DECISION

 

Localvore, Inc. v. Mary Anne Kristiansen / Hannah Grimes Center

Claim Number: FA1910001868156

 

PARTIES

Complainant is Localvore, Inc. (“Complainant”), represented by Justin W. McCabe of Dunkiel Saunders Elliott Raubvogel & Hand PLLC, Vermont, USA.  Respondent is Mary Anne Kristiansen / Hannah Grimes Center (“Respondent”), represented by Damian Wasserbauer, of Wasserbauer IP Law PLLC, New Hampshire, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <localvore.com>, registered with GoDaddy.com, LLC.

 

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.

 

The Honourable Neil Anthony Brown QC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on October 23, 2019; the Forum received payment on October 23, 2019.

 

On October 24, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <localvore.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 October 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 18, 2019 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@localvore.com.  Also on October 29, 2019, 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 timely Response was received and determined to be complete on November 18, 2019.

 

On December 2, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

    Complainant made the following contentions.

 

1.    Complainant, Localvore, Inc., submits that it is a Vermont corporation that is ‘in the business of promoting, advertising, and allowing for the discovery of restaurants, farmers, producers, and retailers who are sourcing locally, creating great food, and supporting their communities”.

2.    Complainant has rights in the LOCALVORE TODAY mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,950,825, registered May 3, 2016). See Compl. Ex. B.

3.    Complainant has rights in the LOCALVORE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,244,607, registered Jul. 18, 2017). See Compl. Ex. B.

4.    Complainant has used the LOCALVORE TODAY and LOCALVORE marks in conjunction with its services since the year 2012.

5.    Complainant has offered to buy the disputed domain name from Respondent for $5000.

6.     Respondent’s <localvore.com> domain name is identical or confusingly similar to Complainant’s LOCALVORE TODAY and LOCALVORE marks. Respondent uses the mark in its entirety and adds the “.com” generic top-level domain (“gTLD”).

7.    Respondent has no rights or legitimate interests in the <localvore.com> domain name.

8.    Respondent is not commonly known by the disputed domain name and Complainant has not granted Respondent permission or a license to use the LOCALVORE TODAY or LOCALVORE marks for any purpose.

9.    Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial fair use. Instead, Respondent uses the disputed domain name to redirect Internet users to its own website <hannahgrimesmarketplace.com/our-artisans> where it offers goods and services for the purpose of commercial gain. That website “does not mention the word localvore after a review of all its webpages”.

10. Respondent is not using the domain name for a bona fide offering of goods or services under the name “localvore” but uses it only to confuse customers and prospective customers of Complainant who mistakenly go to Respondent’s domain name.

11. Respondent registered and uses the <localvore.com> domain name in bad faith.

12. Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or comment in an attempt to create a likelihood of confusion with Complainant’s mark.

13. Complainant has offered to Respondent to negotiate the purchase of the disputed domain name but Respondent has not responded to that proposal.

 

B. Respondent

    Respondent made the following contentions.

 

1.    Complainant’s trademarks are for a generic term that should not have been registered as  trademark.

2.    Respondent has used the word ‘localvore’ in its various qctivities since January 2006 and has used the disputed domain  name continuously as part of those activities. In particular, Respondent has been involved in the localvore regional local food system since 2006.

3.    There is and has been widespread third party use of the word “localvore” as  dictionary word.

4.    Complainant itself has long acknowledged the generic nature of the word  “localvore” and consequently Respondent’s rights to use the disputed domain name and its senior status.

5.    Accordingly, the disputed domain  name is not identical or confusingly similar to a trademark or service in which the Complainant has rights.

6.    Respondent has every right and legitimate interest in registering the disputed domain name.

7.    The domain name is a dictionary word over which Complainant has no monopoly.

8.    To prevent the use of a generic expression in a domain name would be inimical to the proper workings of the UDRP.

9.    Respondent has used the term “localvore” publicly and in the domain name since the year 2006.

10. There have thus been 13 years of use by the Respondent of the term and in particular of its association with the Monadnock Localvore Project, the Localvore Project including in the Monadnock Region of New Hampshire and the Hannah Grimes Localvore Project, giving rise to a natural association between the Hannah Grimes Center and the domain name.

11. Respondent’s right and legitimate interest in the domain name thus arises because of its use in reaching out to local consumers and association with locally grown foods.

12. Respondent did not register and has not used its <localvore.com> domain name in bad faith.

13. Respondent acquired the disputed domain name six years prior to the claimed first use of the LOCALVORE mark by Complainant in the year 2012.

14. Respondent has not attempted to sell the domain name to Complainant.

15. Respondent uses the disputed domain name to offer separate services from those that the Complainant offers.

16.  It has never been the intention of Respondent to  trade off the good will of any other party.

 

FINDINGS

1.    Complainant is a United States company engaged inter alia in promoting and advertising providers of goods and services that are locally sourced and has been engaged in that activity since 2012.

 

2.    Respondent has been engaged in the localvore regional local food system and related activities since 2006.

 

3.    Complainant has established its trademark rights in the following trademarks:

 

(a)  the LOCALVORE TODAY mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,950,825, registered May 3, 2016); and

 

(b)  the LOCALVORE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,244,607, registered Jul. 18, 2017).

 

4.    The evidence establishes that the disputed domain name is identical to the LOCALVORE mark.

 

5.    The evidence establishes that Respondent has a right or legitimate interest in the disputed domain name.

 

6.     The evidence establishes that Respondent did not register or the disputed domain name in bad faith.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

The first question that arises in this case is whether the Complainant has a trademark or service mark on which it can rely. That is a requirement that a complainant must satisfy to show that it has standing to bring the claim. To meet this requirement Complainant submits that it has trademark rights in two registered trademarks through their registration with the USPTO.

 

The two trademarks are:

1.    the LOCALVORE TODAY mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,950,825, registered May 3, 2016); and

 

2.    the LOCALVORE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,244,607, registered Jul. 18, 2017).

 

Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Here, Complainant has provided the Panel with a copy of its USPTO registration for each trademark.

 

The Panel notes from examining those registrations that in each case they record the fact that, according to the Complainant, their first use was on August 27, 2012 and their first use in commerce was on the same date. That is significant because the disputed domain name was registered well prior to that date, namely on February 13, 2006. In other words, the Respondent registered the domain name on, and has held it since, February 13, 2006 , prior to the date when the Complainant says it first used the trademark. That will obviously create a problem for the Complainant, but it is a problem that may be left until later in this decision, as the only question before the Panel at the moment is whether the Complainant “has” a trademark, which it clearly does. The Complainant has thus met its obligation to show that it has a trademark.

 

The second question that arises is whether the domain name is identical or confusingly similar to either of the trademarks. This one of those cases where the entirety of a trademark, in the case of LOCALVORE, is contained in the domain  name. That being so, Complainant argues that Respondent’s <localvore.com> domain name is identical or confusingly similar to Complainant’s LOCALVORE mark. Registration of a domain name that contains a mark in its entirety and adds only a gTLD the panel may find that the domain name is identical to the mark. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”). Here, Complainant argues that Respondent incorporates the LOCALVORE mark in its entirety and adds the “.com” gTLD. Therefore, the Panel is obliged to agree and it finds that the domain name is identical to the LOCALVORE  mark per Policy ¶ 4(a)(i).

 

The Respondent argues that this is not so, because the domain name , like the trademark, consists of a dictionary or generic word, that the trademark is thus liable to be set aside and that there is therefore no trademark with which the domain name can be said to be identical or confusingly similar.

 

The precise nature of the domain name will of course figure prominently in this decision. At this point in the proceeding however, the Panel’s view, consistent with the regular view of other panels, is that those matters should be left until the issue of rights and legitimate interests and bad faith are dealt with later in the decision.

 

At the present, the Panel finds that the Complainant has shown its standing to bring the claim,  that it has proved its trademark and that the domain name is identical to the LOCALVORE mark.

 

The Complainant has thus established the first of the three elements that it must prove to be successful.

 

Rights or Legitimate Interests

It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain names and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

The Panel has given careful consideration to the evidence and submissions provided by the parties. As a result, the Panel finds that the Complainant has not made out the prima facie case it is required to make. In fact, unlike some cases of this nature, that conclusion is not finely balanced but is very clear. Rather, the Complainant has fallen well short of establishing a prima facie case. Even if a prime facie case had been established, the strong material filed on behalf of the Respondent has easily rebutted it. See High Adventure Ministries v. JOHN TAYLOE / VOICE OF HOPE, FA 1737678 (Forum Aug. 9, 2017) (holding that a complainant’s failure to meet its burden satisfactorily suggests respondent has rights and legitimate interests in the domain name under UDRP ¶ 4(a)(ii)); see also JJ206, LLC v. Erin Hackney, FA 1629288 (Forum Aug. 25, 2015) (finding that a respondent may defeat a complainant’s established case by showing it has made demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services).

 

The Panel has reached those conclusions for the following reasons.

 

First, the case submitted by the Complainant as to why the Respondent does not have a right or legitimate interest in the domain name has no merit at all and the result is that there was and is no obstacle to the Respondent registering and using the domain name , subject of course to the general law and the terms of the Policy under which it holds the domain name. Indeed, it did exactly that, long before the Complainant acquired its trademark and long before the Complainant first used the expression, even on its own position. The trademark for LOCALVORE TODAY and the trademark for LOCALVORE were both first used , according to the Complainant, on August 27, 2012 which was well after the domain name was registered on February 13, 2006. The Respondent was thus first in time in establishing its interests and by several years. There is absolutely no evidence that the Respondent has used the domain name for anything other than a legitimate business and all of the evidence is to the effect that  it has been conducting a legitimate and socially worthwhile enterprise for years. Moreover , it has been conducting one that comes squarely within the meaning of the localvore movement of which it is part. The Panel therefore concludes that when the Respondent registered the domain name in 2006 it had a right to do so and thereby acquired a right to the domain name which it has retained since then.

 

Secondly, the domain name consists of a dictionary word with a recognized meaning and a word that invokes the description of a recognized activity. As such, all things being equal, it falls into that category of domain names that can and often do, give rise to a legitimate interest in the domain name holder. The reason why this is so is that usually they cannot be trademarked and even if they are trademarked they  do not create monopoly rights, meaning that third parties have the right to use them, including the right to use them as domain names. That is a fair description of how the Respondent, in the view of the Panel, comes to have a right or legitimate interest in the domain name. There are many prior UDRP panel decisions that support that view.

 

In the present case, although the word at issue is comparatively new, it is recognized in at least some dictionaries and has a meaning that is understood at least by those who are aware of the localvore movement. In support of that position, the Respondent has adduced 12 exhibits of meanings and uses of the word and the related word “locavore”. This evidence has not been replied to or rejected and must be accepted as carrying considerable weight. There is therefore no doubt that the word has a meaning and that it has been and is being used by the Respondent in that meaning. As part of localvore movement it is significant that third parties have taken to using the word in the same way in their business names and activities. The Respondent has adduced  a further 12 exhibits of hyperlinks illustrating how the word has been used. The Respondent has also adduced evidence of its own use of the word in its various activities.

 

The rights of a party such as the Respondent to use the sort of word that now forms the current domain name are , of course, not unlimited. The registrant should not use the domain name as a guise for trading on the trademark owner or using the name for its value in invoking the complainant’s trademark. The word must be used in its generic sense and not as a weapon to target or harm the trademark owner. There is no evidence at all to suggest that the Respondent in the present case has behaved in an untoward or inappropriate way. In fact, all of the evidence is to the effect that since the Respondent registered the domain name in 2006 it has used it within its generic meaning and for activities that are clearly within the ambit of the localvore movement. This has confirmed the legitimacy of the domain name and the right of the Respondent to hold and use it in the way it has.

 

Thirdly, the facts as they have been established also show the case to be one that comes within the precise criterion set out in paragraph 4 (c) (i) of the Policy, that is to say that there will be a right or legitimate interest in a domain name if :

 

“before any notice to you (the Respondent) of the dispute, your use of, or demonstrable preparations  to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;…”.

 

The use of the domain  name by the Respondent, even before the Complainant registered its trademark, was clearly bona fide, because the Respondent was conducting a legitimate business and was making a bona fide offer of its goods and services to and from local artisans and suppliers , which is the essence of the localvore movement and at a time that was well before there was any dispute arose with the Complainant. This is spelt out  in the Policy as a specific ground for a right or legitimate interest in the domain name and the Respondent has brought itself squarely within that provision.

 

The foregoing is thus another ground for finding that the Respondent has a right or legitimate interest in the disputed domain name.

 

The fact that the Respondent has built up a local involvement in its regional community in carrying out its worthwhile and recognized activities only strengthens the findings that the Panel makes.

 

Finally, although the result is not determined by this factor alone, the Panel notes that the Complainant has offered to buy the domain name from the Respondent for $5000. This would appear to suggest that, in the Complainant’s view, the Respondent does have at least some sort of right in the domain name and at least the right to sell it.

 

Accordingly, the Pane finds that the Respondent has a right or legitimate interest in the disputed domain name.

 

The Complainant has thus not established the second of the three elements that it must prove to be successful.

 

Registration and Use in Bad Faith

The first conclusion reached by the Panel on the issue of bad faith is that the Complainant has failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). The burden of proof is on the Complainant, but the Panel’s view, having considered all of the evidence and submissions, is that the Complainant has fallen well short of discharging its onus. In fact , there is little in the Complainant’s case on this issue other than assertions. In particular, it is not correct to say that Respondent could not use the domain  name without running afoul of Complainant’s trademark rights. The whole basis of the UDRP is that domain  names can and do live harmoniously together and there is no reason why that relationship should not exist in the present case, as it has in the past. See Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) (“Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith.”); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum July 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).

 

Secondly, the conclusion just stated follows from a further proposition that, as the Panel has concluded that Respondent has rights or legitimate interests in the <localvore.com> domain name pursuant to Policy ¶ 4(a)(ii), it is clearly open to the Panel to find that Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). The Panel so finds in the present case. See Record Connect, Inc. v. Chung Kit Lam / La-Fame Corporation, FA 1693876 (Forum Nov. 3, 2016) (finding that the issue of bad faith registration and use was moot once the panel found the respondent had rights or legitimate interests in the disputed domain name); see also Sheet Labels, Inc. v. Harnett, Andy, FA 1701423 (Forum Jan. 4, 2017) (finding that because the respondent had rights and legitimate interests in the disputed domain name, its registration of the name was not in bad faith).

 

Thirdly, and also following from conclusions already reached by the Panel, Respondent has contended that the <localvore.com> domain name is comprised entirely of a generic and common common term which has a variety of meanings apart from its use in Complainant’s mark. Moreover, Respondent contends that the registration and use of domain name comprising such a common term is not necessarily done in bad faith, but may well be done with a good faith intention of the domain name registrant to have a domain name that reflects its legitimate objectives. As the Panel finds that a respondent is free to register a domain name consisting of a descriptive or common term and that the domain name currently in dispute contains such a term, the Panel now finds that Respondent did not register or use the <localvore.com> domain name in bad faith under Policy ¶ 4(a)(iii), but in good faith  to further its legitimate objectives. See Zero Int'l Holding v. Beyonet Servs., D2000-0161 (WIPO May 12, 2000) ("Common words and descriptive terms are legitimately subject to registration as domain names on a 'first-come, first-served' basis."); see also Target Brands, Inc. v. Eastwind Group, FA 267475 (Forum July 9, 2004) (holding that the respondent’s registration and use of the <target.org> domain name was not in bad faith because the complainant’s TARGET mark is a generic term); see also Miller Brewing Co. v. Hong, FA 192732 (Forum Dec. 8, 2003) (finding that because the respondent was using the <highlife.com> domain name, a generic phrase, in connection with a search engine, the respondent did not register and was not using the disputed domain name in bad faith). Here, Respondent shows that Complainant’s LOCALVORE mark is a term that describes a person who buys food and other products locally. In addition, there are several website domain names not related to Complainant that are composed with the LOCALVORE mark. See Resp. Ex. 42. All of this amounts to good and not bad faith.

 

Therefore, the Panel finds that Respondent did not register the disputed domain name in bad faith per Policy ¶ 4(a)(iii).

 

Fourthly, as Respondent’s registration of the <localvore.com> domain name predates Complainant’s first claimed rights in the LOCALVORE mark, Complainant generally cannot prove registration of the domain name  in bad faith per Policy ¶ 4(a)(iii), as the Policy requires a showing of both bad faith registration and use. See Platterz v. Andrew Melcher, FA 1729887 (Forum Jun. 19, 2017) (“Whatever the merits of Complainant’s arguments that Respondent is using the Domain Name in bad faith, those arguments are irrelevant, as a complainant must prove both bad faith registration and bad faith use in order to prevail.”); see also Faster Faster, Inc. DBA Alta Motors v. Jeongho Yoon c/o AltaMart, FA 1708272 (Forum Feb. 6, 2017) (“Respondent registered the domain name more than a decade before Complainant introduced the ALTA MOTORS mark in commerce. Respondent therefore could not have entertained bad faith intentions respecting the mark because it could not have contemplated Complainant’s then non-existent rights in [the mark] at the moment the domain name was registered.”).That general principle should be applied in  the present case, which leads to a finding that the Respondent did not register the domain name in bad faith.

 

Fifthly, and following on from that point, Respondent argues that it registered the <localvore.com> domain name prior to Complainant acquiring its alleged rights in the mark. That has been made out on the evidence and is beyond argument.  Where a respondent registers a domain name prior to a complainant obtaining rights to a mark, a panel will, in the absence of some unique factor producing a different result, not find that the respondent registered the domain name in bad faith. It should be understood that the reason why that is so is that there must be some object to which the bad faith is directed. As the whole argument in these cases is that a trademark is being infringed by the registration of the domain name, that clearly cannot be the case where there is no trademark to which the bad faith is directed. See Telecom Italia S.p.A. v. NetGears LLC, FA 944807 (Forum May 16, 2007) (determining the respondent could not have registered or used the disputed domain name in bad faith where the respondent registered the disputed domain name before the complainant began using the mark). Here, Respondent provides a copy of the WHOIS record for the <localvore.com> domain name, which was registered February 13, 2006, 11 years prior to Complainant’s USPTO registration of the LOCALVORE mark. See Respn. Ex. 41. Accordingly, the domain name could not be registered with bad faith  being directed at a non-existent trademark. The same principle applies if the domain name were registered before the trademark owner was incorporated, which has not been revealed in the present case. Therefore, the Panel finds that Respondent did not register the disputed domain name in bad faith per Policy ¶ 4(a)(iii).

 

Moreover, the Respondent has not been guilty of any of the normal or usual indicia of bad faith. Thus, for example, Respondent has not attempted to sell the <localvore.com> domain name to Complainant. There is no bad faith under Policy ¶ 4(b)(i) where it is the Complainant that initiates an offer to buy the disputed domain name. See Betco Corporation, Ltd. v. R. Zimmerman / envirozymes, FA 1787028 (Forum June 25, 2018) (declining to find bad faith under Policy ¶ 4(b)(i) because “In this case, the Respondent did not initiate discussions about selling the name but only responded to an inquiry from Complainant.  Further, this discussion did not take place until some three years after Respondent acquired the Domain Name, and while there was no independent evidence of this presented, the Respondent at least alleges that at the time of registration he was and still is thinking about using it in connection with a business venture.”). Here, Respondent provides its conversations with Complainant where Complainant attempts to purchase the disputed domain name after being informed on numerous occasions that the domain is not for sale. See Resps. Ex. 49. Therefore, the Panel finds that Respondent has not acted in bad faith per Policy ¶ 4(b)(i).

 

Indeed, all of the evidence suggests that Respondent registered and then used the <localvore.com> domain name in good faith. Registration of a domain name for a specific use and purpose may be evidence of good faith per Policy ¶ 4(a)(iii). See Who Dat?, Inc. v. Direct Privacy / Domain Name Proxy Service, Inc Privacy ID# 12963971, FA 1759773 (Forum Dec. 26, 2017) (declining to find the <whodatnation.com> domain name was registered or used in bad faith where the name was primarily used as a fan site for the New Orleans Saints football team). Here, Respondent argued that it used and continues to use the disputed domain name in good faith to provide localvore services to internet users in the New Hampshire area. The Panel accepts that this has been made out on the evidence and the Panel so finds. Moreover, these services offered by Respondent are separate from the services that the Complainant offers. Therefore the Panel finds that Respondent registered and used the disputed domain name in good faith per Policy ¶ 4(a)(iii).

 

The Complainant has thus not established the third of the three elements that it must prove to be successful.

 

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <localvore.com> domain name REMAIN WITH Respondent.

 

 

The Honourable Neil Anthony Brown QC

Panelist

Dated:  December 4, 2019

 

 

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