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Garry A. Berger+
Tracey E. Diamond+++
Jennifer G. Rose+
+Admitted in CT and NY only
++ Admitted in NY only
+++Admitted in NY, NJ and PA only
April 18, 2006
National Arbitration Forum
P.O. Box 50191
Minneapolis, Minnesota USA 55405-0191
Re: Independence Harbor I Condominium
Association Inc. v. Noel Turner
File No. FA0603000666077
We represent Complainant Independence Harbor I Condominium Association Inc. (“Independence Harbor” or the “condo”) in the above-referenced complaint. Please accept this letter in reply to the Response submitted by Respondent Noel Turner on April 13, 2006.
Mr. Turner is clearly an angry condo owner who is frustrated with the leadership of the condo board. However, such anger does not give him the right to violate the condo’s rights in the INDEPENDENCE HARBOR trademark. Mr. Turner’s use of his domain name simply does not constitute fair use of the domain name “independenceharbor.com.”
Mr. Turner’s Response is striking in its admissions. He admits that he has registered the domain name “independence harbor.com” and that he maintains a public website under this domain name. (Response, ¶ 3) He admits that he publishes information about the condo on that website, including “contact numbers, condo rules, correct process and many other useful pages for the community and other owners of Independence Harbor” and that the website serves as a source of information about Independence Harbor “for residents and public alike” (emphasis added). (Response ¶ 4) Finally, he admits that he has made mistakes about Independence Harbor on the website. (Response ¶ 9)
It is abundantly clear from these admissions that Respondent has no legitimate interest in the domain name, and that the only use for the domain name is to maintain an unauthorized and inaccurate website describing Independence Harbor and its activities. Respondent himself basically admits that he has registered the domain name solely for the purpose of disrupting the business of Independence Harbor.
It is also clear from Respondent’s description of his website that he has intentionally attempted to attract members of the community by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation and endorsement of its website. Despite Respondent’s bald assertion that “due care” has been taken to ensure that visitors understand that the website is not endorsed by the condo board, it is clear from the information posted on the website that users could easily mistaken the website as being sponsored, affiliated with and endorsed by the condo.
In addition to its damaging admissions, Mr. Turner relies on factual inaccuracies in response to the complaint. First, contrary to his assertion that Complainant has failed to demonstrate that they own a federal trademark on the mark INDEPENDENCE HARBOR, the Amended Complaint sets forth in great detail Independence Harbor’s exclusive license in the INDEPENDENCE HARBOR mark.
Second, Mr. Turner asserts that the complainants of record “actually” are Steve Brodsky and Perry Stein, individuals against whom Mr. Turner obviously has a personal vendetta. Nonetheless, the Amended Complaint names Independence Harbor as the Complainant, not any one individual. Indeed, it is the entire condo that has been damaged by Mr. Turner’s unfair use of the domain name.
Third, Mr. Turner complains 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. This is absolutely untrue. Mr. Turner’s argument is akin to a one percent shareholder of Coca Cola claiming that he has the right to use the Coca Cola trademark to disparage the company. Mr. Turner does not have the right to use the mark that Independence Harbor owns and has spent time and money in promoting just because he claims that it is in the name of “free speech.”
Finally, Mr. Turner’s allegations that the condo has registered its own website (Response, ¶ 11) and has not yet brought suit against another similar domain name (Response, ¶ 12) are completely irrelevant. The issue here is whether respondent has the right to infringe upon the condo’s trademark, not whether the condo has taken any other action to protect itself or pursue other respondents.
For all of these reasons and the reasons detailed in the Amended Complaint, Complainant respectfully requests that the Panel issue a decision that the domain name registration for the name “independenceharbor.com” be transferred to Complainant.
Tracey E. Diamond