COMPLAINANT

Independence Harbor I Condominium Association Inc

361 River Road

Edgewater, NJ 07020

 

RESPONDENT

Noel Turner

504 Smith Court

Independence Harbor

Edgewater NJ 07020

 

Domain Names In Dispute: independenceharbor.com
File No.
FA0603000666077

 

RESPONSE

Respondent received a Notification of Complaint and Commencement of Administrative Proceeding on April 1st 2006.  The Notification stated that Complainant had submitted a Complaint for decision in accordance with the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 and approved by ICANN on October 24, 1999 (ICANN Policy), and the Rules for Uniform Domain Name Dispute Resolution Policy (ICANN Rules), adopted by ICANN on August 26, 1999 and approved by ICANN on October 24, 1999, and the National Arbitration Forum (NAF) Supplemental Rules (Supp. Rules).  ICANN Rule 4. 

 

The respondent elects to have this dispute heard before a single member administrative panel as stated in the complainant’s complaint.

 

RESPONSE TO FACTUAL AND LEGAL ALLEGATIONS MADE IN COMPLAINT

This Response specifically responds to the statements and allegations contained in the Complaint and includes any and all bases for the Respondent to retain registration and use of the disputed domain name. ICANN Rule 5(b)(i)

a.) ____Although the complainant has attached many documents regarding the mark to their complaint, they have failed to demonstrate that they own a federal trademark on the mark “Independence Harbor”

b.)____Respondent, Noel Turner, should be considered as having rights or legitimate interests in respect of the domain name that is the subject of the complaint.] ICANN Rule 3(b)(ix)(2); ICANN Policy  4(a)(ii). Because of the following:

  1. Mr. Turner has been a resident and owner in the condominium development known as “Independence Harbor” since August 2000. Independence Harbor is a condominium community made up of 520 units in 12 buildings located in Edgewater, New Jersey that was built by Hartz Mountain builders.
  2. As a resident and owner, Mr. Turner has a legitimate interest and right in respect of the domain name independenceharbor.com.
  3. On 31st October 2000 Mr. Turner registered the domain name “independenceharbor.com” (Appendix a) He has continuously maintained this public website for the last 6 years to serve as a non-profit, non-commercial information site for residents and non-residents alike. The web site supplies information about the condominium development in which he lives and owns. (Appendix b) The website has received no advertising or any kind of sponsorship during that time. In addition, the website has never been offered for sale or lease in any way.
  4. Mr. Turner has operated the website at his own expense for the good of his fellow residents – the comprehensive site includes a great deal of information including contact numbers, condo rules, correct process and many other useful pages for the community and other owners of Independence Harbor. It serves as an alternative source of information about Independence Harbor for residents and public alike. (Appendix c)
  5. Although the complainants fail to properly identify themselves individually in this complaint, it is important that we clarify who the complainants of record actually are. These are: the current President of the condo board, Steve Brodsky at 301 Thornton Court and the Vice-President, Perry Stein at 309 Williams Court – Both of whom are Mr. Turner’s neighbors in Independence Harbor.
  6. Over the last few years Mr. Stein and Mr. Brodsky have made attempts to garner editorial control of Mr. Turner’s website. These attempts have included threats and innuendo that has given Mr. Turner more resolve in the matter. Posters advertising the availability of Mr. Turner’s website were also removed from the bulletin boards in the hallways of the various buildings in Independence Harbor by the maintenance staff, under the instructions of the condo board.
  7. Mr. Stein’s conduct in this matter has been aggressive and defamatory. In late 2002 Mr. Turner was summoned to a “closed” condo board meeting to discuss the website ownership and editorial control. Those present were the board members (at that time) Perry Stein, Gerry Balbirer, Haig Shirinian and Susan Pfeiffer. Although initially congenial, Mr. Stein became enraged when Mr. Turner refused to hand over the website to him. He continued to press Mr. Turner with questions like “What do you want in return”, which insinuated that Mr. Turner was holding the website hostage, which evidently was not the case.
  8. At an “open” board meeting 2 weeks later, at which Mr. Turner and many other residents were present, Mr. Stein abused his position on the board to characterize Mr. Turner as an “enemy” of Independence Harbor. Residents came to Mr. Turner’s defense, having themselves been fans of his honest and straightforward website and his genuine demeanor. Mr. Stein, however, continued his tirade and went on to accuse Mr. Turner of being an “Idiot and a fool”. Mr. Brodsky recently wrote a response on his website that accused Mr. Turner of being a cyber squatter and attempted to vilify him (Appendix d) In reality, the initial question was from an independent party, a fellow resident, about Mr. Turner’s website and the posting describes Mr. Turners website as “helpful information” (Appendix d) Mr. Turner could have responded publicly on his website to these attacks, but he chose to take the high road on the matter.
  9. Mr. Turner’s mission statement for his community website “independenceharbor.com” has been to achieve fairness, accuracy, objectivity, honesty and integrity. Mr. Turner has corrected any mistakes on the website that have been brought to his attention by other residents. The condo board, however, has never requested any corrections other than repeating their demands to Mr. Turner to shut his site down and give them the domain name.
  10. Due care has been taken by Mr. Turner to ensure that any person coming to the website is made abundantly clear that the website is not endorsed by the condo board, Hartz Mountain or any of their agents and is using the mark “Independence Harbor” in fair use (Appendix b, bottom section)
  11. On 11th May 2004 the condo board registered their own website, independenceharbor.org (Appendix h) they have recently begun promoting their site in the public areas of the complex and at condo meetings. Mr. Turner, therefore, has had significant standing rights in terms of having his website up and running a full four years before the condo board even bothered to create their own website. In creating their website they also copied many of the attributes of Mr. Turners established site, including his bulletin board, condos for sale, condos for rent and management information. (Appendix d  - sidebar)
  12. Although the condo board has chosen to attack Mr. Turner and his website, a local realtor has used the URL independenceharbor.net since November 1999 to sell property. (Appendix e) This registration and website (Appendix i) actually predates Mr. Turner’s registration of independenceharbor.com by nine months. The condo board has chosen to ignore this infraction of the realtor, thus demonstrating that the condo board’s intent is not to actually protect the dilution of the Independence Harbor mark, but in fact to silence alternative sources of information that they do not personally approve of, under the guise of protecting the mark.
  13. The essence of this complaint is that the condo board does not want any of its residents to have the ability to publicly state fact or opinions that may not be in line with their own. Mr. Turner has used the service mark “independence harbor” in fair use for his website (Appendix b, bottom section note on “fair use”) that serves his common residents in Independence Harbor in which he owns and lives.
  14. Mr. Turner has never been contacted by the condo board with a request that any error on the website be corrected. As far as Mr. Turner is concerned, all the information on the site is correct and up-to-date and meets his mission goals of objectivity and full disclosure. The condo board has, however, demanded many times that Mr. Turner pass ownership of the website to them.
  15. Mr. Turner would be happy to consider any factual changes that the condo board deem erroneous on his website, provided that the information is unequivocally correct.
  16. As stated, Mr. Turner’s aim of the website “independenceharbor.com” is to maintain fairness and objectivity. An independent website, such as Mr. Turner’s, now appears more important than ever as allegations have recently been made about members of the condo board making inappropriate decisions with 7 million dollars of condo monies (Appendix f) and irregular activities including contractual nepotism. (Appendix g)

c)    The domain name independenceharbor.com should not be considered as having been registered and being used in bad faith.]  ICANN Rule 3(b)(ix)(3); ICANN Policy  4(a)(iii) because of the following:

  1. On 31st October 2000 Mr. Turner registered the domain name “independenceharbor.com” (Appendix a) He has continuously maintained this public website for the last 6 years to serve as a non-profit, non-commercial information site for residents and non-residents alike. The web site supplies information about the condominium development in which he lives and owns. (Appendix b) The website has received no advertising or any kind of sponsorship during that time. In addition, the website has never been offered for sale or lease in any way.
  2. Mr. Turner has operated the website at his own expense for the good of his fellow residents – the comprehensive site includes a great deal of information including contact numbers, condo rules, correct process and many other useful pages for the community and other owners of Independence Harbor.  (Appendix c)

In bringing this law action the condo board and the condo boards’ attorney have made inappropriate use of condo funds for a lawsuit that is wasteful and obviously a “nuisance” suit that bears no validity in law.
Mr. Turner is equally frustrated that Mr. Brodsky and Mr. Stein have used condo funds for this legal action, to which Mr. Turner, as a resident and owner, contributes every month – effectively making Mr. Turner a contributor to a legal action against himself.
In addition, the condo board did not take this proposal to an open vote by the owners in Independence Harbor, thus subjecting them to inappropriate costs.
Following their failure to win this case, Messrs. Stein and Brodsky should be responsible for all the legal costs personally.

 

RESPONSE TRANSMISSION

The Respondent asserts that a copy of the Response, as prescribed by NAF’s Supplemental Rules, has been sent or transmitted to the Complainant, in accordance with ICANN Rule 2(b).  ICANN Rule 5(b)(vii); NAF Supp. Rule 5.

The Respondent respectfully requests that the Administrative Panel denies the remedy requested by the Complainant.

 

CERTIFICATION

Respondent certifies that the information contained in this Response is to the best of Respondent’s knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.

 

Respectfully Submitted, 

 

Noel Turner

 

Date April 13th 2006

 

 

 

SCHEDULE OF EXHIBITS

 

Appendix a

whois details of independenceharbor.com

Appendix b

Front page of independenceharbor.com website, corporation name used is owned by Mr. Turner

Appendix c

Full copy of all pages of independenceharbor.com website

Appendix d

Question post on independenceharbor.org bulletin board from an Independence Harbor resident, Lina Kim, with a response by Steve Brodsky

Appendix e

whois details of independenceharbor.net, the realtor’s registration

Appendix f

Post on independenceharbor.org bulletin board regarding recent alleged inappropriate condo board decisions

Appendix g

Post on independenceharbor.org bulletin board regarding recent alleged contractual nepotism

Appendix h

whois details of independenceharbor.org, the condo boards recent registration

Appendix i

Front page of realtor website that independenceharbor.net is directed to.

 

 

 

 

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