Decisión del Panel Administrativo nº D2018-1773 of WIPO Arbitration and Mediation Center, October 17, 2018 (case Hound Ears Club, Inc. v. Dean Eisenberg)
| Resolution Date | October 17, 2018 |
| Issuing Organization | WIPO Arbitration and Mediation Center |
| Decision | Transfer |
| Dominio | Generic Domains |
The Complainant is Hound Ears Club, Inc. of Boone, North Carolina, United States of America (“United States”), represented by Bell, Davis & Pitt, P.A., United States.
The Respondent is Dean Eisenberg of Blowing Rock, North Carolina, United States, self-represented.
The disputed domain name [houndearsclub.com] is registered with Network Solutions, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 3, 2018. On August 3, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 3, 2018, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 15, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 4, 2018. The Response was filed with the Center on August 30, 2018.
The Center appointed William R. Towns as the sole panelist in this matter on September 17, 2018. 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.
The Complainant since 1964 has operated the Hound Ears Club in Boone, North Carolina. In addition to offering amenities such as dining, golf, tennis, and swimming at this 750 acre mountain club, the Complainant also provides real estate agency services including management and rental of vacation homes. The Complainant is the owner of a United States trademark registration for the mark HOUND EARS CLUB, U.S. Reg. No. 5170275, applied for on August 5, 2016, and registered on March 28, 2017, for use with such services. The Complainant has disclaimed the exclusive right to use “Club” apart from the mark as shown. The Complainant also asserts unregistered rights in the mark based on continuous use in commerce since December 31, 1964.
The Respondent registered the disputed domain name [houndearsclub.com] on November 19, 2013. The Respondent’s spouse, Shanaaz Eisenberg, is a licensed realtor and owner of Elite Mountain Properties, Ltd. (“Elite Mountain”), located in Blowing Rock, North Carolina. The disputed domain name has been used with the Respondent’s Elite Mountain website (“Respondent’s website”).[1 ]
The Complainant, contending that the Respondent was using the disputed domain name in violation of ethical rules promulgated by the High Country Association of REALTORS®, Inc. (“the Association”),[2 ] sent a demand letter to the Respondent. The Respondent replied, disputing the Complainant’s allegations. Subsequently, the Association issued a warning letter delivered to the Respondent by email on October 25, 2017. The Complainant thereafter commenced this proceeding under the Policy.
The Complainant submits that the dispute domain name is identical to the Complainant’s HOUND EARS CLUB mark, in which the Complainant asserts rights based on the registration and use in commerce since 1964. The Complainant acknowledges that it did not have registration rights in the mark at the time the Respondent registered the disputed domain name, but asserts through long and continuous use, advertising, media attention and public recognition, that the mark has become a distinctive identifier of the Complainant’s goods and services. The Complainant thus submits it had acquired common law rights in the mark long before the Respondent registered the disputed domain name, and the Respondent when registering the disputed domain name would have been aware of the Complainant’s rights in the HOUND EARS CLUB mark.
The Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant avers that the Respondent has not been licensed or otherwise authorized to use the Complainant’s HOUND EARS CLUB mark, and that the Respondent has not been commonly known by the disputed domain name. According to the Complainant, the Respondent’s use of the disputed domain name to divert Internet traffic to the Respondent’s website demonstrates that the Respondent has neither used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services or made a legitimate or noncommercial fair use of the dispute domain name. The Complainant...
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