P. O. Box 50191
Minneapolis, Minnesota 55405 USA
www.arbitration-forum.com
Complainant:
Rosann Liva
Valentine's Dive Center
Respondent:
Valentines Dive Center
File Number: FA0004000094390
Filing Date: 03/07/00
DOMAIN NAME DISPUTE ADMINISTRATIVE PANEL DECISION
Domain Name(s): "VALENTINESDIVE.COM"
Domain Name Registrar: Network Solutions, Inc.
Date of domain name registration: 01/29/97
Date Complaint was sent to Respondent in accordance with
Rule 2(a): 04/06/00
Response Due Date: 04/26/00
Response Date: 04/19/00
PROCEDURAL FINDINGS
On April 6, 2000 the Complainant, Valentine's Dive Center,
filed its complaint with the National Arbitration Forum ("The
Forum")
pursuant to the Uniform Domain Name Dispute Resolution Policy adopted
by the Internet Corporation for
Assigned Names and Numbers ("ICANN").
After reviewing the Complaint for administrative compliance, The Forum
transferred the Complaint to the Respondent, Valentine's Dive Center,
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
Network Solutions, ICANN and the Complainant that
the administrative proceeding had commenced.
The Respondent registered the domain name with Network
Solutions, the entity that is the Registrar of the domain name.
By registering
its domain name with Network Solutions, the Respondent agreed to resolve
any dispute regarding
its domain name through ICANN's Uniform Domain
Name Dispute Resolution Policy.
The Complaint is based on the following trade name: "VALENTINESDIVE."
The Respondent timely filed a response.
The above-captioned matter came on for an administrative
hearing on April 26, 2000 before the Honorable Charles K. McCotter,
Jr. (Ret.), Arbitrator. This matter is submitted for decision in accordance
with ICANN's Uniform Domain Name
Dispute Resolution Policy (the "Policy")
and Rules (the "Rules"). Upon the written submitted record, and the
following findings and conclusions, I find for the Respondent.
FINDINGS OF FACT
- On November 1, 1994, the Complainant, Rosann Liva, purchased from
Ronald M. Lipman and Edward J. Snider, assets of
and the right to
operate Valentine's Dive Center, a water sports concession at Bay
Street, Harbour
Island, Bahamas. The assets were primarily two (2)
dive boats and equipment. The Complainant agreed to abide by the
terms of the agreement between Lipman and Snider and Valentine's
Yacht Club and Inn until the present
agreement expired and a new
agreement was reached between Complainant and Valentine's Yacht
Club and
Inn. Valentine's Dive Center was a resort dive operation
located on the premises of Valentine's Yacht Club and Inn.
The Complainant
also purchased from Lipman and Snider, the right to use the name
"Valentine's Dive
Center. Valentine's Yacht Club and Inn was not
a party to this purchase agreement.
- On August 13, 1998, the Complainant entered a Lease Agreement
with Valentine's Resort and Marina. Complainant operated
Valentine's
Dive Center at Box 1, Harbour Island, Bahamas until October 1, 1999,
when she moved Valentine's
Dive Center to Tallahassee, Florida.
The Complainant renewed her domain name.
- The Respondent had engaged in negotiations with the Complainant
to purchase the assets of Valentine's Dive Center which
included
the name, domain name and web pages of the Complainant. However,
the Respondent did not make
the purchase.
- In February, 2000, the Complainant discovered that her web page
was gone and that Respondent's web page was there instead.
Network
Solutions told the Complainant that the Respondent had sent them
a fax advising them that the
Respondent was now the owner of Valentine's
Dive Center and that Network Solutions should give the Respondent
control of the domain name, VALENTINESDIVE.COM. The Complainant
states that she sent a fax to Network Solutions
and that control
of the domain name was returned to her. However, the Respondent
was able to have Network
Solutions change the control of the domain
name back to the Respondent. When the Complainant moved her Dive
Center from Harbour Island, Bahamas to Florida, the Respondent began
operating at Harbour Island under the
same name as the Complainant,
Valentine's Dive Center.
- The Respondent did not register a new domain name, but was able
to change all contact information and the domain name
server. Therefore,
the Respondent gained access to the Complainant's domain name. The
Complainant contends
that this constitutes registration and use
in bad faith for the purpose of attracting internet users to the
Respondent's web site for commercial gain by creating a likelihood
of confusion with the Complainant's assigned
web site.
- The Respondent contends that the Complainant was never the legal
owner of Valentine's Dive Center because she never
had a Business
License as required by Bahamian law and there has always been a
diving facility at Valentine's
Resort and Marina. The diving facility
is a service provided to guests of Valentine's Resort and Marina
and to other guests. The Complainant never officially owned Valentine's
Dive Center, but operated the dive facility
on a lease basis. The
Respondent contends that the Complainant breached her lease agreement
with Valentine's
Resort and Marina by relinquishing the dive facility
at Harbour Island.
- When the Complainant left Harbour Island, the Respondent was granted
permission from the Bahamian Government to operate
a company known
as Valentine's Dive Center and operate that facility from the grounds
of Valentine's
Resort and Marina. For this reason, the Respondent
claims ownership of the domain name "VALENTINESDIVE.COM."
- As owner of this company and URL, the Respondent took steps to
ensure that the correct information was being posted
on the web
site by transferring IP addresses, administrative, technical and
billing contact information.
URL, "VALENTINESDIVE.COM" had incorrect
information posted on it stating that the dive facility known as
Valentine's Dive Center, Box 1, Harbour Island, Bahamas was closed
and would not be re-opened. This was detrimental
and misleading
to the Respondent's business as the Respondent's business was open
and operating. Therefore,
the Respondent contacted Network Solutions
in order to change this incorrectly posted information which created
confusion and misrepresentation to web site customers. Hence the
correct information was posted that
Valentine's Dive Center, Box
1, Harbour Island, Bahamas was open and operating, and stated therein
the dive programs and prices.
- Network Solutions confirms the following registrant information
for the domain name "VALENTINESDIVE.COM":
Registrant:
Valentine's Dive Center (VALENTINE'SDIVE-DOM)
Box 1
Harbour Island,
BS
- The Complainant does not have a trademark or service mark in "VALENTINESDIVE.COM."
Both the Complainant and the Respondent
have legitimate interests
in respect to the domain name.
CONCLUSIONS
Paragraph 4(a) of the Policy requires that the Complainant
must prove each of the
following:
- the domain name is identical or confusingly similar to a trademark
or service mark in which the Complainant has rights.
- that the Respondent has no rights or legitimate interests in
respect of the domain name; and,
- the domain name has been registered and is being used in bad
faith.
The Complainant has failed to show the first two elements.
As such, it is not necessary to discuss the third element.
DECISION
I certify that I have acted independently and have no
known conflict of interest to serve as the arbitrator in this proceeding.
Having been duly selected and being impartial, I enter the following
decision:
Based upon the above findings and conclusions, I find
in favor of the Respondent. Therefore, the relief requested by
the Complainant pursuant to Paragraph 4.i of the Policy is Denied. The
Respondent
shall not be required to cancel or to transfer to the Complainant
the domain name "VALENTINESDIVE.COM."
This 27th day of April, 2000.
Charles K. McCotter, Jr.
Arbitrator
