In the recent domain dispute of Dollywood Company v. Dewayne Hensley (Nat. Arb. Forum 1256567, May 22, 2009) a single member Panel was faced with a dispute over www.dollywoodresort.com. Dolly Parton is too famous to provide a factual background, but many of you may not know that she also lends her name to a theme park located in Tennessee, aptly named DOLLYWOOD. The Dollywood company owns a trademark registration for DOLLYWOOD with rights dating back to 1986 and they maintain a web site at www.dollywood.com.
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.
The Panel addressed the first prong and recognized Complainant’s registered trademark rights as established under paragraph 4(a)(i) of the UDRP ICANN Policy. The Panel found that the domain name encompassed all of the mark DOLLYWOOD with the addition of a generic term “resort.” In light of this the Panel found Complainant satisfied the first element.
Moving to the second element, whether the Respondent had any rights or legitimate interests in the domain, the Panel found that Complainant made a prima facie case causing the burden of proof to shift to Respondent. Since Respondent failed to respond to the Complaint the Panel assumed no rights or legitimate interests existed, however, still chose to review the record. The Panel noted that the domain did not resolve to an active web site, which was not a bona fide offering of goods or services and was not considered legitimate non-commercial or fair use. Additionally, the Panel found that Respondent was not commonly known by the disputed domain as stated in Policy paragraph 4(c)(ii).
Moving to the final element, bad faith, the Panel explained that “the enumerated Policy ¶ 4(b) factors are not exhaustive, and thus the totality of the circumstances may be considered when analyzing bad faith registration and use under Policy ¶ 4(a)(iii).” Since the web site did not resolve to an active site, the Panel found that it was indicative of bad faith registration and use under the Policy paragraph 4(a)(iii).
Ultimately, the Panel found that Complainant satisfied all of the elements and ruled to TRANSFER the disputed domain.
