Maine Bait Company v. Robin Brooks a/k/a Maine Bait
Claim Number: FA0107000098246
The Complainant is Maine Bait Company, Newcastle, ME (“Complainant”) represented by Alfred C. Frawley, of Preti, Flaherty, Beliveau, Pachios and Haley, LLC. The Respondent is Robin Brooks a/k/a Maine Bait, Deblois, ME (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mainebait.com>, registered with Network Solutions.
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.
R. Glen Ayers served as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on July 20, 2001; the Forum received a hard copy of the Complaint on July 23, 2001.
On July 24, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name <mainebait.com> is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 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 July 30, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 20, 2001 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 email@example.com by e-mail.
A timely response was received and determined to be complete on August 20, 200l. An Additional Submission was received from Complainant dated August 22, 200l, and styled “Reply to Respondent ....”
On August 23, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed R. Glen Ayers as Panelist.
The Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant asserts that the domain name mainebait.com was registered in May 2000 by an individual located in Cherryfield, Maine. The domain name is alleged to be identical to the “common law service mark” used by Complainant for nearly 40 years to identify its bait products.
Complainant asserts that Respondent has no rights in the common law mark and has no relationship with the Complainant. “The only connection between the two is that Respondent’s principal once dug bait for the Complainant.”
Complainant goes on to assert that the registration of the domain name is causing “confusion in the marketplace.” Examples of use by Complainant are attached.
Complainant asserts that, under Maine state law, Respondent has no right to use the name because Complainant has registered the corporate name “Maine Company” with the Maine Secretary of State; it then alleges that the registration “precludes the use of the business name ‘Maine Bait’” by others.
Complainant goes on to assert that the Respondent is intentionally diverting consumers from the Complainant “and has set about to tarnish the service mark MAINE BAIT.”
Complainant asserts that the actions taken by Respondent are in “bad faith,” because the actions have been taken for commercial gain; that the use of the domain name was intended to and actually has diverted customers from Complainant to Respondent for Respondent’s commercial gain.
Respondent claims that Complainant has failed to establish that it has rights to the MAINE BAIT mark such that Complainant can claim exclusive rights to prevent Respondent from using its <mainebait.com> domain name. Respondent notes that the domain name (as well as the alleged mark) are a combination of a geographic term, which identifies the location of the product, and a generic description of the product.
Other issues are raised in the Response, including allegations about the conduct of the Complainant and other bloodworm buyers, as well as allegations about the status of the bloodworm harvesting industry, none of which are particularly relevant.
C. Additional Submissions
In its “Reply to Response of Respondent ...,” Complainant asserts that the Respondent’s submission shows that she knew of the Complainant’s business and was aware of its use of the name “Maine Bait” before Respondent registered the domain name. The Reply also argues that “bad faith” of Respondent is evident from the content and tone of the Response. In effect, the Reply asserts that the Respondent has proven Complainant’s case in the Response.
This is a case about the harvest and sale of bloodworms on the tidal flats of Maine. Complainant and Respondent are apparently competing in this industry.
While the Complaint, Response and Reply show some evidence of "bad faith" on the part of the Respondent, as that term is used in the ICANN Policies and Rules, the simple fact is that the Complainant has made no showing of a registered mark – and therefore probably does not hold a registered trade or service mark – and has made no showing that the name “Maine Bait” is a common law mark. Forgetting for a moment the elements necessary to show the existence of a common law mark, this panel cannot imagine that under any circumstances a mark would issue or could be created at common law in the term or phrase “Maine Bait.” If there ever was a generic term, “Maine Bait” qualifies. Like “southern charm” or “Washington gridlock,” it is a phrase that is as common as, well, as “dirt.”
Combinations which are merely a combination of a geographic and generic term are not protected under Policy ¶ 4(a)(i), which requires that the Complainant hold some type of mark which is identical to or confusingly similar to the domain name. See SOCCERPLEX, INC. v. NBA Inc., FA 94361 (Nat. Arb. Forum May 25, 2000) (finding that the Complainant failed to show that it should be granted exclusive use of the domain name <soccerzone.com>, as it contains two generic terms and was not exclusively associated with Complainant's business); see also Travel Berkeley Springs, Inc. v. Glens Country Estate, FA 96347 (Nat. Arb. Forum Feb. 16, 2001) (finding that Complainant could not have superior right to use of “Berkeley Springs” to the exclusion of other entities, particularly where there were many other businesses that used geographic names as part of their business name); see also Lucky Money, Inc. v. ilovesschool.com, FA 96383 (Nat. Arb. Forum Mar. 9, 2001) (finding Complainant cannot claim exclusive common law rights to an expression - Lucky Money – comprised of generic terms) (this Panelist served on the Panel which issued the Lucky Money opinion).
Therefore, irrespective of the bad faith issue, the Complaint does not reach square one, and the other issues need not be considered.
Of course, this very Complaint is a form of “cyberbullying.” This Panelist always finds it troubling when a Complainant attempts to use this forum to take away a domain name where any reasonable review of the ICANN Policies and Rules would show that the Complainant’s case is extremely weak and, more importantly, when it may well be that the Complainant holds greater economic power and commands greater resources than the Respondent.
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.
Identical and/or Confusingly Similar
Complainant holds no mark, at common law or otherwise, in the term “Maine Bait.”
Rights or Legitimate Interests
Because the first element is not proven, there is no need to make any finding on this issue.
Registration and Use in Bad Faith
While the Respondent may be acting in “bad faith,” such is irrelevant given that no mark exists.
The domain name shall not be transferred to Complainant.
R. Glen Ayers, Panelist
Dated: August 28, 2001
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