the products sold
under the AHAVA name by Respondent.
For
at least the past ten (10) years, Respondent has developed advertising and
promotional materials, as well as product labeling bearing the AHAVA trademark,
in its sole discretion. DSL never exercised any right of approval or otherwise
with respect to the product labels developed by Respondent, which were applied
to the products prior to insertion into the stream of U.S. commerce. As a
result of DSL's failure to exercise quality control over its licensee's use of
its asserted trademark, U.S. consumers have come to recognize Respondent as the
sole and exclusive source of AHAVA products in the United States.
As
Complainant has correctly pointed out, DSL and Respondent are currently engaged
in a dispute concerning Respondent's right to use the AHAVA trademark in the
United States. The dispute is within the jurisdiction of the Israeli courts.
Although DSL has filed a Complaint against Respondent, Respondent has not yet
filed its Answer in contravention of the facts presented in DSL's Complaint.
Respondent intends to aggressively challenge DSL's asserted "undisputed
ownership" in and to the AHAVA mark in the United States.
Under
these circumstances, DSL's claim of trademark ownership in the Agreement is
tenuous, at best. Further, DSL clearly did not have the right to license Complainant's
use of the <ahava.com> domain name. Therefore, Complainant
rights in and to the trademark contained in the <ahava.com> domain
name are suspect for purposes of its ability to properly bring this UDRP
proceeding in its own name.
2.
Whether the Respondent has rights or legitimate interests in respect of the
domain name.
(Policy, para. 4(a)(ii))
Respondent
has rights and a legitimate interest in respect of the <ahava.com> domain name.
A.
Before Respondent received any notice of the dispute, Respondent used the
domain name in connection with a bona fide offering of goods or services. Paragraph 4(c)(i) of the Policy provides
that a use is legitimate if, prior to commencement of the dispute, Respondent
used the domain name in connection with a bona fide offering of goods or
services. As discussed in Oki Data Americas, Inc. v. ASD, Inc., D2001-0903
(WIPO Nov. 6, 2001), to be “bona fide” the offering must meet the following
requirements:
(i) Respondent must actually be offering
the goods or services at issue;
(ii) Respondent
must use the site to sell only the trademarked goods and not to bait Internet
users and then switch them to other goods:
(iii) The site
must accurately disclose the registrant's relationship with the trademark
owner; and
(iv) Respondent
must not try to corner the market in all domain names, thus depriving the
trademark owner of reflecting its own mark in a domain name.
In
this case, Respondent's conduct meets all these factors. Respondent is selling
off its inventory of AHAVA products through the web site; it is selling only
the goods manufactured by DSL through the web site - there is no
"bait and switch" activity occurring at the site; Respondent's web
site prominently displays a statement that "AHAVA.COM is a separate entity
from Dead Sea Laboratories, manufacturers of the AHAVA brand"; and
Respondent has in no way "cornered the market" for all domain names
that containing the term "ahava". A search of the <whois.net>
site shows 430 domain name registrations containing the term "ahava."
Indeed, the domain name at issue in this proceeding, i.e., <ahava.com>,
is the only domain name owned by Respondent that contains the term
"ahava."
Long
before Complainant acquired its alleged rights in and to the AHAVA trademark,
Respondent was doing business through its web site located at <ahava.com>.
In fact, the <ahava.com> domain name was registered in May 1995 by
Respondent, during which time the Respondent was the record owner of U.S.
Trademark Registration No. 1,790,035.
As the U.S. trademark owner of record from February 9, 1995 through
January 1,1997, Respondent's use of the domain name in connection with the bona
fide offering of goods and services cannot be questioned.
Even
after the January 1, 1997 assignment of U. S. Trademark Registration No. 1,790,03 5 from Respondent
to DSL, Respondent continued to operate the web site located at <ahava.com>
with the full knowledge and consent of DSL. Indeed, DSL supplied the
photographs to the web design firm hired by Respondent to develop and design
the <ahava.com> web site. In addition, DSL met with Respondent's
web design firm on numerous subsequent occasions and frequently supplied them
with new material on behalf of Respondent, in support of Respondent's
development of the web site. DSL also placed <ahava.com> on
packaging for products manufactured specifically for the U.S. market.
DSL's
active support of Respondent's bona fide offering of goods and services at the <ahava.com>
web site continued, notwithstanding DSL's assignment of the U.S. Trademark
Registration No. 1,790,035 for AHAVA back to Respondent on January 9,
2003. As the owner of the AHAVA
registration from January 9, 2003 until November 26, 2003, Respondent continued
to make a bona fide offering of goods and services at the <ahava.com>
web site.
In
its Complaint, Complainant asserts that Respondent's use of the domain name is
an "intentional attempt to attract, for commercial gain, Internet users to
its web site, by creating a likelihood of confusion with the trademark owner
and Complainant's distribution rights as to source, sponsorship, affiliation or
endorsement of its web site."
Respondent
vehemently denies such allegations, which are made on the basis of
Complainant's purported newfound distribution rights for the AHAVA products. Again, Respondent currently disputes DSL's claim
of ownership in and to the AHAVA mark, and therefore its ability to lawfully
grant Complainant a license to use the AHAVA name in the United States. DSL's
claim of U.S. rights is being asserted in the context of a dispute concerning
the termination of a distribution agreement between Respondent and DSL, over
which Israeli courts currently maintain jurisdiction. Respondent's answer to
DSL's Complaint is not yet due and has not been filed to date. A transfer of
the <ahava.com> domain name to Complainant at this stage would be
premature and could result in Complainant's unjust enrichment.
Complainant
also alleges that Respondent "has significant inventory of trademarked
products which were to have been sold back to DSL, but were falsely
hidden." This statement is completely unsupported by the record. As a
preliminary matter, the 2002 agreement between DSL and Respondent provides for
DSL's option but not the obligation to purchase Respondent's stock of
Products within ninety (90) days of the termination date, which was December
31, 2004 (emphasis added). DSL did not
exercise its option to purchase Respondent's entire inventory within the
designated time period. Furthermore, Complainant's assertion that "Respondent
is believed to be obtaining additional inventory of trademarked products
through gray market sources" is without merit and irrelevant for purposes
of this proceeding.
B.
Respondent has been and is commonly known by the domain name at issue, even if
Respondent has acquired no trademark or service mark rights.
Complainant
asserts "Respondent was not commonly known by the domain name prior to
registering its domain name . . .on May 5, 1995” (emphasis added). This assertion misstates the required element
for establishing that Respondent has no rights or legitimate interest in and to
the domain name. As the Panelist will certainly confirm, Respondent need only
show that it was commonly known by the domain name prior to any notice of
the dispute (emphasis added).
Respondent
has invested hundreds of thousands of dollars in connection with the
development, design and maintenance of the <ahava.com> site.
As a result of these expenditures, combined with significant sales - in excess of
two million dollars - of products through the <ahava.com> site,
and several million dollars in sales of AHAVA products over the past ten years,
consumers of AHAVA products came to recognize Respondent as inextricably
associated with the <ahava.com> domain name.
3. The domain name was neither registered nor is being used
in bad faith.
(Policy, para. 4(a)(iii))
Complainant
has offered no evidence or statements in support of the proposition that the
domain name was registered in bad faith. As with the misstatement regarding the
standard for showing that Respondent is not commonly known by the domain name,
i.e., that Respondent was not known by the domain name prior to registering the
name versus prior to receiving notice of this dispute, Complainant apparently
elected to disregard its burden of showing bad faith registration and bad faith
use. Respondent contends that Complainant has shown neither.
Respondent
refutes that it is using the domain name in bad faith and denies that it is in
breach of a now expired distribution agreement. Respondent contends that it has
acquired significant common law rights in and to the AHAVA trademark in the
United States, by virtue of DSL's lack of quality control with respect to
Respondent's independent use of the AHAVA mark for over ten years. Further, even if
Respondent did not challenge DSL's trademark rights in the United States,
Respondent is entitled to dispose of inventory that was not purchased by DSL
within the proscribed time period.
Regarding
Complainant's "evidence of Respondent's bad faith" in the form of an
allegation that Respondent is operating through an entity that does not exist,
Respondent, at all times, believed that its registration to do business in the
state of South Carolina was valid and subsisting. Until its receipt of this
Complaint, Respondent was unaware of the expired status of Ahava (USA), Inc. in
South Carolina. As evidence of Respondent's good faith belief that it was duly
registered in South Carolina, Respondent submits herewith a copy of its South
Carolina income tax return for the year 2003.
Immediately
upon learning of the lapse in South Carolina, Respondent contacted its
attorney, Melvin Williamson, Esq., to inquire as to the current status in this
jurisdiction. Mr. Williamson responded on May 9, 2005 letter with enclosure,
showing that Ahava (USA) is in the process of being reinstated after
dissolution by administration action after proof of its compliance in
connection with the payment of tax due to the state. Respondent expects to be
reinstated in South Carolina within two days of the filing of this Response. In
any event, such an administrative error does not constitute "bad
faith" in terms of business activities conducted by Ahava (USA) Inc.
during the lapse.
Turning
to the substantive issues to be addressed in this proceeding, and contrary to
Complainant's assertion, Respondent is not maintaining the domain name
"primarily for the purpose of disrupting the business of the rightful
exclusive distributor under the trademark . . .” Rather, Respondent maintains
the <ahava.com> domain name, as it is legally entitled to
do (as further evidenced by DSL’s specific exclusion of this property right in
its Agreement with Complainant), because it considers the domain name a
valuable corporate asset, in which significant sums have been expended to date. A
transfer, without just consideration, to Complainant - or DSL - would be
against public policy.
A.
The domain name was not registered or acquired primarily for the purpose of
selling, renting, or otherwise transferring the registration to Complainant, as
the alleged owner of the trademark or service mark, or to a competitor of
Complainant, for valuable consideration in excess of Respondent's out-of-pocket
costs directly related to the domain name.
As
the owner of the U.S. Trademark Registration for AHAVA at the time in which the
domain name was registered, Respondent has shown that the domain name was not
registered in bad faith.
B.
The
domain name was not registered in order to prevent Complainant from reflecting
the mark in a corresponding domain name and, in connection therewith,
Respondent has not engaged in a pattern of such conduct.
As
previously stated, and supported by sworn Declaration, Respondent is the owner
of only one domain name containing the term "ahava" -
the
domain name at issue in this proceeding. It cannot be shown that Respondent
either:
( i) knew about
Complainant and its purported interest
in the AHAVA trademark at the time of registration or
(ii) engaged in a pattern of
"cybersquatting" as contemplated by this section.
C.
The domain name was not registered by Respondent primarily to disrupt
Complainant's business.
Again,
Respondent was not even aware of Complainant at the time the domain name was
registered, over ten years ago. Further, the registration - and use - of the domain
name was approved and sponsored by the purported trademark owner, DSL, who has
not objected to Respondent's ownership of the domain name to date.
D. The domain name was not registered by Respondent
in an intentional attempt to attract for commercial gain, Internet users to
Respondent's web site or other on-line location, by creating a likelihood of
confusion with Complainant's mark as to the source, sponsorship, affiliation,
or endorsement of Respondent's web site or location or of a product or service
on Respondent's web site or location.
The
domain name was registered prior to the date on which Complainant acquired its
purported
rights in and to the AHAVA trademark.
C.
Additional Submissions
General Statement
This Additional Written Statement is necessitated by the gross
distortions, misstatements and unsupported and unsupportable contentions
contained in the Response which seek to obfuscate these proceedings. Respondent
seeks to have the Panel look past the fundamental truths. Respondent had a
series of distribution agreements (the latest being embodied is referred to
herein as the “Respondent’s Agreement” with the trademark owner, Dead Sea
Laboratories, Ltd. of Israel (“DSL”), which granted it the contractual right to
use the AHAVA mark (the “Mark”) for limited purposes, for a limited time, under
certain conditions. Respondent’s Agreement expired, yet Respondent wrongfully
continues to include the Mark in the disputed domain name. The only rights
Respondent ever possessed relating to the Mark derived from Respondent’s
Agreement, and that agreement expired. All of the contrivances, concocted
arguments and bald assertions in the Response seek to divert attention from
this basic and unavoidable fact.
Arguments
1. Respondent has no independent rights; rather Respondent
asserts rights derived only under Respondent’s Agreement, which is now ended.
All assertions by Respondent regarding its creation and operation of its
website in the U.S., and the claimed creation of goodwill ignore the fact that
it did and only could do so only with contractual permission, and subject to
all of the conditions and limitations contained in Respondent’s Agreement. In
Section 10.2 of the Respondent’s Agreement it undertakes: “not to make any use,
directly or indirectly, of said Intellectual Property items [including the
Mark] . . . for any activities whatsoever other than those required for the
implementation of this Agreement, and after the expiry of this Agreement for
whatever reason, not to make any use whatsoever of same.” Yet Respondent
wants the Panel to view its actions in isolation, pretending that it was
“commonly known by the domain name” and that the good will generated from its
contractual efforts as DSL’s exclusive distributor should somehow inure to it
rather than to DSL. Respondent, simply put, is arguing for permission to divert
the good will and effectively seize the Mark itself – not just the disputed
domain name. Respondent does not – and can not – contend that it would have had
any rights to utilize the Mark or register the domain name were it not for
Respondent’s Agreement, which it now wants the Panel to ignore. Respondent’s
Agreement, by admission, expired by its terms on December 31, 2004 (Section
2.1). The continuation of the registration of the disputed domain name after
the rights to the Mark expired is the functional and legal equivalent of
registering the same in bad faith. To find that the disputed domain name has
been used in bad faith since such expiration, one need only look at the
Response.
2. Respondent has no right to dispose of inventory under the
Mark or continue to use the disputed domain name. Respondent claims “even
if Respondent did not challenge DSL’s trademark rights in the United States,
Respondent is entitled to dispose of inventory that was not purchased by DSL
within the proscribed [sic] time period.” Typical of the unfounded and
patently erroneous assertions in the Response, this is contrary to Respondent’s
Agreement and the facts. There is no sell-off right. In fact, in Section 9.3
Respondent agreed not to sell any “products containing minerals or any
other elements from the dead sea [the essence of the Ahava products], for the
term of this Agreement and for a period of 2 (two) years afterwards.” Clearly
during the existence of Respondent’s Agreement, DSL’s products were expressly
approved for sale as the premise thereof, but thereafter Respondent was not to
be a competitor with DSL or its new distributor. Therefore selling any such
products irrespective of the brand or domain name used is contrary to the
contractual restrictions. Further, Respondent should have no inventory to sell.
The Response makes the false statement that DSL failed to effectively exercise
its option to repurchase Respondent’s inventory. However, as set forth in the
letter to Mr. Steven A. Certilman, Esq., then counsel to Respondent, from
Fischer Behar Chen & Co., counsel to DSL, the option to purchase all
inventory was in fact exercised (in addition to Respondent being told to cease
all further use of the Mark).
Declaration from Michael Etedgi, Manager of Complainant, including a
Packing List showing Respondent as shipper, DSL as buyer and shipment to “I.
Shalom,” an affiliate of Complainant. Mr. Etedgi states that DSL and Complainant
had acquired Respondent’s entire inventory. Respondent should have had no
remaining inventory; it misled Complainant and DSL, and now is not giving
accurate information to the Panel.
3. Complainant has the unfettered right to enforce the Mark for
itself and for DSL irrespective of its rights vis-à-vis DSL. As to the
contention in Response Section 1A, Complainant’s rights do not have to include <ahava.com>
in order to allow it to enforce the rights in trademark as authorized under
Section 10.6 of Complainant’s distribution agreement (“Complainant’s
Agreement”), which states that Complainant is authorized:
“. . . to institute and conduct legal action . . . against
unauthorized distributors offering the Products for sale in the Territory or
infringers utilizing any of the trademarks associated with All Products.”
Respondent is both, and the issue of entitlement to the disputed domain name as
between Complainant and DSL is irrelevant. In fact, if Respondent is concerned
with Complainant being “unjustly enriched,” Section 10.1 of Complainant’s
Agreement provides, in pertinent part: “All right, title and interest in and to
any rights as may be acquired by Distributor. . . during the Term . . . in . .
. any other Intellectual Property are, by this Agreement, without further
request by DSL, properly and completely conveyed to DSL.” Note that the
definition of Intellectual Property in Section 1 includes, inter alia, the Mark and “any other items which
are, directly or indirectly, associated with the same. . .” Separately,
Respondent seems to argue that it has independent trademark rights in the
domain name <ahava.com> but clearly it does not, nor does it
assert any registration or attempted registration thereof – nor could it.
4. Attacks on DSL’s ownership of the Mark have no place in this
proceeding, are disingenuous and in any event are fatally flawed. Respondent’s
sudden effort to attack DSL’s rights in the Mark has no place within the
proceeding, though they are striking evidence of its bad faith. Even if the
Panel were to consider these naked assertions, they are at best disingenuous.
Respondent operated, by its own admission, since 1994 under grant of rights
from DSL. Respondent had at least two exclusive agreements, and entered into
Respondent’s Agreement as late as December 2002, accepting all of its premises,
obligations, conditions, restrictions and limitations. Had Respondent believed,
for reasons other than to obfuscate these proceedings, that DSL did not have
enforceable rights in the Mark, it never before made those beliefs known. It is
certainly precluded from raising the same now on numerous legal theories,
including waiver, estoppel, acquiescence and laches; and even were it allowed
to do so, it does not overcome its contractual constraints. Moreover,
Respondent boasts of its efforts in its lawsuit against J.W.G. In that case Respondent relied upon and
espoused the strength of the Mark, which was apparently assigned to it only
temporarily in 2003, to enable the prosecution of that action. If Respondent
now seeks to assert DSL’s lack of oversight of the Mark – again it is believed
such assertions to be irrelevant herein and improperly raised – it is in fact
Respondent that was responsible for the market as exclusive distributor and
cannot derive a windfall from its own failures. As to oversight of advertising
and promotion, Respondent’s Agreement required it to provide marketing and
sales materials to DSL. See, e.g., Sections 3.1, 9.2(a) and 9.2 (d).
Respondent’s contention, at pg. 4, that “DSL failed to exercise even a modicum
of control over the quality and/or nature of the products sold under the AHAVA
name by Respondent,” is patently absurd. DSL was itself the manufacturer of the
products. In fact in Section 10.2 of Respondent’s Agreement, Respondent was
precluded from dealing in any other similar products – clearly for the very
purpose of controlling those products associated with the Mark. Moreover,
Respondent is obviously seeking to contrive an abandonment argument; but it is
not only completely misplaced and unsupported, but also fatally deficient. In
the first instance, unless proven to have been abandoned, the Mark registrant
is the prima facie owner until its Mark is cancelled. Beyond that, the
test of abandonment based on failure to provide quality control is severe;
there must be an extraordinary lack of attention, which Respondent cannot begin
to demonstrate herein. See, e.g., Ky. Fried Chicken Corp. v. Diversified
Packaging Corp., 549 F. 2d 368 (5th Cir.
1977).
5. Respondent has no independent rights and its website
promotes confusion with DSL. Respondent contends baldly that it has a
“legitimate interest in respect to” the disputed domain name, but can show no
rights except those that derived solely from, and ended upon the expiry of,
Respondent’s Agreement. To assert after the fact that all of its activities
under that Respondent’s Agreement inured to its own benefit is to simply deny
the existence of Respondent’s Agreement as well as logic and rationality. See
infra, at point 8. In an effort to justify its independent rights, and
achieve some pretense at separation from DSL, Respondent points to a reference
on its website (certainly not prominently, but rather on a linked page – “About
us” – which is found only after linking to the “contact us” page) that
“AHAVA.COM is a separate entity” from DSL. This is meaningless to any consumer,
as well as misleading. “Ahava.com” is not an entity at all – nor in its papers
does Respondent make any legal assertion it is. In Ahava (USA), Inc. v.
J.W.G., Ltd., 250 F. Supp. 2d 366 (SDNY 2003) it states that Mr. Goldberg had
been an authorized distributor under the Mark since as early as 1991. That
it is. There is no legal use of a fictitious name; merely a presumptuous and
wrongful purloining of the Mark, with innocuous allusions to some ephemeral
existence. There is no meaningful disclosure statement to avoid confusing the
market (not that it would alter the rights of the parties herein) that it is
not an authorized distributor of DSL’s, or that its rights to distribute under
the Mark are being contested by DSL. Quite to the contrary, merely click onto
the website’s links on the top of that page to “The Lab” and “Factory.”
These pages exacerbate the ready impression that the website owner
is the manufacturer of the AHAVA products –totally in violation of the premises
of trademark law and promoting the precise kind of confusion that trademark
laws decry. Further, Respondent even misuses the Mark by promoting independent
books, one, Psalm In Jenin, authored by Mr. Brett Goldberg who is
described as “formerly President of AHAVA USA.” Respondent offers another
misleading element, reference to the “whois” database. Apart from the fact that
the conduct of others bears no relevance herein, Respondent does not and cannot
know which, if any, of these domain names are actually authorized by DSL (the
list includes, of course, DSL’s own site as well as that of Complainant) or
which are being attacked for misappropriation and infringement. Of the first 40 domain names, many have shut
down after demands by Complainant, and many others have no active website. See,
e.g., the home page of <1stahavaclub.com> (which also diverts from
several of the other listed domain names), and that of <ahava.us> which
is offered for sale. For Respondent to cite those domain names is both ironic
and disingenuous since virtually all of them were registered while Respondent
was the custodian of the Mark in the United States under Respondent’s Agreement
and had the obligation (Section 10.2(c)) to notify DSL of infringements, with
the right to prosecute them. Respondent cannot be heard to argue its own
failure to act as a basis to attack the owner’s rights in the Mark or to
bolster its own specious claim of right.
6. Respondent was never the beneficial owner of the Mark.
Respondent claims that it was the record owner of the Mark and therefore had
some inherent right to use it in its domain name that continues in perpetuity.
It fails to note, however, that the original Assignment of Trademark was “for a
period not to exceed the term of the March 1, 1993 Distribution Agreement
between Assignor and Assignee. . .” It
is also irrelevant for Respondent to assert that it continued to use the domain
name during the time that Respondent’s Agreement was in effect as if the act of
doing so created rights beyond the agreement or some acquiescence on DSL’s part
separate from that agreement. Again, the only relevant rights Respondent had to
use the Mark in any way, including in the disputed domain name, derived from
Respondent’s Agreement and the earlier referenced distribution agreement which
has not been provided by Respondent in this proceeding.
7. Expenditures on marketing, not relevant in any event to the
within dispute, were contractually required under the agreement Respondent
seeks to ignore. Respondent further distorts the facts in Response. It again seeks to bootstrap its rights on
those it derived contractually. Its investment in promotion was a requisite
under Section 3 of Respondent’s Agreement. As with any selling, marketing is a
necessary expenditure (and by its own admission, it reaped significant
financial return on its marketing investment). However, it was only able to and
did only market its rights as they existed under Respondent’s Agreement. Once
that agreement ended, Respondent cannot be permitted to simply convert to its
own benefit the rights it had derived thereunder while abrogating all
conditions, limitations, restrictions and obligations.
8. No common law rights accrued: Respondent operated under
contract, and expressly agreed it would not acquire any rights independently. Respondent’s
bald assertions in the Response have no basis, are provided with no support and
are contrary to Respondent’s Agreement. Respondent contends, on some inexplicable
theory, that it acquired “common law rights in and to the AHAVA trademark.”
Clearly this is absurd as a matter of law when operating under DSL’s registered
trademark, and pursuant to a contract it never challenged (until December 15,
2004, two weeks before its scheduled expiry). Yet Respondent asserts common law
rights and the entitlement to dispose of inventory in direct contravention of
the provisions of Respondent’s Agreement. Respondent merely ignores the fact
that it contractually agreed that under no circumstances would it acquire any
rights in the Mark. Section 10.2 of Respondent’s Agreement provides, inter
alia, that Respondent undertakes “(d) not to acquire any right for
itself in the Intellectual Property, or any item thereof or any goodwill or
other rights related thereto, by any act or omission” (emphasis added).
9. Respondent’s conduct constitutes bad faith as expressly
proscribed under the UDRP Policy. Respondent seeks to rely on a technical
argument that a complainant must separately show that the registration of the
domain name was effected in bad faith, this is belied by the UDRP Policy. If
technical arguments are to prevail, it is noted that no rights existed in Mr.
Goldberg personally or in any South Carolina corporation. As shown in the
Response, even the assignment (for convenience of the JWG Litigation) made in
January 2003 was made to Ahava (USA), Inc., a Delaware corporation.
Consequently, any putative South Carolina corporation was never a registrant of
this domain name and any registration thereof by it, or the maintenance of any such
registration, is without technical premise. In fact UDRP Policy Paragraph
4(b)(iv) provides prima facie examples of evidence to support the complete
bad faith element in both registration and use contained in
Paragraph 4(a)(iii):
“b. Evidence of Registration and Use in Bad Faith. For the
purposes of Paragraph 4(a)(iii), the following circumstances. . . shall be
evidence of the registration and use of a domain name in bad faith: . .
.(iv) by using the domain name, you have intentionally attempted to
attract, for commercial gain, Internet users to your web site or other on-line
location, by creating a likelihood of confusion with the complainant's mark
. . .”
[emphasis added].
Respondent’s bad faith registration and use is exacerbated by its
unabated use of the Mark in abject disregard of the prohibition contained in
Respondent’s Agreement and in the face of express objection from DSL and
Complainant, and in direct conflict with the rights of Complainant as its
replacement as exclusive distributor. The lawsuit against Respondent in Israel
by DSL demonstrates (irrespective of Respondent’s gratuitous, completely
unsupported and misplaced assertions in this proceeding) that Respondent is
acting in contravention of its once existing rights. Respondent’s reference to
isolated historical events provides it with little comfort, especially as the
perversion of those events underscores Respondent’s bad faith.
By way of example only, Respondent asserts in its Declaration, in
paragraph 4, that “as owner of the AHAVA trademark and corresponding U.S.
Trademark Registration, Ahava USA registered the ahava.com domain
name.” The Delaware corporation was merged out of
existence in 2000, into a South Carolina corporation. No assignment was ever
displayed (and it is believed none was ever approved by DSL or executed in
fact). Consequently, transfer of the Mark in 2003 to a Delaware corporation was
technically improper.
Renewal
of the registration was last effected July 10, 2004. Such act, without notice
to and approval by DSL, therefore constituted a bad faith renewal/registration.
Respondent’s rights as “owner” of the Mark were merely temporary
and for convenience. Respondent never
had any actual ownership rights in the Mark lest it would not have needed
Respondent’s Agreement and it would have had no reason to reassign the Mark. In
fact, if Respondent’s assertion is taken at face value, the logical conclusion
is that because ownership of the domain name follows ownership (or
custodianship as exclusive distributor) of the Mark, then Respondent’s rights
have necessarily lapsed and those rights should inure to
Complainant, or at least to DSL.
As shown in detail in the Complaint, Section [5](c), and as
amplified herein, Respondent’s use, including, inter alia, its “Steals
& Deals” page, is designed and utilized for the indisputable objective of
attracting, for commercial gain, Internet users to its website by creating a
likelihood of confusion. It can be for no other reason that, among other
things: the Mark is used lavishly throughout the site, sometimes with the “®”
symbol and sometimes not, and with and without other words; the colors, look
and feel of the website closely resembles those of Complainant and of DSL; there
is no effective disclaimer; by its own admission herein the products sold in
the United States by Complainant are the sole products offered on the website;
statements in and full pages of the website are designed to induce consumers to
believe that Respondent is the manufacturer or has a tie in to the manufacturer
of the products under the Mark; and nowhere within the website is Respondent
identified other than by use of the Mark and the non-entities “Ahava” and
“Ahava.com.” See the WIPO Administrative Panel Decision in Süd-Chemie AG v.
tonsil.com, D2000-0376 (WIPO July 3, 2000), a case in which the respondent
therein identified itself on its website only as <tonsil.com>. The Panel
in that case said: “The Respondent has not asserted that tonsil.com is a
person, or is incorporated or registered as a legal entity in any jurisdiction.
Therefore, the Panel is not in a position to ascertain whether or not the
Respondent exists.” The same is true here; and the consuming public is even
more confused. The confusion over the status of Respondent is compounded by its
corporate shell game. By contrast, in the Customer Service page of
Complainant’s website readily and clearly identifies Ahava NA, LLC as the owner
of <ahavaus.com>. This transparency was implemented even though
Complainant is the legitimate distributor of Ahava products.
10. Respondent’s bad faith intentions are clear from its
conduct. The Response, after much effort to obfuscate the substance and
nature of its wrongful conduct, seeks to address the “substantive issues,” and
denies that Respondent is seeking to divert business from the rightful
distributor, supporting this with more raw hyperbole. One needs only check
Respondent’s website, which continues unabated (but for the ambiguous reference
to DSL) and goes to great lengths to appear to be an official AHAVA site – and
has not changed from that used by Respondent before the expiration of
Respondent’s Agreement. But worse, it perverts the Mark. See <ahava.com/channels/shop_page.asp?ctg=6&subCtg=all>, captioned “Steals &
Deals,” seeking to undermine Complainant’s prices and devalue the Mark. Also,
at the top of the page it says “AHAVA®Shop.” This further misuse of the Mark prominently
on the website alone rebuts Respondent’s contentions of innocence and good
faith. It is further noted that
Respondent’s Agreement was with Ahava (USA), Inc., a Delaware corporation. Thus a restoration of a South Carolina
corporation to existence does not correct the defect; and evidences that the
grantee of any rights no longer exists. Unless there was a written approval,
assignment of rights from the distributor under Respondent’s Agreement, or
under the trademark assignments, were assigned in violation of Section 14 of
Respondent’s Agreement. Respondent has played fast and loose with DSL’s rights
and interests in every way. See Kapula Candles (Proprietary) Ltd. v.
Dixon, D2002-0945 (WIPO Dec 2, 2002). See also on that page the
unchanged and clearly erroneous copyright notice. This is a new page which
could not have been first published in 2002, but more importantly again misuses
the Mark by showing AHAVA alone as if it were an entity which is the operator
of the website, as the claimer of the copyright.
Conclusion
11.
Complainant has satisfied its burden of showing that (1) the domain name is
identical to the Mark in which Complainant has rights; (2) Respondent should be
considered as having no rights or legitimate interests in respect of the domain
name in dispute as any such rights expired on December 31, 2004;
and (3) the disputed domain name should be considered as having been registered
and being used in bad faith as the rights to continue the registration had
expired, and in any event Respondent has intentionally attempted to attract,
for commercial gain, Internet users to its web site by creating a likelihood of
confusion with the Mark. As a result, the relief requested herein should be
granted. If the Panel believes that transferring ownership to Complainant would
somehow grant rights to it which are beyond those contained in Complainant’s
Agreement (Attachment B) and chooses not to rely on Section 10.1 thereof, it
would be appropriate then to transfer ownership directly to DSL, for which
owner Complainant also acts herein, or to cancel the domain name. The only unacceptable
outcome is for Respondent to reap benefits from its wrongful taking of the
trademark rights of another.
FINDINGS
After reviewing the documentary evidence,
I make the following findings:
(1)
the domain
name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights;
(2)
Respondent
has rights or legitimate interests in respect of the domain name; and
(3)
the domain
name was not registered in bad faith.
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
[emphasis added.
Complainant is the exclusive distributor in the
United States for Dead Sea Laboratories, Inc., an Israeli company that
presently holds a trademark registration on the Principal Register of the
United States Patent and Trademark Office (“USPTO”) for the AHAVA mark (Reg.
No. 1,790,035; issued August 31, 1993) for total body products. This registration with the USPTO and
Complainant’s exclusive distributorship agreement (particularly §10.6 in the
present Distributorship Agreement) with the trademark owner demonstrate
Complainant’s rights in the AHAVA mark for purposes of Policy ¶ 4(a)(i). See
Janus Int’l Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) (finding that panel decisions have held that
registration of a mark is prima facie evidence
of validity, which creates a rebuttable presumption that the mark is inherently
distinctive, and that a respondent has the burden of refuting this assumption);
see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept.
16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that
they are inherently distinctive and have acquired secondary meaning.”).
The <ahava.com>
domain name is identical to Complainant’s AHAVA mark.
The domain name fully incorporates Complainant’s mark and adds the “.com”
generic top-level domain. The addition of a generic top-level domain does not
distinguish the domain name from Complainant’s mark. Thus, the domain name is
confusingly similar to the mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429
(WIPO June 25, 2000) (finding that the top level of the domain name such as
“.net” or “.com” does not affect the domain name for the purpose of determining
whether it is identical or confusingly similar); see also Pomellato S.p.A v. Tonetti, D2000-0493
(WIPO July 7, 2000) (finding <pomellato.com> identical to the
complainant’s mark because the generic top-level domain (gTLD) “.com” after the
name POMELLATO is not relevant).
Respondent’s use of
the domain name to direct Internet users to its skin products website is a use
in connection with a bona fide offering of goods or services. Goods were actually advertised and sold,
over a period of years. This means
Respondent has rights and legitimate interests in the domain name under Policy
¶4(c)(i). See Scholastic
Inc. v. Master Games Int’l, Inc.,
D2001-1208 (WIPO Jan. 3, 2002) (finding that the respondent’s use of the
disputed domain name for a website regarding chess tournaments, particularly
because the domain name appropriately described both the target users of the
respondent’s services and the nature of the respondent’s services, was a bona
fide use of the domain name); see also SFX Entm’t, Inc. v. Cushway,
D2000-0356 (WIPO July 10, 2000) (finding that the respondent had rights and
legitimate interests in the domain name where the respondent began demonstrable
preparations to use the domain name in connection with a bona fide
offering of goods or services).
The chronology of relevant events is as
follows:
·
February
17, 1995: The document assigning Respondent the registration of the AHAVA
trademark was filed with the USPTO.
·
May 5,
1995: Respondent registered the <ahava.com> domain name. Shortly after this, Dead Sea Laboratories,
Inc. provided technical support and content to help Respondent to establish its
web site.
·
October 28,
1997: Respondent’s assignment of the AHAVA trademark was filed with the USPTO.
Neither Dead Sea Laboratories, Inc. nor
any person claiming rights from it, such as Complainant, objected to
Respondent’s registration of the <ahava.com> domain name until
December 16, 2004 (the date of Attorney Reuven Behar’s letter to Attorney
Steven Certilman). This amounts to
3,543 days. The reason for this delay
is not explained.
During all of this time, Respondent was
using the domain name to sell products.
Dead Sea Laboratories, Inc. actually helped Respondent to establish the
web site. Under similar circumstances
in the past, this Panel has held that the respondent acquires some right under
the UDRP, even though respondent may not have acquired any trademark rights (an
issue which is beyond the scope of this Panel’s jurisdiction). See Gap (Apparel) Inc. v. Republic
Jewelry & Collectibles, FA 347795 (Nat. Arb. Forum, Dec. 11, 2004)
Respondent registered the domain name in
connection with its previous distributorship relationship with Dead Sea
Laboratories, Inc., meaning Respondent had rights or legitimate interests in
the disputed domain name at the time of registration pursuant to Policy
¶ 4(a)(ii). See Mark Travel Corp. v.
ATHS, FA 154644 (Nat. Arb. Forum May 29, 2003) (“[W]ithout a specific
demarcation of how far the trademark is used [where the respondent was an
authorized distributor of the complainant]. . . it is clear the trademark may
be used in advertisements for the trademarked service” in holding that the
respondent was able to avail itself of the safe harbors of Policy ¶¶ 4(c)(i)
and (iii)); see also Grobet File Co. of Am., Inc. v. Exch. Jewelry
Supply, FA 94960 (Nat. Arb.
Forum July 14, 2000) (“Within its rights as a distributor, therefore,
Respondent registered the domain name and sold Complainant’s legitimate goods
online. In sum, Respondent has successfully shown that it was using the
<grobet.com> domain name and web site in connection with the bona fide
offering of goods and services, before any notice of the dispute.”).
Respondent’s
argument that it is known by the AHAVA name is convincing because of the
October 21, 2004 South Carolina corporate tax return showing that name on
it. The fact Respondent’s corporate
existence was terminated by the South Carolina Secretary of State does not
affect the outcome of this case. The
corporation really existed. Such
dissolutions are common within the United States. Upon learning it was forfeited, Respondent immediately began
steps to be reinstated (which usually has a retroactive effect under local
law).
In order to prevail on this element, the
domain name must be registered and used in bad faith. See Agent Host Co. v. Host Dot Com Invs.,
AF-0343 (eResolution Oct. 16, 2000).
It is important to note this element requires the conjunctive
rather than the disjunctive.
Bad faith upon registration is determined
at the time the domain name was initially registered. The renewal of a domain name is not a “registration” of the
domain name under the UDRP. See Substance Abuse Mgmt., Inc. v. Screen
Actors Modesl [sic] Int’l, Inc.(SAMI), D2001-0782 (WIPO Aug. 14,
2001); see also PAA Labs. GmbH v. Printing Arts Am., D2004-0338 (WIPO
July 13, 2004). The fact this domain
name may have been renewed is immaterial.
Respondent
had rights or legitimate interests in the disputed domain name at the time of
registration because it owned the registered trademark, meaning Respondent did
not register the domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See
Schering AG v. Metagen GmbH,
D2000-0728 (WIPO Sept. 11, 2000) (finding that the respondent did not register
or use the domain name <metagen.com> in bad faith where the respondent
registered the domain name in connection with a fair business interest and no
likelihood of confusion was created); see also DJF Assocs., Inc. v. AIB Communications, FA 95612 (Nat. Arb. Forum
Nov. 1, 2000) (finding the respondent has shown that it has a legitimate
interest in the domain name because the respondent selected the name in good
faith for its website, and was offering services under the domain name prior to
the initiation of the dispute); see also MatchMaker Int’l Dev. Corp. v.
Kaiser Dev. Corp., FA 146933 (Nat. Arb. Forum May 9, 2003) (Panelist David
Sorkin, dissenting) (finding that the respondent’s reasonable belief in its
legitimate right to register the disputed domain name precluded a finding of
bad faith registration).
It
is very common for someone who has rights to register a domain name to
subsequently lose those rights. Simply
put, the ICANN UDRP is not designed to address such circumstances. See Agent Host Co. v. Host Dot Com Investments,
AF-0343, October 16, 2000, Gap (Apparel) Inc. v. Republic Jewelry &
Collectibles, FA0410000347795 (12/11/2005), Urbani Tartufi s.n.c. v.
Urbani U.S.A., D2003-0090 (WIPO April 7, 2003) (finding that the disputed
domain name was not registered in bad faith where the original registration
occurred in the context of a healthy distributor relationship between the
parties which was subsequently revoked by the complainant); see also Gorstew Ltd., Jamaica & Unique Vacations
v. Twinsburg Travel, No. FA 94944 (Nat. Arb. Forum July 7, 2000) (finding
no bad faith where the respondent used <sandalsoutlet.com> and other
domain names incorporating the SANDALS mark, as an agent, in good faith, on
behalf of Sandals Resorts).
UDRP
proceedings are summary, documents-only proceedings. Panels do not examine witnesses.
Legal issues are usually not fully briefed because we are concerned with
the UDRP and not the entire majesty of the law. Counsel does not make oral argument to the Panel. Panels do not normally ask questions of the
parties, meaning factual issues are not as fully developed as they might be in
normal court proceedings.
All
of this goes to the one virtue of these proceedings: UDRP proceedings are
fast. The need for speed in determining
who owns a domain name is obvious in the electronic commerce world. UDRP proceedings take months, while court
proceedings often take years. In
exchange for a fast proceeding, the designers of the process made these
proceedings “non-binding” – meaning they have no res judicata
effect. When it comes to determining
the nature and scope of the parties’ relationship, that is up to a court to
determine after hearing all of the facts and arguments of counsel.
DECISION
Having
failed to establish all three elements required under the ICANN Policy, the
Panel concludes that relief shall be DENIED.
Houston Putnam Lowry, Chartered
Arbitrator, Panelist
Dated: May 31, 2005
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