Full Legal Complaint Against Noel Turner
This article is the original complaint from the Independence Harbor Condominium Association.
Independence Harbor Condominium Association Inc.
361 River Road,
Edgewater, NJ 07020
504 Smith Court
Edgewater, NJ 07020
Domain Names in Dispute:
File No. FA0603000666077
Amended Complaint in Accordance with the Uniform Domain Name Dispute Resolution Policy
This Complaint is hereby submitted 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 3(b)(i).
[2.] Complaint Information
- Name: Independence Harbor I Condominium Association, Inc.
- Address: 361 River Road, Edgewater, NJ 07020
- Telephone: 201-945-7888
- Fax: 201-945-0837
- E-Mail: firstname.lastname@example.org
[2.A.] Complaint’s Authorized Representative Information
- Name: Tracey E. Diamond, Esq., Berger Legal
- Address: 52 Cameo Drive, Cherry Hill, NJ 08003
- Telephone: (856) 296-4751
- Fax: (856) 424-2998
- E-Mail: email@example.com
ICANN Rule 3(b)(ii).
The Complainant’s preferred method for communications directed to the Complainant in the administrative proceeding: email at firstname.lastname@example.org
- Method: e-mail
- Address: email@example.com
- Contact: Tracey E. Diamond, Esq.
Material Including Hard Copy
Method: federal express
Address/Fax: 52 Cameo Drive, Cherry Hill, NJ 08003
Contact: Tracey E. Diamond, Esq.
ICANN Rule 3(b)(iii).
The Complainant chooses to have this dispute heard before a single-member administrative panel. ICANN Rule 3(b)(iv).
[3.] Respondent Information
- Name: Noel Turner
- Address: 504 Smith Court, Independence Harbor, Edgewater, NJ 07020
- Telephone: 917-779-9761
- Fax: unknown
- E-Mail: firstname.lastname@example.org
ICANN Rule 3(b)(v).
[4.] Disputed Domain Names
- The following domain name(s) is/are the subject of this Complaint: independenceharbor.com
- ICANN Rule 3(b)(vi).
- Registrar Information: ICANN Rule 3(b)(vii).
- Registrar’s Name: Go Daddy Software, Inc.
- Registrar Address: 14455 N. Hayden Road, Suite 219, Scottsdale, AZ 85260
- Telephone Number: (480) 505-8899
- E-Mail Address: email@example.com
- Trademark/Service Mark Information: ICANN Rule 3(b)(viii).
The Complaint is based on the trademark INDEPENDENCE HARBOR, Registration nos. 2567209 and 2558616. Complainant is the exclusive licensee of this trademark in connection with real estate management and commercial, residential and retail sale and leasing activities associated with the “Independence Harbor” development located in Edgewater, New Jersey.
[5.] Factual and Legal Grounds
This Complaint is based on the following factual and legal grounds: ICANN Rule 3(b)(ix).
- Complainant has used the trademark INDEPENDENCE HARBOR trademark extensively and continuously since 1987 in the real estate community. Significant money has been invested in advertising and promoting the trademarks. As a result, substantial public recognition and goodwill has developed in the marks. Domains by Proxy, Inc. has registered the domain name www.independenceharbor.com on behalf of William Anker or another individual. The domain name independenceharbor.com is identical to the INDEPENDENCE HARBOR trademarks in which the Complainant has rights. ICANN Rule 3(b)(ix)(1); ICANN Policy ¶ 4(a)(i).
- The Respondent has no rights or legitimate interests in respect of the domain name. ICANN Rule 3(b)(ix)(2); ICANN Policy ¶ 4(a)(ii). In fact, it appears that the only use of the domain name is to maintain a website that attempts to describe the Independence Harbor real estate development. This website has not been authorized by the Complainant and contains numerous inaccuracies about the Independence Harbor real estate property.
- The domain name has been registered and is being used in bad faith. Respondent has registered the domain name solely for the purpose of disrupting the business of Complainant and has intentionally attempted to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation and endorsement of its website. ICANN Policy ICANN Rule 3(b)(ix)(3); ICANN Policy ¶¶ 4(a)(iii) and 4(b)(iii) and (iv). It is likely that users have mistakenly visited this website and received bogus information about the Independence Harbor property. Such use of the domain name has caused, and will continue to cause great harm to Complainant.
[6.] Remedy Sought
The Complainant requests that the Panel issue a decision that the domain-name registration be transferred to Complainant. ICANN Rule 3(b)(x); ICANN Policy ¶ 4(i).
[7.] Other Legal Proceedings
None. ICANN Rule 3(b)(xi).
[8.] Complaint Transmission
The Complainant asserts that a copy of this Complaint, together with the cover sheet as prescribed by NAF’s Supplemental Rules, has been sent or transmitted to the Respondent (domain-name holder), in accordance with ICANN Rule 2(b) and to the Registrar(s) of the domain name(s), in accordance with NAF Supp. Rule 4(e). ICANN Rule 3(b)(xii); NAF Supp. Rule 4(c).
[9.] Mutual Jurisdiction
The Complainant will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the location of the principal office of the concerned registrar. ICANN Rule 3(b)(xiii).
Complainant agrees that its claims and remedies concerning the registration of the domain name, the dispute, or the dispute’s resolution shall be solely against the domain-name holder and waives all such claims and remedies against (a) the National Arbitration Forum and panelists, except in the case of deliberate wrongdoing, (b) the registrar, (c) the registry administrator, and (d) the Internet Corporation for Assigned Names and Numbers, as well as their directors, officers, employees, and agents.
Complainant certifies that the information contained in this Complaint is to the best of Complaint’s knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint 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.
Tracey E. Diamond, Esq.
SCHEDULE OF EXHIBITS
- Assignment and License Back Agreement whereby Hartz Mountain Development Corp. and Hartz Mountain Industries, Inc. (together, “Hartz”) assigned to Delaware River Port Authority (“DRPA”) the Independence Harbor mark (Registration Nos. 2,558,616 and 2,567,209) and whereby DRPA granted to Hartz a license to use the Independence Harber Mark in connection with the real estate management and commercial, residential and retail sale and leasing activities associated with the “Independence Harbor” development located at 361 River Road in Edgewater, New Jersey (the “Edgewater Development”).
- Assignment of Trademark License assigning all of Hartz’s rights and interests in the Independence Harbor Mark to Independence Harbor I Condominium Association, Inc. (“Complainant”)
- Letter from John J. Matheussen, Chief Executive Officer of DRPA, confirming Complainant’s exclusive license to use the Independence Harbor mark in connection with the real estate management and commercial, residential, and retail sale and leasing activities associated with the Edgewater Development.
- Copy of Whois search results indicating that Domains By Proxy, Inc. is the registrant of the domain name INDEPENDENCEHARBOR.COM and that GoDaddy.com is the registrar.
- Copy of the first page of the independenceharbor.com website depicting the Edgewater Development.