![](http://www.arb-forum.com/domains/decisions/Image10.gif)
P. O. Box 50191
Minneapolis, Minnesota 55405 USA
www.arbitration-forum.com
Tillamook County Creamery Association
COMPLAINANT,
VS.
CES Marketing Group
RESPONDENT.
DOMAIN NAME DISPUTE DECISION
Forum File No.: FA0003000094345
___________________________________________
The above entitled matter came on for an
administrative hearing on April 26, 2000 before the undersigned on the
Complaint of Tillamook County Creamery Association, hereafter "Complainant",
against CES Marketing Group, hereafter "Respondent". Complainant was
represented by Ben C. Fetherston, Jr., Post Office Box 2206, Salem,
Oregon 97308. David Wotherspoon, Fasken, Martineau, DuMoulin, 2100-1075
West Georgia Street, Vancouver, BC V6E 3G2, Canada represented the Respondent.
Upon the written submitted record, the following DECISION is made:
PROCEDURAL FINDINGS
Domain Name: Tillamook.com
Domain Name Registrar: Network Solutions,
Inc.
Domain Name Registrant: CES Marketing Group
Date of Domain Name Registration: October
9, 1996
Date Complaint Filed: March 23, 2000
Due Date for a Response: April 13, 2000
Date of Commencement of Administrative
Proceeding in Accordance with Rule 2(a)l and Rule 4(c): March 24, 2000
After reviewing the Complaint, and determining
it to be in administrative compliance, the National Arbitration Forum
(The Forum) forwarded the Complaint to the Respondent on March 24, 2000
in compliance with Rule 2(a), and the administrative proceeding was
commenced pursuant to Rule 4(c). In compliance with Rule 4(d), The Forum
immediately notified the above Registrar, Network Solutions, the Internet
Corporation for Assigned Names and Numbers (ICANN), and the Complainant
that the administrative proceeding had commenced. Respondent did submit
a response to The Forum within twenty (20) days pursuant to Rule 5(a).
On October 9, 1996, Respondent registered
the domain name "Tillamook.com" with Network Solutions, the entity that
is the Registrar of the domain name. By registering its domain name
with Network Solutions, Respondent agreed to resolve any dispute regarding
its domain name through ICANN's Rules for Uniform Domain Name Dispute
Resolution Policy, and the Uniform Domain Name Dispute Resolution Policy.
FINDINGS OF FACT
1 .Complainant owns the following federally
registered trademarks for TILLAMOOK: 533,033 and 1,390,970.
- Complainant first registered the mark "TILLAMOOK
on November 7, 1950. Complainant first used the mark "TILLAMOOK"
on April 15, 1918. Complainant first used the mark "TILLAMOOK" in
commerce on April 15, 1918.
- Complainant has widely and continuously used the
mark "TILLAMOOK" in connection with cheese, butter, ice cream and
other products. Through extensive use on products and in advertising,
TILLAMOOK has become a famous mark. Complainant has numerous domain
name registrations used in connection with its on-line activities
directly related to its trademark and its products. Those names
include: Tillamookcheese.org, Tillamookcheese.net, Tillamookcreamery.com,
Tillamook-cheese.com, Tillamookcheese.com, Tillamookfoodsales.com,
Tillamookfoods.com, and Tillamook.org.
- On October 9, 1996, Registrant registered the domain
name in controversy, "Tillamook.com" with the Registrar, Network
Solutions.
- The Registered domain name, "Tillamook.com", is
identical or confusingly similar to the trademark or service mark
in which the Complainant has rights and the Respondent does not
have any right or legitimate interest in respect of the domain name,
"Tillamook.com", which is the subject of the complaint.
- Both before and after the Respondent had notice
of the dispute, the Respondent never made any actual use of the
domain name. The Respondent has not used the domain name in connection
with a bona fide offering of goods or services, is not commonly
known by the domain name, and is not making a legitimate noncommercial
or fair use of the domain name.
- Respondent registered and used the domain name,
"Tillamook.com", in bad faith as is evidenced by the circumstances
which indicate that Respondent registered the domain name primarily
for the purposes of selling, renting, or otherwise transferring
the domain name registration to the Complainant who was the owner
of the trademark or service mark or to a competitor of the Complainant,
for valuable consideration in excess of Respondents documented
out-of-pocket costs directly related to the domain name. The Respondent
offered to sell the domain name to Complainant for $6,000, an amount
in excess of out of pocket costs directly related to the domain
name.
- The exclusivity of Complainants trademark
is protected under United States law.
- No evidence has been presented that Respondent
has any right or legitimate interest to the domain name as provided
in Rule 4(c).
- Complainants prayer for relief requests
that the domain name be transferred to Complainant.
CONCLUSIONS
The undersigned certifies that he has acted
independently and has no known conflict of interest to serve as the
Arbitrator in this proceeding. Having been duly selected, and being
impartial, the undersigned makes the following findings and conclusions:
1.The domain name "Tillamook.com", registered
by Respondent on October 9, 1996, with Network Solutions, is identical
or confusingly similar to Complainant's trademark TILLAMOOK.
- Respondent has stated that it plans to develop
the site "Tillamook.com" into an e-mail forwarding business and
it has offered evidence that it intends to do so with other geographic
name sites. Despite this assertion it is found that Respondent,
which has no claimed connection to the region Tillamook and no prior
use of the name, has no right or legitimate interests in Tillamook.com..
- Respondent registered and used the domain name
in bad faith as evidenced by circumstances indicating that Respondent
registered and acquired the domain name "Tillamook.com" primarily
for the purpose of selling, renting or otherwise transferring the
said domain name registration to the Complainant who is the owner
of the trademark or service mark, or to a competitor of the Complainant,
for valuable consideration in excess of Respondent's out-of-pocket
costs directly related to the domain name.
- Under ICANNs Uniform Domain Name Dispute
Resolution Policy Complainant has proven that the domain name should
be transferred to Complainant.
DECISION
Based upon the above findings and conclusions,
and pursuant to Rule 4(i), it is decided as follows:
THE UNDERSIGNED DIRECTS THAT THE DOMAIN
NAME "Tillamook.com" REGISTERED BY RESPONDENT BE TRANSFERRED TO COMPLAINANT.
Dated: April 26,2000, by Judge Karl V.
Fink (Ret.), Arbitrator