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									                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.

                                           page 1
     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            1823440           Feb. 22, 1994          Feb. 22, 1993
      (words and design)
      LA QUINTA INN            1841032           June 21, 1994          Feb. 22, 1993
      (words and design)
      LA QUINTA INN            2298693           Dec. 7, 1999           Sep. 8, 1997
      (words and design)
      LA QUINTA INN            2300509           Dec. 14, 1999          Sep. 8, 1997
      (words and design)


     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
                                           page 2
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 Gre ater Omaha Chamber
of Commerce, including criticism in a newspaper and website published by

                                       page 3
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 13th 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 . . . .”



                                        page 4
     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


                                            page 5
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 (4th 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


                                       page 6
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

                                       page 7
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

                                        page 8
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

                                       page 9
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

                                       page 10
     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.




                           _______________________________
                                   W. Scott Blackmer
                                   Presiding Panelist




_________________________                                  _________________________
       Luca Barbero                                             Douglas M. Isenberg
          Panelist                                                   Panelist

                                  Dated: January 17, 2008




                                           page 11

								
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