Category 3 – Bad Faith
Submission 3 (Complainant’s Submission Annexure 2)
No Bad Faith
1. The Respondent repeats and relies upon the matters stated in Category 2 above – Illegitimacy
2. Further, it should be remembered that is was not the Respondent that initiated contact between the Respondent and the Complainant. This is consistent with and supports the contention of the Respondent that he does not wish to sell the disputed domain name because it was acquired for the stated legitimate business and commercial reasons noted above.
3. The Respondent has not posted a “sale price” at the URL address and the site is not for sale.
4. The Respondent has acquired or registered 2 only domain names (viz. “daydreamisland.com and sovereignislands.com”) which are similar to names given to islands along the Eastern Australian Coast and which include the following islands:
* South Molle Island
* Lindermann Island
* Lady Musgrave Island
* North Molle Island
* Hayman Island
* Gloucester Island
* Curtis Island
* Thursday Island
* Hinchinbrook Island
* South Stradbroke Island
* North Stradbroke Island
* Great Keppel Island
See Exhibit 5
At the time of the registration of the disputed domain name all of the islands listed above had domain names utilizing their geographical names available for registration as a dotcom.
IN THE PREMISES, THE RESPONDENT DID NOT, AND DID NOT EVER INTEND, TO CORNER THE “DOTCOM” MARKET IN DOMAIN NAME FOR ALL OF THE ISLANDS STRETCHING THE ENTIRE EASTERN AUSTRALIAN COASTAL REGION.
5. A mere corporate preference on the part of the Complainant to hold the registered domain name “daydreamisland.com” is not sufficient or any evidence of bad faith on the part of the Respondent.
The correspondence between the Complainant and its Lawyers (Letters 2 June 2000 and 8 August 2000 – Annexure “E” to Complainant’s Annexure 2) discloses clearly that the Complainant’s corporate preference is to abandon “daydream.net.au” and obtain the disputed domain name. The preference is based upon an internal management perception of marketing. On their own evidence, the domain name “daydream.ent.au” is attracting many hits… so the Complainant’s commercial reasoning is also open to question. It can hardly be said (much less demonstrated) that the Complainant’s commercial interests are being harmed by reason of its not having secured the disputed domain name… particularly when other more suitable names are available.
6. Further, the material contained in the correspondence of Redchip Lawyers to Roger Powell (Letter dated 20 June 2000, Complainant’s Submissions Annexure “F”) appears to indicate that the Complainant has set out to entrap the Respondent by making a “phoney” offer with the intention of building a case in these proceedings were that offer to be accepted.
That letter states in part:
“In our attempts to have the domain transferred to Daydream Island Pty Ltd we suggested you write to Alessandro Sorbello on the company’s letterhead in accordance with the attached draft.
You will notice in the attached letter we suggest that Daydream Island Pty Ltd maybe interested in purchasing the domain name off Alessandro Sorbello.
The purpose of this letter is to confirm that Alessandro Sorbello has registered the name in bad faith presumably for the purposes of selling it to Daydream Island Pty Ltd…
Should you receive an offer to buy the name for consideration from Alessandro Sorbello we will proceed to make an Application for transfer of the name.
It is envisaged that Mr Sorbello’s offer to sell will be utilized as evidence of bad faith…”
It is submitted that as the Complainant was not is not able to produce any evidence of bad faith on the part of the Respondent, it then proceeded to embark upon a course of conduct designed solely to build a case in these proceedings. This conduct not only arguably amounts to misleading and deceptive conduct in breach of Consumer Protection Legislation currently in force in Australia but also reveals bad faith on the part of the Complainant in the prosecution of these proceedings.
7. The Complainant’s argument in paragraph 10 of its submission on “Bad Faith” is misleading as the Complainant does not have any rights in the words alone by reason of the express endorsement on each of the Complainant’s marks (see arguments in Submission 1 above). The Respondent has developed a Business Plan for the websites business to be conducted under the domain name “daydreamisland.com”. 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 and feasibility studies.
Again, 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 Again more importantly, the misleading nature of 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.
The Respondent did not register the domain name in bad faith but for legitimate commercial reasons.
It was the Complainant who initiated contact with the Respondent. The Respondent did not “seek out” the Complainant in order to sell at a profit the disputed domain name.
The disputed domain name is not for sale.
The Complainant may have engaged in misleading and deceptive conduct in seeking to tender a “phoney offer” solely for the purpose of substantiating a case in these proceedings.
The Respondent is not set out to corner the market in dotcoms for domain names for all islands of Eastern Australian Coast… there is no pattern of conduct from which bad faith could be inferred.
A mere corporate preference on the part of the Complainant to hold the registered domain name “daydreamisland.com” is not sufficient or any evidence of bad faith on the part of the Respondent.
The Respondent has a legitimate and legal right to use the disputed domain name for legitimate business and commercial gain.
There is no, and no evidence of, bad faith on the part of the Respondent in registering or maintaining registration of the disputed domain name.