Thursday, July 2, 2009

eResolution Dream Island Submission 2- page 11 to page 15

Category 2 - Illegitimacy






Category 2 – Illegitimacy

Submission 2 (Complainant’s Submission Annexure 2)

Legitimate Commercial Interests

The Respondent has a legitimate commercial interests in and to the disputed domain name.

1. For some 2 years now, the Respondent has been involved in the planning and development of several targeted websites through which to develop further his commercial interests in ecommerce.

2. For this purpose, and this purpose alone, the Respondent obtained by way of registration a number of selected domain names including the disputed domain name.

3. The Respondent has not over sold any of the domain names referred to in paragraph 2 immediately above or indeed any domain name registered in his name…despite numerous offers.

4. It was not, and is not, the intention of the Respondent to embark upon the practice of “cybersquatting” ie. the practice of acquiring registered domain names for the sole purpose of selling them at a later date to a corporation for a higher price or profit.

5. The Respondent obtained the disputed domain name in December 1999 for legitimate business or commercial reasons. The Respondent intends that the domain name “daydreamisland.com” will be utilized in a Website with an “Art, Poetry and Music” concept or theme. Similar websites include:

* “treasureisland.com” (owned by the Las Vegas Mirage Casino Hotel)
* “fantasyisland.com” (legal porn site)
* “mysteryisland.com” (under construction)
* Browser return for “dreamisland.com” showing site as unavailable
* 000domains search for “dreamisland.com” reveals site unavailable
* 000domains search for owner of “dreamisland.com” reveals Keith Thompson from 19 August 1997

See Exhibit 11

6. The Respondent has spent hundred of hours and many thousands of dollars in the planning and devolpment of the “daydreamisland.com” concept.

7. The Respondent has developed a Business Plan for the websites business to be conducted under the domain name “daydreamisland.com”.

THE CONTENTS OF THE BUSINESS PLAN CONTAINS COMMERCIALLY SENSITIVE INFORMATION WHICH IS CONFIDENTIAL BUT THE RESPONDENT WILL, IF REQUESTED, PROVIDE A COPY TO THE PLANELIST ON A CONFIDENTIAL BASIS AND ON THE BASIS THAT IT NOT BE DISCLOSED TO THE COMPLAINANT OR ANYONE.

8. The Respondent commenced Website site design for “daydreamisland.com” immediately upon registering the domain name in December 1999. Development has taken place on a local server and the website is “parked” at another URL address during construction and pending completion and launch.

THE ADDRESS OF THE URL IS CONFIDENTIAL BUT THE RESPONDENT WILL, IF REQUESTED, PROVIDE THE ADDRESS TO THE PANELIST ON A CONFIDENTIAL BASIS AND ON THE BASIS THAT IT NOT BE DISCLOSED TO THE COMPLAINANT OR ANYONE.

It is not usual for a web page under construction to be parked at another URL during development with the websites address disclosing merely that the domain name is no longer available:

Eg. Browser search for “www.cutthroatisland.com” reveals site unavailable being unable to determin IP address from host name

9. There is no requirement at law or otherwise for the Respondent to “offer any evidence to the Complainant that he actually has or will use the name Daydream Island”: compare Annexure 2 “Illegitimacy”, para. 1 More importantly, again the misleading nature of the Complainant’s submission fails to point out that the Complainant did not ever request the Respondent to provide any such information either on an open or “without prejudice” basis but rather demanded that the Respondent sign and deliver to the Complainant a transfer form in the nature of an agreement: See Exhibit 10

10. For the reason disclosed in paragraph 9 above, the Complainant’s argument that:

“Any assertion of future use is in the Complainant’s opinion, unsatisfactory as the Respondent has not conducted any advertising campaigns, market tests, focus groups, logo design or any other related outlays with a bona fede offering of goods or services” completely lacks credibility.

The Respondent’s Business Plan reveals that the Respondent engaged persons to design a logo (which is complete), undertaken market research and feasibility studies ALL OF WHICH ARE CONFIDENTIAL AND LEGITIMATELY IN THE RESPONDENT’S COMMERCIAL INTERESTS NOT TO DISCLOSE OR BE FORCED TO DISCLOSE BY REASON OF THESE PROCEEDINGS OR OTHERWISE.

Summary

The Respondent has for some 2 years now, been involved in the planning and development of several targeted websites including “daydreamisland.com”.

The Respondent obtained the disputed domain name in December 1999 for legitimate business or commercial reasons. The Respondent intends that the domain name “daydreamislan.com” will be utilized in a Websites with an “Art, Poetry and Music” concept or theme.

The Respondent has developed a Business Plan for the websites business to be conducted under the domain name “daydreamisland.com”.

The Respondent commenced Website site design for “daydreamsisland.com” immediately upon registering the domain name in December 1999. Development has taken place on a local server and the website is “parked” at another URL address during construction and pending completion and launch.

The Respondent has spent hundred of hours and many thousands of dollars in the planning and development of the “daydreamisland.com concept.

The Respondent’s Business Plan reveals that the Respondent engaged persons to design a logo (which is complete), undertaken market research market and feasibility studies.

Conclusion

The Respondent has a legitimate and legal right to use the disputed domain name for legitimate business and commercial gain.

The Complainant’s evidence and argument as to illegitimacy completely lack credibility. The Complainant’s submissions lack candour and are misleading.

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