BRG Partners, LP (“Complainant”), lost its attempt to take the domain AspenHeights.com away from Wild Escape Theme Park who was represented by Traverse Legal.
However the panel found the lack of response to the Complainant’s emails was somehow fatal to a finding of Reverse Domain Name Hijacking (RDNH).
The Complainant had a trademark with the United States Patent and Trademark Office (“USPTO”) for ASPEN HEIGHTS, was filed Mar. 18, 2011, and registered Oct. 11, 2011, the domain name was registered on July 9, 2008
Here are the relevant findings of the three member panel:
This Panel has determined that, while there may be legitimate discussion and dispute regarding the first two elements set out above, the panel is unanimous in its conclusion that the Complainant has failed to establish bad faith registration and use as required under the UDRP.
The Panel finds that Respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
Respondent alleges that Complainant’s counsel sent several communications requesting that Respondent sell the domain name, including a “notice of interest” as well as LinkedIn chat messages to Respondent and its counsel.
Respondent claims that it did not respond to any of these requests, as it did not want to sell the domain name.
The Panel notes that there is evidence suggesting that it was Complainant, not Respondent, who sought to see this domain name sold.
The Panel finds that there is no evidence to suggest the Respondent ever registered or used the domain name for purposes of reselling it.
Complainant has failed to establish bad faith under the plain language of Policy
Respondent alleges that Complainant’s claim that Respondent seeks to confuse Internet users in bad faith is without merit.
Respondent notes that Complainant’s business is limited to student housing operations in the vicinity of nine college located in the southern United States.
Respondent claims on the other hand that it is using the domain name to promote a future amusement park that will operate exclusively within the confines of Wheeling, West Virginia.
Respondent argues that there simply cannot be any real confusion amongst Internet users that would be sufficient enough to confuse them.
The Panel again notes that Respondent clearly promotes its future amusement park and resort through this domain name, while Complainant’s business focuses on the provision of housing to college students.
Based on this record, there is not sufficient evidence to suggest that Respondent intended to register or use this domain name in a Policy ¶ 4(b)(iv) scheme to confuse Internet users into believing its amusement park and resort development was affiliated with Complainant.
With regard to Complainant’s assertion that is has established common law rights in the mark, the Panel does not agree. There is no evidence to support such a finding.
Respondent claims that its theme park and resort are intended to appeal to all persons, and cannot be construed—as Complainant attempts to—as being a scheme to get college students from the southern United States to live in a West Virginian resort while they attend college in a different state. T
The Panel agrees and finds that Respondent registered the domain name approximately five years ago in furtherance of its business plan.
Therefore, Complainant has failed to prove bad faith at the point of domain name registration as required under Policy
On the issue of Reverse Domain Name Hijacking “the Panel finds that, based on the age of the content of the disputed domain name and Respondent’s lack of response to e-mails, it was reasonable for Complainant to conclude that the domain name had been abandoned.”
“Even though this Panel has found that Complainant has failed to satisfy its burden under the Policy, this does not necessarily render a finding of reverse domain name hijacking on behalf of Complainant in bringing the instant claim.”
