Commonly Known, Bona Fide Offering and Contractual Dispute
Issues:
The complete defence for a Respondent when he or she is known by a name incorporated into the domain name;
The test of whether a business comes up to scratch as a bona fide operation; and
The rule that a UDRP panel will not arbitrate if the dispute is a contractual dispute outside the scope of the UDRP.
An interesting case as well, for it concerns Harley Davidson motorbikes. The case is H-D Michigan, LLC v. Jim Harley (NAF case no. FA1004001318741), 25 May 2010.
The Respondent, Jim Harley (lucky man) registered the domain names <harleysridertraining.com> and <harleysridertraining.net>. The panel decided that Lucky Jim had a right or legitimate interest in the domain names as Respondent’s name was “James Harley “ and he was therefore commonly known by “Harley” within the meaning of Policy ¶4(c)(ii).
The panel followed in that regard, see G.A. Modefine S.A. v. Mani, (WIPO Case No. D2001-0537) (<armani.com>) , “where the domain name reflects the initials of the respondent’s first and middle name, combined with its entire last name”.
Secondly, the panel found that the Respondent used <harleysridertraining.com> for his motorcycle training and testing, car training and trailer training services business. Thus he was using the domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) as was also the case in Harrods Ltd. v. HDU Inc., (WIPO Case No. D2004-0093) and Am. Online, Inc. v. West, (NAF Case no. FA 638005).
The third issue was that the Complainant tried to save the day by producing an alleged agreement in writing that it claimed showed the Respondent had relinquished his rights.
The Respondent took a good point: the agreement applied only to his company and not to him.
(touché).
The Panel found that this was “a contractual dispute between two parties that falls outside the scope of the UDRP”, citing Love v. Barnett (NAF Case No. FA 944826) and adding that:
“When the parties differ markedly with respect to the basic facts, and there is no clear and conclusive written evidence, it is difficult for a Panel operating under the Rules to determine which presentation of the facts is more credible. National courts are better equipped to take evidence and to evaluate its credibility.”
The Panel also cited Luvilon Industries NV v. Top Serve Tennis Pty Ltd, (WIPO Case No. DAU2005-0004), Everingham Bros. Bait Co. v. Contigo Visual (NAF Case no. FA 440219), Fuze Beverage, LLC v. CGEYE, Inc., (NAF Case no. FA 844252), Frazier Winery LLC v. Hernandez (NAF case no. FA 841081) to the same effect and dismissed the claim.
Yorumlar