WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
National Wind Watch, Inc. v. Jonathan Linowes/Parkerhill Technology Group LLC
Case No. D2008-0245
1. The Parties
Complainant is National Wind Watch, Inc., Massachusetts, United States of America, internally represented.
Respondent is Jonathan Linowes/Parkerhill Technology Group LLC, New Hampshire, United States of America, represented pro se.
2. The Domain Name and Registrar
The disputed domain name <windwatch.org> is registered with Melbourne IT trading as Internet Names Worldwide.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 15, 2008. On February 18, 2008, the Center transmitted by email to Melbourne IT trading as Internet Names Worldwide a request for registrar verification in connection with the domain name at issue. On February 19, 2008, Melbourne IT trading as Internet Names Worldwide transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient in several respects, the Complainant filed amendments to the Complaint on February 29, March 6, and March 12, 2008. The Center verified that the Complaint, together with the amendments to Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 13, 2008. In accordance with the Rules, paragraph 5(a), the due date for the Response was April 2, 2008. The Response was filed with the Center on April 2, 2008.
The Center appointed Jeffrey M. Samuels as the sole panelist in this matter on April 14, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant owns a United States trademark registration for the mark WIND WATCH, as used in connection with the “development and dissemination of original educational materials and those of others in the field of environmental impacts of industrial wind energy facilities”. Complaint, Annex 3.
The disputed domain name, <windwatch.org>, was registered by Respondent in May 2005.
5. Parties’ Contentions
Complainant contends that the domain name is identical to its registered trademark.
Complainant maintains that the domain name in issue was registered by Respondent on behalf of Complainant and that the domain name was used by Complainant from May 2005 to May 2006. According to Complainant, Respondent, Jonathan Linowes, served as Complainant’s webmaster until May 2006.
In May 2006, Complainant asserts, Respondent, no longer acting on behalf of the Complainant, redirected traffic for the domain name to a new site, titled “Industrial Wind Action Group”, at <windaction.org>. According to Complainant, in September 2006, under threat of legal action, Respondent ended the redirection of the domain name to another site, made the <windwatch.org> site inactive, and was requested to redirect its traffic to Complainant’s new site at <wind-watch.org>.
Complainant alleges that Respondent used Complainant’s established domain name to establish his own paragraphs and to mislead people seeking information from Complainant into believing that Complainant’s website had been replaced by Respondent’s new site at “www.windaction.org”. Complainant maintains that it was “drastically harmed” by Respondent’s action. It contends, for example, that the September 2006 deactivation of the <windwatch.org> site caused many links to such site to become “dead”. Complainant asserts that it was required to spend time and money to create a new site at a new domain name and to re-establish itself as a reliable source of timely information and resources.
Complainant further declares that, as a result of Respondent’s actions, the Google search engine index incorrectly considers Respondent’s new site to be the continuation of Complainant’s site. When Complainant returned to the internet under a new name, the Google index, considering Complainant’s new site to be junior to Respondent’s site and endeavoring to remove duplicate pages from its search results, did not list Complainant’s new site in its search results.
Respondent Linowes contends that he registered the domain name before Complainant’s organization existed and that he is under no legal obligation to transfer the domain name to Complainant. He refers to a May 30, 2006 Letter of Understanding between Complainant and a second organization, Industrial Wind Action Group (IWA), which was reiterated on June 16, 2006, under which neither Respondent nor IWA is using the <windwatch.org> domain name and the name remains dormant.
Respondent provides the following detailed chronology of relevant events:
July 2004 – Respondent launches <gardnermountain.org>, which includes a document repository for wind energy related materials.
January 2005 – The <gardnermountain.org> site is expanded to a general online resource for people watching the wind power industry.
May 9, 2005 – Respondent registers the disputed domain name, <windwatch.org>, with plans to transfer content from his <gardnermountain.org> site and host a site that services people watching the wind power industry.
August 22, 2005 – Complainant National Wind Watch, Inc. is formed and Respondent collaborates with Complainant regarding the <windwatch.org> site.
November 28, 2005 – Respondent offers Complainant a Hosting Agreement for the <windwatch.org> site and an Offer to Donate the domain name, website and technical services to Complainant. Response, Annex A.2.
December 14, 2005 – The <windwatch.org> site goes live. In anticipation of the above agreements being executed, the site includes a copyright notice citing Complainant as copyright owner.
January 2006 – Complainant fails to respond to the Hosting and Donation Agreements and Linowes updates the site to clarify copyright ownership in Respondent Parkerhill Technology Group.
March 21, 2006 – Per advice from counsel, Linowes withdraws in writing the Hosting Agreement offer. Response, Annex 3.
April 2006 – Two of Complainant’s board members announce they will resign to form a new organization, Industrial Wind Action Group (IWA). Respondent reaches agreement with IWA to donate the <windwatch.org> website to it.
April 2006 – Complainant and Respondent discuss ways to transition the <windwatch.org> site and strategies to ensure that Complainant retains a web presence.
May 30, 2006 – A Letter of Understanding is exchanged between Complainant and IWA under which: (1) Respondent assumes responsibility for maintaining the document database at <windaction.org>; (2) <windwatch.org> “will be phased out” over time; and (3) “www.windwatch.org/index” will be a temporary “landing page” containing links to Complainant’s new site at <nationalwindwatch.org>. Complaint, Annex 5. Respondent offers to build a new site at <nationalwindwatch.org> for Complainant to ensure that Complainant does not lose web presence following launch of <windaction.org>.
May 31, 2006 – Respondent registers <windaction.org> for IWA.
June 6, 2006 – Respondent issues a public statement regarding separation between Complainant and IWA and their websites. Response, Annex A.6.
June 16, 2006 – <windaction.org> goes live, including a landing page at <windwatch.org> to <windaction.org> and <nationalwindwatch.org>.
Respondent delivers a full copy of the existing database to Complainant. Response, Annex A.8
August 2, 2006 – Complainant requests Respondent to update the banner image for Complainant as it appears on the landing page and to link to <wind-watch.org> and Respondent complies.
August 5, 2006 – Complainant launches <wind-watch.org>.
Respondent argues that it is not violating a trademark of the Complainant. Respondent notes that there are other “wind watch” organizations and websites in the wind power industry and that the term is used elsewhere, for example, in connection with a golf and country club.
Respondent further contends that it has rights and legitimate interests in the <windwatch.org> domain name. It notes that it paid to register the disputed domain name and was never reimbursed by anyone, including Complainant. It is Respondent’s policy to retain the rights to any domains it registers, unless reimbursed and/or agreed otherwise. Response, Annex A.5 and A.7.
With respect to “bad faith” registration and use, Respondent maintains that at no time did it intentionally harm Complainant or use <windwatch.org> in bad faith. Rather, it simply abided by the relevant agreement. Respondent also reiterates that it registered the domain name before Complainant’s organization existed.
Respondent also asserts that there is no confusion since it does not use the <windwatch.org> domain name nor reference the words “wind watch” in any public documents; that Complainant’s allegations of harm are unsubstantiated; that Respondent warned Complainant in numerous emails that the Complainant’s presence on the internet was in jeopardy and offered more than once to develop a new website for Complainant, but that such offers were refused; and that the <windwatch.org> domain name was retired per agreement.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the mark WIND WATCH in view of the fact that it is registered with the United States Patent and Trademark Office.
The Panel further rules that the disputed domain name, <windwatch.org>, is, for all intents and purposes, identical to the WIND WATCH mark.
B. Rights or Legitimate Interests
The Panel concludes that Respondent has rights or legitimate interests in the domain name. The evidence indicates that the domain name <windwatch.org> was registered by Respondent before Complainant was formed and, while the domain name and site were offered to Complainant, Complainant never accepted such offer. Thus, Respondent is the rightful owner of the domain name.
C. Registered and Used in Bad Faith
In view of the fact that the domain name was registered by Respondent before Complainant was formed and evidence indicating that Respondent has operated in good faith in its dealings with Complainant, the Panel determines that the evidence does not support a determination that the domain name was registered and is being in bad faith.
For all the foregoing reasons, the Complaint is denied.
Jeffrey M. Samuels
Dated: April 28, 2008