Ridgegate Investments, Inc. v. Lane Hornung
Claim Number: FA1706001737530
Complainant is Ridgegate Investments, Inc. (“Complainant”), represented by Daniel J. Block, Colorado, USA. Respondent is Lane Hornung (“Respondent”), represented by Jordan C. May of Frascona Joiner Goodman & Greenstein PC, Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <liveridgegate.com>, registered with GoDaddy.com, LLC.
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.
Roberto A. Bianchi as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 27, 2017; the Forum received payment on June 27, 2017.
On June 28, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <liveridgegate.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 18, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@liveridgegate.com. Also on June 28, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A Response was received and determined to be complete on July 19, 2017.
On July 26, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Roberto A. Bianchi 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant's contentions are as follows:
Complainant engages in the planning and development of residential and commercial communities. Complainant uses the RIDGEGATE mark in conjunction with its business practices. Complainant registered the RIDGEGATE mark with the Colorado Secretary of State (e.g., Reg. No. 20011215899; registered Sept. 11, 2001). See Compl., at Attached Annex 1. Respondent’s <liveridgegate.com> domain name is confusingly similar to Complainant’s RIDGEGATE mark because both parties operate in the real estate business and the disputed domain may be confused with Complainant’s <ridgegate.com>. See Compl., at ¶ 7 a(3).
Respondent does not have rights or legitimate interests in <liveridgegate.com>. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the RIDGEGATE mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate or fair use of the domain. Rather, Respondent’s <liveridgegate.com> domain name resolves to an inactive webpage. However, Complainant indicates that <liveridgegate.com> previously resolved to a website “for the sale and purchase of homes in Complainant’s Ridgegate development.” See Compl., at ¶ 7(5) & (7). Further, Respondent offered to sell the domain name to Complainant for greater than out-of-pocket costs.
Respondent registered and used <liveridgegate.com> in bad faith. The disputed domain name attracts Internet users to Respondent’s website for commercial benefit, thereby creating confusion as to the affiliation Respondent has with Complainant. Respondent registered <liveridgegate.com> with actual knowledge of Complainant and its rights to the RIDGEGATE mark. Further, Respondent offered to sell the domain name to Complainant for greater than out-of-pocket costs.
B. Respondent
Respondent contends the following:
Respondent is the current owner of <liveridgegate.com>. Respondent is a licensed real estate broker engaged in real estate brokerage services. Respondent’s business is dissimilar from Complainant’s, as Complainant is engaged in development and construction of residential and commercial real estate, not the sale of said real estate. See Resp., at ¶ 5 a(v). Complainant does not have federal trademark rights, thereby limiting its rights to RIDGEGATE to within the Colorado border. Because Respondent’s <liveridgegate.com> can be accessed beyond Colorado’s borders, Complainant cannot assert rights in those areas.
Respondent’s <liveridgegate.com> is not confusingly similar to Complainant’s RIDGEGATE mark because the mark is not used in isolation and the addition of the term “live” provides a “visually different appearance, sound, and connotation.” See Resp., at ¶5 a(i). Moreover, Complainant’s RIDGEGATE mark is weak because it is a geographically descriptive term that many other parties use the word “Ridgegate” in their domain names. See Resp., at Attached Annex 4.
Respondent’s <liveridgegate.com> is used in conjunction with a bona fide offering of goods or services. The disputed domain was developed as a marketing tool for a real estate broker client to present information regarding the Ridgegate neighborhood. Thus, Respondent, through its business, has become commonly known by <liveridgegate.com>. Respondent was not using the domain name as a trademark, but in a descriptive sense representative of the geographical area in which Respondent worked. See Resp., at Attached Annexes 2–3.
Respondent did not register or use <liveridgegate.com> in bad faith. Respondent did not intend to register the domain for the purpose of renting, selling, or transferring it for valuable consideration. Complainant offered to pay Respondent for the transfer of <liveridgegate.com>. However, Complainant rejected Respondent’s fee of $1,229.95. See Resp., at Attached Annex 11. Respondent did not register <liveridgegate.com> with intent to attract internet users for commercial gain or disrupt Complainant’s business. Complainant is not a competitor of Respondent due to the differences in their businesses within the real estate services market. Respondent registered <liveridgegate.com> without constructive and/or actual knowledge of Complainant’s rights in the RIDGEGATE mark.
Based on Respondent`s unilateral consent to transfer, the Panel orders the transfer of the disputed domain name to Complainant, without making any further findings.
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."
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.
Preliminary Issue: (a) Deficient Response
The Response was submitted on July 19, 2017, after the twenty (20) day deadline to respond in this proceeding expired on July 18, 2017. Thus, the National Forum does not consider the Response to be in compliance with ICANN Rule 5. The Panel notes that a panel may, at its discretion, choose whether to accept and consider a deficient response. See Sears Brands, LLC v. Airhart, FA 1350469 (Forum Dec. 2, 2010) (electing to not accept and not consider the response as the response was not in compliance with ICANN Rule 5); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. LaFond, FA 1362225 (Forum Jan. 7, 2011) (deciding that while the response was deficient, “the Panel has nonetheless decided to consider the deficient Response.”); see also True Value Company v. Premierco / Robert Aronin, FA 1421276 (Forum, Jan. 31, 2012) (the panel chose to accept and consider the response filed on January 18, 2012 although the deadline to respond had expired on January 23, 2012.)
Since the Response was submitted just one day after the deadline, and before this Panel was appointed on July 26, 2017, the Panel considers that this late submission does not cause any relevant prejudice to the expeditiousness of the proceeding. Accordingly, in exercise of its discretion, the Panel decides to admit and consider Respondent`s Response.
Preliminary Issue: (b) Consent to Transfer
In its Response, Respondent unilaterally consents to transfer the <liveridgegate.com> domain name to Complainant, “if the transfer can be done without any finding of any alleged liability or likelihood of confusion.” See Resp., at ¶ 6. The Panel notes that Respondent`s consent to transfer matches the remedy of transfer sought by Complainant, and that Respondent`s request that the Panel`s order for transfer be made without finding any alleged liability or of likelihood of confusion does not set any real condition to the Respondent’s request or to the Panel`s order. Transfers based on unilateral consent are ordered without making any such findings (whether favorable or unfavorable to any of the Parties). Accordingly, the Panel decides to forgo the traditional UDRP analysis. See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Anheuser - Busch, Incorporated v. Web House, FA 1368301(Forum Feb. 8, 2011) (“Where a respondent unilaterally and unconditionally consents to transfer the domain name in dispute, panels may also issue orders for transfer of disputed domain names without making findings as to Policy ¶ 4(a). In the present case, Respondent requests that the Panel forgo the usual UDRP analysis of the three elements of Policy ¶ 4(a) and make an order for the transfer of the domain name to Complainant. Respondent’s request that the Administrative Panel approve the remedy requested by Complainant amounts to a unilateral consent to transfer. Thus, the instant case is similar to those cases where panels granted transfer based on respondent’s consent. See American Airlines, Inc. v. Proxied Domains - wlsa Client Account c/o Proxy Domain Manager, FA 1248138 (Forum April 8, 2009); see also Williams-Sonoma, Inc. v. EZ-Port, D2000-0207 (WIPO May 5, 2000) (although in Williams-Sonoma the respondent had not submitted any response).”) This Panel, like the panel in Williams-Sonoma, believes that “the better course is to enter an order granting the relief requested by the Complainant so that the transfer may occur without further delay.” )
Based on Respondent`s unilateral consent to transfer, it is Ordered that the <liveridgegate.com> domain name be TRANSFERRED from Respondent to Complainant.
Roberto A. Bianchi, Esq., Panelist
Dated: August 8, 2017
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