Generic Top Level Domain Name (gTLD) Decisions

Complainant is Condotels International, Inc., North Myrtle Beach, SC, USA ("Complainant") represented by Mark S. Graham, of Luedeka, Neely & Graham, P.C. Respondent is Surfside Rental Management, Inc. d/b/a Condotels, Garden City, SC, USA ("Respondent") represented by Nate Fata, of Crowell & Moring, LLP.

The domain name at issue is <condotels.com>, registered with Network Solutions, Inc.

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.

Judge Ralph Yachnin as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on May 1, 2001; the Forum received a hard copy of the Complaint on May 3, 2001.

On May 4, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <condotels.com> is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 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 May 7, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 27, 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 postmaster@condotels.com by e-mail.

A timely response was received and determined to be complete on May 29, 2001.

On May 30, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin, as Panelist.

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

B. 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.

The domain name <condotels.com> is identical to Complainant’s mark, and Respondent does not dispute this issue. See Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name TERMQUOTE.COM is identical to Complainant’s TERMQUOTE mark).

Respondent has operated and provided bona fide services on the <condotels.com> domain name well before any notice of this proceeding. See Grobet File Co. Of Am., Inc. v. The Exch. Jewelry Supply, FA 94960 (Nat. Arb. Forum July 14, 2000) (holding that Respondent has rights and legitimate interests in the domain name because "Respondent has successfully shown that it was using the <grobet.com> domain name and website in connection with the bona fide offering of goods and services, before any notice of the dispute").

Given Respondent’s long use of the domain name, and the considerable amount of advertising it has done to promote the CONDOTELS mark, the Panel finds that Respondent is commonly known by the domain name. See Policy 4(c)(iii).

Therefore, the Panel determines that Complainant has failed to prove that Respondent has no rights or legitimate interests in respect of the domain name.

Whether or not Respondent had the right to register the <condotels.com> domain name is subject to the interpretation of the Settlement Agreement. The Panel declines to interpret the language of the Settlement Agreement, because this dispute is beyond the scope of the ICANN Policy. See The Thread.com, LLC v. Poploff, D2000-1470 (WIPO Jan. 5, 2001) (refusing to transfer the domain name and stating that the ICANN Policy does not apply because attempting "to shoehorn what is essentially a business dispute between former partners into a proceeding to adjudicate cybersquatting is, at its core, misguided, if not a misuse of the Policy"). See also Commercial Publishing Co. v. EarthComm, Inc., FA 95013 (Nat. Arb. Forum July 20, 2000) (stating that the Policy is intended to resolve only a narrow class of cases of "abusive registrations" and does not extend to cases where a registered domain name is subject to legitimate disputes, which are relegated to the courts).

Therefore, the Panel determines that Complainant has failed to prove that Respondent has registered and has been using the domain name in bad faith.

The undersigned determines that Complainant has failed to prevail in its claim against the Respondent. Accordingly, the Complainant’s request to transfer the domain name <condotels.com> is Denied.