WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

La Quinta Worldwide L.L.C. v. Heartland Times LLC, MD Sullivan

Case No. D2007-1660

1. The Parties

The Complainant is La Quinta Worldwide L.L.C. of Las Vegas, Nevada, United States of America, represented by Lydecker, Lee, Behar, Berga & de Zayas, L.L.C., United States of America.

The Respondent is Heartland Times LLC, MD Sullivan, of Omaha, Nebraska, United States of America.

2. The Domain Name and Registrar

The disputed Domain Name <laquintainnsucks.com> is registered with Register.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on November 10, 2007. On November 12, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 12, 2007, 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”), 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 November 19, 2007. In accordance with the Rules, paragraph 5(a), the due date for the Response was December 9, 2007. The Response was filed with the Center on December 12, 2007. The Complainant submitted a supplemental filing on December 17, 2007, and the Respondent submitted supplemental filings on December 27 and 28, 2007.

The Center appointed W. Scott Blackmer, Luca Barbero, and Douglas M. Isenberg as panelists in this matter on December 27, 2007. The Panel finds that it was properly constituted. Each member of 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

The Complainant is a Nevada limited liability company that is evidently part of a group of related companies that has operated and franchised hotels under the LA QUINTA mark since 1968. The Complainant reports that the group currently owns some 65,000 hotel rooms and employs approximately 9000 persons. The group also provides franchise services for more than 500 hotels owned by franchisees. La Quinta hotels are found in 40 states in the United States of America, as well as in Canada and Mexico. The Complainant states that it expends roughly USD $30 million annually advertising and promoting the LA QUINTA brand.

“La quinta” is a Spanish term for a country house. The Complainant cites numerous trademarks comprised of, or incorporating, the terms “LA QUINTA”, in more than 50 countries. However, some of the marks are listed in registration documents furnished by the Complainant as belonging to a Delaware corporation named La Quinta Motor Inns, Inc. The Complaint does not explain the Complainant’s relationship with that corporation.

For purposes of this proceeding, the Panel finds it sufficient to refer to the following registered United States trademarks for which the Complainant is currently listed as the owner:

Trademark	U.S. Reg. No.	Reg. Date	First Use in Commerce
LA QUINTA	1080641	Dec. 27, 1977	Apr. 5, 1968
LA QUINTA INN (words and design)	1823440	Feb. 22, 1994	Feb. 22, 1993
LA QUINTA INN (words and design)	1841032	June 21, 1994	Feb. 22, 1993
LA QUINTA INN (words and design)	2298693	Dec. 7, 1999	Sep. 8, 1997
LA QUINTA INN (words and design)	2300509	Dec. 14, 1999	Sep. 8, 1997

The Complainant presumably licenses the use of these marks to the operating companies and franchisees that operate and market hotels labeled with the LA QUINTA or LA QUINTA INN brands.

The Complainant’s group of companies operates websites at “www.laquinta.com” (since 1995) and “www.laquintainn.com” (since 2005), as well as others.

According to the Registrar, the Domain Name was registered on October 12, 2007. The registrant is shown in the Registrar’s WHOIS database as “HEARTLAND TIMES LLC”, with “MD Sullivan” on the second line. “MD Sullivan” is also named as the registrant contact, administrative contact, and technical contact for the Domain Name. An individual named Mort Sullivan of Omaha, Nebraska, United States of America submitted the Response in this proceeding, as well as three supplemental communications. He uses both “I” and “we” in referring to ownership of the Domain Name and the website to which it resolves. Heartland Times, LLC is a Nebraska limited liability company, as shown on the business entities database operated by the Nebraska Secretary of State. Mr. Sullivan is listed as the registered agent for the company. An email from Mr. Sullivan to the publishers of Hotel Business, discussed below, suggests that Mr. Sullivan is a “partner” and “general manager” of Heartland Times, LLC.

From a perusal of the Response and the Respondent’s various websites, it appears that Heartland Times, LLC publishes newsletters, flyers, and websites. The latter feature both text and audio recordings in the form of Internet “radio stations” with both music and “talk show” formats. In addition to the website associated with the Domain Name, Heartland Times, LLC operates a number of websites, many of which are linked to one another, focused on particular issues. These include “www.chambersucks.com”, which criticizes the Omaha Chamber of Commerce; “www.drunkaholic.com”, which publishes information about local drivers who have been arrested for drunk driving; “www.peerslist.com”, which posts information and derogatory comments about members of the board of directors of the Omaha Public Power District and other persons of whom Mr. Sullivan is critical; “www.powerloss.com”, which complains about the impact of the Omaha Public Power District constructing utility poles on the property of Mr. Sullivan’s mother; “www.electmortsullivantooppdboard.com”, which discusses Mr. Sullivan’s 2008 candidacy for the board of directors of the Omaha Public Power District (it appears from material on some of the Respondent’s websites that Mr. Sullivan, “the true Irish candidate”, also campaigned in 2006 for the offices of governor and lieutenant governor of the State of Nebraska and earlier sought election as mayor of Omaha); “www.screwthezoo.com”, which advocates a public investigation of the Omaha Zoo Foundation; and “www.cleanwateractlawsuit.com”, which discusses the possibility of bringing an environmental lawsuit against owners of land on the site of a former landfill in Omaha.

The website to which the Domain Name resolves consists of a single, rather lengthy page of information and opinion headed, “Heartland Times, LLC (Heartland’s Common Sense Newspaper) (Internet Cyber-Gripe Web Site)”, followed by a paragraph with citations and commentary concerning the constitutional right of citizens to exercise free speech on the Internet and in other media. The website goes on to state, “It is our personal opinion that LaQuinta Inn SUCKS”.

Specifically, the website criticizes the franchisees, apparently of Indian derivation, of a La Quinta Inn in Lincoln Nebraska and another in Omaha, claiming that there are construction liens filed against them and that they have made “dishonest financial statements”, and implying that the Lincoln property is in a crime-ridden neighborhood, asking, “Would anyone really want to stay here?”. The website suggests that some of the same “India people” are seeking to develop part of a former landfill in Omaha as the site of another La Quinta Inn. This property is the subject of the proposed environmental lawsuit discussed on another of the Respondent’s websites, “www.cleanwateractlawsuit.com”, which is linked from the website associated with the Domain Name.

The website to which the Domain Name resolves also reproduces the text of a March 3, 2000 article published in the Omaha World-Herald, “Fax Attacks; Chamber Members Unhappily Drawn into Man’s Vendetta”. The article recounts Mr. Sullivan’s efforts to discredit a member of the board of directors of the Greater Omaha Chamber of Commerce, including criticism in a newspaper and website published by Mr. Sullivan and a campaign of automated telephone calls and faxes directed to Nebraska residents and businesses. Mr. Sullivan is characterized in the article as an “entrepreneur” who has tried to block development on the Omaha property discussed on the website. According to the article, Mr. Sullivan himself owns part of the property and some years earlier tried to develop it as a “tourist-oriented project”.

The website associated with the Domain Name includes a copy of a property deed showing that “the India people” acquired part of the land on the former landfill and alleges that they did so “to hurt my property”. The website also suggests that Mr. Sullivan plans to use his automated fax system to send faxes about the alleged problems with the proposed development to “6000 homes a day in your area to tell everyone about this motel fight” and to the Indian franchisees themselves, who had “better have a lot of money to pay for all the toner and paper” that would be consumed in receiving repeated faxes to their own motel fax numbers. (The website includes a sample of such a fax with white text on a black background, expressly designed to consume more of the recipient’s fax machine toner). Since the website also includes the Omaha World-Herald article cited above concerning Mr. Sullivan’s earlier “fax attacks”, the implication is that Mr. Sullivan will orchestrate such a nuisance campaign against the Complainant’s franchisees involved in the Omaha property.

The Respondent’s website at “www.screwthezoo.com”, also linked from the website associated with the Domain Name, includes a more detailed attack on members of three families with Indian surnames that own several motel franchises in Nebraska, including the persons allegedly interested in building a La Quinta Inn on the former landfill site in Omaha. Referring to these individuals as “India people” and “scum”, the website at “www.screwthezoo.com” announces that “we” will file a “Federal Clean Water Act Citizens Lawsuit” against the persons seeking to develop the site, to compel them to remove asbestos and other materials allegedly contaminating the site. “We are going to put these India people out-of-business”, the website proclaims. The website includes links to the website associated with the Domain Name and similar websites relating to other motels owned by the same persons, all using domain names similarly comprising the name of the motel chain and the derogatory word “sucks”: <microtelinnsucks.com>, <super8motelsucks.net>, <satellitemotelsucks.net>, and <relaxinnsucks.net>. A link is also provided for the Respondent’s website concerning the proposed environmental lawsuit at “www.cleanwateractlawsuit.com”.

The Respondent’s campaign concerning the Omaha property is further detailed in an email, furnished by the Complainant, that Mr. Sullivan sent to the publishers of Hotel Business magazine and the website at “www.hotelbusiness.com”. This email message reads, in relevant part, as follows:

“I am in the process of putting 3 motels out of business in the Lincoln Nebraska and Bellevue Nebraska area. These people are from India and have purchased a piece of land in the Northwest corner of I-80 and 13^th Street in Omaha Nebraska. This land is a landfill that contains hazardous materials and a natural stream runs underneath the landfill and then into the Federal Missouri River and that is a violation of the ‘Clean Water Act’. I am the adjoining property owner and I am a fighter . . . . Last time they graded this land since it is full of lead, asbestos, transite and other hazardous materials the families directly across the street got lead poisoning. I am going to stop these people from coming into our city . . . .”

The email then mentions the website associated with the Domain Name, as well as the Respondent’s other “sucks” websites and the Respondent’s websites at “www.screwthezoo.com” and “www.cleanwateractlawsuit.com”. A postscript informs the publishers that they will be the subject of a new website, “www.hotelbusinesssucks.com”.

Counsel for the Complainant contacted Mr. Sullivan by telephone on October 24, 2007, as reflected in a letter that counsel sent to Mr. Sullivan and Heartland Times, LLC on October 31, 2007. The letter asserted that statements on the website associated with the Domain Name are defamatory and stated that the Complainant requires its franchisees to comply with any applicable environmental regulations and other laws. The letter, which did not mention trademark law or the Policy, was returned as undeliverable.

Complainant’s counsel sent another letter dated November 2, 2007, requesting the retraction of statements concerning the proposed hotel development on the website associated with the Domain Name and on other websites and Internet radio broadcasts. Again, there was no mention of trademark or Policy issues and, again, the letter could not be delivered.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that the Domain Name is confusingly similar to its registered LA QUINTA and LA QUINTA INN marks, which the Respondent is using without permission. According to the Complainant, the Respondent chose the Domain Name to create a likelihood of confusion with the mark and attract Internet visitors to his website for commercial gain, and also to tarnish the Complainant’s marks. Specifically, the Complainant argues that the Respondent sought to (a) prevent a devaluation of his own property adjacent to the Omaha property at issue, or give him an advantage in his own attempts to develop and expand his property, (b) attract visitors to his other newsletters, websites, and Internet radio broadcasts, and (c) ultimately resell the Domain Name at a profit. These motivations, the Complainant concludes, do not represent a legitimate interest in the Domain Name and reflect bad faith in the registration and use of the Domain Name.

The Complainant requests that the Panel strike the late-filed Response.

B. Respondent

The Respondent, who is not represented by counsel, replies to several items on the Center’s model Response form with the phrase “Don’t understand”. He does, however, provide a lengthy statement of his “free speech” rights and characterizes the website associated with the Domain Name as a criticism or “cyber-gripe” website legitimately expressing his opinions about developing a La Quinta Inn on the Omaha property without a full environmental cleanup. He expresses concern about protecting neighboring landowners and users, including children at a nearby school. He asks that the Complaint be dismissed as an attempt to “chill” the exercise of constitutional rights of expression.

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to divest a respondent of a disputed domain name, a complainant must demonstrate each of the following:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

Under paragraph 15(a) of the Rules,

“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

A. Delayed Response and Supplemental Filings

The Response was three days late, and the Complainant’s supplemental filing is a request to strike the Response for that reason. The Respondent said he had been ill, and in a supplemental email to the Center dated December 27, 2007, he stated that he was “still sick and not ready to fight YET!” He also asked in a supplemental email to the Center that the Complaint be “dropped” because “we operate in the United States under Freedom of Speech and Press”.

The Policy, Rules, and Supplemental Rules are designed to facilitate a speedy resolution of domain name disputes, and delays are not lightly tolerated. It is the Panel’s view, however, that a three-day delay in submitting a Response to a Complaint with voluminous attachments, without assistance of counsel, is not inconsistent with the Policy. However, there is no need or excuse for additional communications submitted weeks after the deadline, and in this case they do not contribute new material evidence or arguments.

Accordingly, the Panel accepts the Response as filed, denies the Complainant’s request to strike, and declines to consider the Respondent’s supplemental filings.

B. Identical or Confusingly Similar

The Complainant unquestionably holds rights in the registered LA QUINTA mark, as well as in registered design marks prominently featuring the words LA QUINTA INN. The Domain Name incorporates those marks in their entirety.

Numerous Policy decisions (and several judicial precedents in the United States of America, where both parties are located) have addressed the question of whether adding a derogatory word such as “sucks” to a domain name makes it unlikely that Internet users would be confused as to source or affiliation. The American Heritage Dictionary of the English Language (4^th ed. 2000) defines “sucks” as a “vulgar slang” term meaning, “to be disgustingly disagreeable or offensive.” Merriam-Webster’s Online Dictionary (“www.m-w.com”) similarly includes the “slang” definition of “sucks” as “to be objectionable or inadequate”. Presumably, most companies would not publish a website with such a self-denigrating domain name, and some UDRP panels have concluded that such a domain name is not, therefore, “confusingly similar” to a mark included in the domain name. See, e.g., Lockheed Martin Corporation v. Dan Parisi, WIPO Case No. D2000-1015.

However, it is not self-evident that Internet users would always take notice of the slang word following the trademark in the Domain Name and recognize its negative import. Moreover, as in a number of other Policy proceedings, many Internet users potentially interested in the Complainant’s services are not fluent English-speakers; the Complainant attracts persons planning travel in the United States of America, operates internationally, and has registered its mark in more than 50 countries. See, e.g., Wachovia Corporation v. Alton Flanders, WIPO Case No. D2003-0596; Koninklijke Philips Electronics N.V. v. In Seo Kim, WIPO Case No. D2001-1195 (non-native English speakers may not recognize the negative connotations of a pejorative slang term included in a domain name). It is also by no means improbable that a trademark holder would use such a domain name wryly, perhaps seeking an opportunity to communicate with younger or disaffected consumers.

It is for such reasons that most panels have tended to find that a domain name consisting of a trademark and a negative term will be confusingly similar to the complainant’s mark. See, e.g. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 1.3, and cases cited therein. As the Wachovia and Philips panels observed, a finding of confusing similarity does not deprive a legitimate protest website from protection under the second and third elements of a Policy complaint.

The Panel concludes that the Domain Name is confusingly similar to the Complainant’s marks for purposes of the first element of the UDRP.

C. Rights or Legitimate Interests

The Policy, paragraph 4(c), provides a non-exhaustive list of circumstances in which a respondent could demonstrate rights or legitimate interests in a contested domain name:

“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”

The Complainant asserts, without contradiction, that it has not authorized the Respondent to use its marks in the Domain Name. There is no evidence that the Respondent is known by a name corresponding to the Domain Name.

The website to which the Domain Name resolves does not expressly offer or advertise any goods or services, and the Respondent does not assert a bona fide commercial purpose for the Domain Name. The website does refer to some of the Respondent’s other websites and Internet “radio shows”, but there is no evidence in the record that the Respondent seeks paid subscribers or advertisers on these websites or “radio shows”. The Panel notes that the audio recording on the Respondent’s website at “www.electmortsullivantooppdboard.com” encourages listeners to visit an online advertising directory at “www.shoppingthemall.com”. However, this is not one of the websites linked from the website associated with the Domain Name, and the audio recording on the website associated with the Domain Name does not refer to this online “shopping mall.”

The Respondent claims to be making legitimate noncommercial or fair use of the Domain Name for a “cyber-gripe” opinion website critical of the Complainant and its franchisees for allegedly planning to build and operate a La Quinta Inn on the Omaha property at issue without appropriately addressing environmental hazards. On the face of it, the website associated with the Domain Name is clearly a “protest” or “criticism” website concerning the Complainant’s actions and the character and conduct of certain of its Nebraska franchisees.

The Complainant argues, however, that the Respondent’s statements are factually false and that the Respondent’s real motives are pecuniary gain and a desire to tarnish the Complainant’s marks.

The Complainant contends that the Respondent’s interests in the Domain Name are commercial because it registered the Domain Name through “Rconnection”, a domain name reseller program. The Respondent denies registering the Domain Name for resale purposes, and there is no evidence that the Respondent has attempted to resell the Domain Name.

The Complainant also alleges that the Respondent uses the Domain Name commercially because the associated website links to other websites and Internet radio broadcasts provided by the Respondent. Heartland Times LLC may use the website associated with the Domain Name to increase the number of visitors to its linked websites and Internet radio broadcasts, but it is not at all clear that it has a commercial interest in doing so, as there is no evidence that it takes either paid subscriptions or advertising on those websites and Internet radio broadcasts.

Similarly, Mr. Sullivan may stand to gain in some pecuniary fashion from blocking development of the Omaha property in question, but the evidence of that is inconclusive. It appears from the newspaper article quoted on the Respondent’s website associated with the Domain Name that Mr. Sullivan contemplated a development project some years ago, but there is no evidence of his current use or intentions for the property that he owns. Mr. Sullivan also referred online and in communications to the possibility that a proposed development project on the adjacent property, without satisfactory environmental measures, could adversely affect the value of his property. The Panel is reluctant to find that public criticism of a proposed development is not a legitimate “noncommercial” use of the Domain Name unless the Respondent is entirely disinterested in the financial impact of the project. Many individuals protesting development projects on environmental grounds stand to benefit indirectly in economic as well as other respects, but this does not necessarily deprive them of the right of expression, including fair-use references to the name of the developer or another interested party.

The Complainant concludes that “Respondent has clearly established the disputed domain name for the mere purpose of disparaging Complainant’s business and in furtherance of his cause.” The Panel does not doubt that the website associated with the Domain Name reflects the Respondent’s (or Mr. Sullivan’s) “cause”, but this hardly disqualifies the website from representing a protected expression of opinion. Whether the Domain Name was selected and used fundamentally to tarnish the Complainant’s marks and disparage its business is an issue that is intertwined with the “bad-faith” claims discussed below and can be addressed more fully in that context.

D. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that indicate bad faith, including the following:

“(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”

The Complainant cites Kendall/Hunt Publishing Company v. headhunterbob, NAF Claim No. FA102247, where a UDRP panel ordered transfer of the domain name <kendallhuntsucks.com>. No response was filed in that proceeding, and the majority of the panel concluded as follows:

“Since Respondent did not favour the Panel with any reason for registration of the name, and in view of Respondent’s failure to reply, the Panel accepts Complainant’s allegations that Respondent acted to disparage Complainant’s goodwill for reasons that are not bona fide non-commercial and fair use of the domain name. The evidence establishes an intent to tarnish Kendall/Hunt in some fashion and to disrupt its business. . . . The Complainant’s evidence establishes a prima facie case that Respondent is using the domain name for a personal vendetta against the Complainant for the purpose of disparaging Complainant’s name and mark. Without any explanation from the Respondent otherwise, the Panel finds that use of the domain name in this fashion amounts to bad faith within the meaning of the Policy.”

The third panelist wrote a dissenting opinion arguing that the use of the domain name was a legitimate exercise of criticism:

“This is the classic parody site set up to criticize the business activities of a trademark owner. Even though the practice of putting ‘sucks’ on the back of a trademark is widely believed to be childish, at best, it is a protected form of critical speech, absent bad faith attempts to divert customers for commercial gain, extortion attempts to sell the site to the trademark owner or its competitor or other manifestations of bad faith. Mere criticism of the trademark owner on the parody site does not constitute bad faith or disparagement of the trademark.”

The Panel is inclined to agree with the dissenting opinion in Kendall/Hunt Publishing that something more than criticism is required to establish illegitimacy and bad faith within the meaning of the Policy. The lack of a response in that proceeding was also plainly a factor in the majority’s decision, as the majority drew factual inferences against the respondent. In the current proceeding, the Panel has the benefit of the Respondent’s stated rationale, as well as the content of several websites and Internet radio broadcasts, to aid in establishing the Respondent’s intentions.

First, it must be noted that there is no evidence before the Panel establishing that the Respondent is a “competitor” of the Complainant, which makes the reference to paragraph 4(b)(iii) of the Policy inapposite. And as discussed above in connection with the second element of the Complaint, there is no persuasive evidence that the Domain Name was used in an effort to mislead Internet users and attract them to the Respondent’s website for commercial gain as described in paragraph 4(b)(iv) of the Policy.

However, the list of instances of bad faith in paragraph 4(b) is not exclusive, and the Panel reads the Complaint as urging that even a non-competitor may show bad faith in deliberately seeking to tarnish a complainant’s mark and disrupt its business. The Complainant cites Royal Bank of Scotland Group and National Westminster Bank v. Pedro Lopez and A&A System Solutions and Alberto Rodriguez, WIPO Case No. D2002-0823, where a panel found that the protest websites in question were not operated in good faith:

“Respondents’ website to which the Domain Names resolve accuse Complainants of ‘reprehensible behavior’ which resulted in ‘victims who have suffered and had their lives destroyed’ and who ‘took their lives as a result…’. Respondents neither specify nor explain this ‘reprehensible behavior’ on their website. Without support, this innuendo serves no purpose other than to tarnish the reputations of Complainants and their trademarks. While Complainants need not know the identity of their accusers to respond to the accusations, Complainants cannot defend themselves against Respondents’ slurs without knowing the facts on which they are based.”

It may be doubted whether precisely the same free-speech analysis would apply in a case decided with reference to the First Amendment of the Constitution of the United States of America. The parties in Royal Bank of Scotland were located in Venezuela and the United Kingdom of Great Britain and Northern Ireland, respectively.

In any event, in the current proceeding Mr. Sullivan has explained his specific reasons for criticizing plans to build a La Quinta Inn on the Omaha property in question, both in the Response and on the Respondent’s websites and Internet radio broadcasts. He states his intent to try to put particular franchisees – not the Complainant itself – “out of business” for alleged misconduct. He labels his remarks “my opinion”. Mr. Sullivan has used the Domain Name for rather tendentious editorializing about particular corporate plans and franchisees, but this fits the paradigm of social criticism more than commercial disparagement. The Panel does not find on the current record that the Respondent’s primary intent was to tarnish the Complainant’s marks or disrupt its business, but rather to prevent a particular development in a manner that the Respondent considered to be environmentally unsound.

The Complainant repeatedly complains that the website associated with the Domain Name, and other websites and Internet radio broadcasts linked to it, are replete with false and defamatory statements. The Panel is not in a position, however, to judge whether the criticism found on the Respondent’s websites is valid or libelous. The Panel can only determine whether the use of the Domain Name appears to reflect a sincere effort to protest perceived ills, as opposed to a malicious effort to damage the Complainant’s reputation for some less creditable reason. On the current record, the Panel does not find that the Complainant has met its burden of persuasion on this point. The Complainant’s concerns about allegedly defamatory statements are better addressed in a judicial forum than in a Policy proceeding.

The Complainant points as well to its difficulties in contacting the Respondent as indicative of bad faith. Letters sent to the postal address given in the WHOIS database were returned as undeliverable, and the telephone number listed in that database was invalid. Emails were also returned as undeliverable. However, the Panel notes that the Complainant’s counsel did have at least one telephone conversation with Mr. Sullivan, and that Mr. Sullivan ultimately filed a Response in this proceeding. This does not appear to be a case in which the Respondent suspiciously attempted to hide his identity and entirely avoid contact concerning alleged violations of intellectual property rights.

The Panel concludes that the evidence does not establish that the Respondent, more probably than not, registered and used the Domain Name in bad faith.

7. Decision

For all the foregoing reasons, the Complaint is denied.

Dated: January 17, 2008