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The Complainant is Levantur, S.A of Palma de Mallorca, Spain, represented by Landwell, PricewaterhouseCoopers, Spain.
The Respondent is Media Insight of Miami Beach, Florida, United States of America, represented by Gaebe, Mullen, Antonelli, Esco & Dimatteo, United States.
The disputed domain name <granbahiaprincipejamaica.com> (the “Domain Name”) is registered with Melbourne IT Ltd.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2009. On May 8, 2009, the Center transmitted by email to Melbourne IT Ltd a request for registrar verification in connection with the Domain Name. On May 11, 2009, Melbourne IT Ltd transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 14, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 3, 2009. The Response was filed with the Center on June 3, 2009.
The Center appointed Warwick Smith as the sole panelist in this matter on June 15, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On June 16 2009, the Complainant filed an unsolicited further submission. The Respondent's representative then sent an email to the Center seeking leave (in the event of the Complainant's supplementary filing being accepted) to file a Supplementary Response.
By procedural direction made on June 22 2009, the Panel exercised its discretion to admit and consider the Complainant's supplementary filing and, pursuant to paragraph 12 of the Rules, sought clarification from the Complainant on certain aspects of the Complaint and the Complainant's supplementary filing. The Panel also requested a further statement from the Respondent, explaining how and why the Respondent had selected the Domain Name. Both parties' supplementary statements were to be filed by June 25, 2009, and the time for the Panel to give its decision in the case was extended to Friday, July 3, 2009.
Both parties filed supplementary statements in response to the requests made by the Panel in its June 22, 2009 procedural directions. The Respondent's Supplementary Response contained material going beyond what was necessary to answer the Panel's request of the Respondent made on June 22, 2009, but having received and considered the Complainant's unsolicited supplementary filing dated June 16, 2009 the Panel determined that the unsolicited parts of the Respondent's Supplementary Response should also be admitted.
By procedural order No. 2 made on June 30, 2009, the Panel sought clarification of certain aspects of the Respondent's Supplementary Response, and also comment from the Respondent on the content of some January 2007 web pages from a website at the Domain Name which were archived on the Wayback Machine at “www.archive.org”. The time for the Panel to give its decision in the case was further extended to July 10, 2009.
The Respondent filed a timely Response to the Panel's June 30, 2009 request. The Panel has taken all of the parties' supplementary filings into account in this decision.
The Complainant is part of the Pinero Group, a leading player in the Spanish tourism industry. The Complainant is particularly involved with the hotel part of the group's business. It operates hotels in Spain, Portugal, Mexico and the Dominican Republican. It opened its first “Bahia Principe” hotel in the Dominican Republic in 1995, and it says that each of the 15 luxury hotels which it owns contains in its name the expression “Bahia Principe”, followed by the relevant geographical identifier for the hotel. One of the hotels is a hotel at Runaway Bay, Jamaica, called “Gran Bahia Principe Jamaica”.
The Complainant says that the term “Bahia Principe” is not the name of any geographical location, although the Panel notes from an extract which the Complainant produced from the United States Patent and Trademark Office (“USPTO”) trademark database that the English translation of the expression “Bahia Principe” is “Prince Bay”. According to the Complaint, the word “Gran” in Spanish means “big”.
The Complainant is the registered proprietor of a figurative service mark registered in international class 42 in both Spain and the United States. The service mark (“the Complainant's mark”) consists of a sun device with rays, immediately above the words BAHIA PRINCIPE CLUBS & RESORTS. The words “Bahia Principe” in the Complainant's mark are underlined, and they appear in larger font than the words “clubs & resorts”, which are immediately beneath them.
The Complainant's United States registration dates from August 20, 2001, and covers “accommodation services, namely hotels” in international class 42. The printout from the USPTO database refers to a first use in commerce in 1999. There is a disclaimer in respect of the CLUBS & RESORTS part of the Complainant's mark.
The Complainant says that it is commonly known in the Spanish and international markets under the abbreviated name “Bahia Principe”, and not by the full trade mark. In support of that statement, the Complainant says that the Spanish entity which is responsible for registration of domain names in the “.es” domain name space has until recently required that a domain name could only be registered in that space if it was a valid trademark in Spain. The Spanish authority for the “.es” space had accepted “Bahia Principe” as a valid trademark.
The Complainant has referred to extensive publicity for its hotels under the BAHIA PRINCIPE abbreviated mark, and has provided evidence of certain prizes won by some of its Bahia Principe hotels. It has made extensive investments in advertising its hotels and travel services in various media, and in particular in the design and functioning of its websites, from which it generates most of its sales and hotel reservations.
In addition to the Complainant's mark, the Complainant has provided a list of some 56 domain names which it has registered in various generic or country code domains. All of them consist of or include the expression “bahia principe”. The Complainant produced a copy of a tracking report relating to its main website at “www.bahia-principe.com”, showing that 17.4% of Internet users searching for the Complainant's website do so using the words “Bahia Principe”.
The Complainant claims that its BAHIA PRINCIPE trademark has become widely known in its sector, and should be considered as a well-known trademark.
The Domain Name was registered on June 23, 2005. The Complainant says that it did not authorise the Respondent to register the Domain Name, and that the Respondent does not have any identity or corporate name which is confusingly similar to the Domain Name.
“Welcome to the all-inclusive Gran Bahia Principe Jamaica!
The text then set out various particulars of the hotels' facilities and services, and details of an “all inclusive plan”. There were toll-free telephone numbers for enquirers to check on rates and availability, and a 2007 copyright claim by “Vacation Tours Inc”. The email address for enquiries appears to have been an email address operated by that company.
The Complainant says in its Complaint that the Respondent's website promotes hotel services offered by companies which are in competition with the Complainant. The Complainant says that it is not possible to book a room at the Complainant's hotel on the Respondent's website. When Internet visitors want to check on the availability of a hotel room they are redirected to a website operated by Vacation Tours Inc.
The Complainant produced a copy of a page from the Vacation Tours website, downloaded on May 5, 2009. This website (also an English language website) offered travel packages to “the best vacation spots in the world”. It appears to have been directed at the American travel market. Click-on links (which appear to have consisted mostly of geographical locations in Mexico or the Caribbean) were displayed down one side of the web page. These links do not appear to have been limited to websites marketing only the Complainant's hotels.
According to the Response, the Respondent operates the media division of a Florida-based wholesale tour group operated by Vacation Store Inc (the group is referred to hereafter as “Vacation Store”). Vacation Store provides wholesale and retail travel packages for travel to destinations outside the United States. The Respondent makes its profit by purchasing at favorable rates from airlines, hotels and transportation companies, putting together travel packages, and selling those packages at a profit, primarily to retail travel agencies.
Vacation Store formed its media division “Media Insight” in 2003, and the media division was subsequently incorporated in the State of Florida as the Respondent. The Respondent says that Vacation Store began registering various domain names shortly after the media division was opened, and the Respondent continued that activity after its incorporation.
The Respondent says that it and Vacation Store have transacted substantial business with the Complainant over the years since the early 2000s. It says that Vacation Store has, over that time, been authorized by the Complainant to sell the Complainant's hotel rooms. Furthermore, the Respondent says that the Complainant has authorized Vacation Store (and other travel agencies and advertisers of the Complainant's products) to use the Complainant's copyright materials, on their respective websites. The Complainant has done this by allowing Vacation Store and the other travel agencies special password-protected access to the Complainant's copyright materials on the Complainant's website at “www.bahia.principeusa.com.” The Respondent says that travel agents are there authorized and encouraged to use the Complainant's printed materials, including logo and trademark, on their individual websites.
The Respondent denies that it has been trying to divert customers from the Complainant's business, and says that the opposite has in fact been the case – the Complainant has benefited from the custom generated for its hotels through the various Vacation Store websites.
The Respondent says that the Complainant has known of the Respondent's use of the Domain Name, but has elected not to make any complaint about it (although the Complainant did file a complaint against the Respondent for using other “Bahia Principe” domain names – as to which, see further below).
The Respondent points out that, of the numerous domain names that the Complainant has registered which include the words “Bahia Principe”, none contains the word “Gran” coupled with a geographic description. And although the Complainant owns a number of hotels which incorporate in their names the word “Gran”, none has a domain name associated with it. And of the Complainant's hotels that do have the word “Gran” as part of their names, only the hotel which is at issue in this proceeding also contains the name of a country (Jamaica) – all others contain the names of the more specific geographic areas within the countries where the hotels are respectively located.
The Respondent asserts that the Complainant did not name and open the hotel at Runaway Bay, Jamaica, until 2008, being some three years after the Respondent had registered the Domain Name. The Respondent says that the reason the Respondent called the hotel “Gran Bahia Principe Jamaica” (rather than “Gran Bahia Principe Runaway Bay”, which would have been consistent with the style in which its other resort hotels have been named) was to capitalize on the hard work the Respondent had put in developing the Respondent's website prior to the opening of the Complainant's hotel.
The Respondent says that the only goods or services offered through the Respondent's website are the Complainant's hotel rooms. The first notice the Respondent received of the Complainant's objection to this use of the Domain Name, was the filing of the present proceeding.
Further in support of its contention that the Complainant has pursued this administrative proceeding for the collateral purpose of applying improper pressure on the Respondent (and ultimately securing a resolution of the Florida Court action which will be favorable to the Complainant), the Respondent says that the Complainant has elected not to file domain name dispute claims against numerous other travel agents or domain name holders who are using the Complainant's name in their domain names (e.g. the travel agency “Bookit” is said to have the domain name bahiaprinciperesorts.bookit registered, but no action has ever been taken by the Complainant against that company).
The Respondent did not attach with its Response any documents corroborating the various allegations made.
1. “The Respondent did not attach any document or contract to prove any business relation with the Complainant, “because it kind of relation existed only three years ago with Vacation Store, but after a fraud action ($USD300,000) about the charters company MIA, the mentioned relation was cancelled and not renewed”.
2. “Taking account of this fact, must be clear the willpower of [the Complainant] on not having, any more, business relations with the respondent because of the mentioned precedents”.
3. “The aim of this response is to insist on the fact that my client has enough resources to manage its own company without needing an external agency”.
4. “After the mentioned fraud action, my client broke any relation with the Respondent, what means that it has no rights to use my client's trademark, logo or even the name to get benefits with them”.
5. “Registering the [ Domain Name], and using it to get profit after knowing [the Complainant] neither want not allows any kind of business relationship with the Respondent shows bad faith on the Media Insight/Vacation Store actions”.
As noted in the Procedural History section of this decision, the Panel admitted the Complainant's unsolicited June 16, 2009 email, and sought clarification of certain aspects of it. Specifically, the Panel enquired about the nature of the business relationship between the Complainant and Vacation Store or the Respondent, and requested copies of any relevant written contractual terms. The Panel also enquired as to when any business relationship between the parties commenced and was terminated, and when the Complainant first became aware that the Respondent had registered the Domain Name. In the supplementary statement it filed in response to that Panel request, the Complainant acknowledged that there has been a business relationship between itself and Vacation Store. One aspect of the relationship related to the sub-chartering of flights between Florida and the Dominican Republic. The Complainant said that that relationship commenced on November 9, 2005 and finished on April 27, 2006. On the latter date, the Complainant says that it terminated the relationship because of the Respondent's alleged unilateral action in purporting to amend the terms of the agreement between the parties.
The Complainant also provided copies of two “proposals” signed by the Complainant and Vacation Stores relating to the Gran Bahia Principe Bavaro and Bahia Principe San Juan resorts, each dated July 8, 2005. These two contracts related to accommodation services, but do not appear to have specifically mentioned the use of the Complainant's trademark, the registration of a domain name, or the use of “Bahia Principe” signs or logos. According to the Complainant, these accommodation service contracts were initiated on December 21, 2005, and ran for one year from that date, with no renewal.
On the question of when the Complainant first became aware of the registration of the Domain Name, the Complainant said “Respondent was aware of the registration of [the Domain Name] recently, more specifically [the Complainant] was warned of the captioned registration on 17th March 2009. An email was sent by a Sales Manager who works for Bahia Principe in Paraguay asking about de legality on using the Company trademark on [the Domain Name]. The Complainant did not provide a copy of that email.
In addition, the Respondent repeated much of what it had said in its Response. According to the Respondent's supplementary statement, the early relationship between the Complainant and Vacation Store proved beneficial to both parties, and in 2004 it was extended to the arranging of air charters from Miami to the Complainant's various hotels. There were subsequent charter agreements entered into by the parties, until April 2006, when the Complainant elected to rent its own fleet of planes directly from Miami Air. The air charter agreements between the parties ended at that point.
The Respondent asserted that the Complainant was aware in 2005 of the use of the Domain Name by the Respondent, because the Respondent's website was used to book rooms at the Complainant's hotels during the 2005 and 2006 season.
The Respondent produced a copy of a written contract between the Complainant and Vacation Store, dated July 12, 2004. The contract provided for special rates for Vacation Store at the Complainant's Punta Cana resort, for a “Labour day charter”.
By its further procedural order made on June 30, 2009, the Panel requested that the Respondent provide some sample documents corroborating its statements that the Complainant was aware in 2005 of the Respondent's use of the Domain Name, and that the Domain Name was used in 2005 and 2006 to book rooms at the Complainant's hotels. In a second Supplementary Response dated July 2, 2009, the Respondent provided certain documents relating to bookings at the Complainant's Punta Cana hotel in February 2006. However, those documents do not appear to prove that the Domain Name or the Respondent's website were used to make the bookings. In addition, the Respondent provided two emails dated April 8, 2005 and September 20, 2005, both in the Spanish language. No translations were provided.
The Respondent also attached to its second supplementary statement an affidavit sworn by a Mr. Alvarez, Vice President of Operations for Vacation Store. This affidavit alleged the existence in 2005 of a marketing agreement between the Complainant and Vacation Store, which was said to cover print media and web advertising, including advertising using the Respondent's website. The affidavit named an executive within the Complainant organisation who was said to have participated in the negotiations for this marketing agreement, and stated that that representative was shown the web pages, including pages from the Respondent's website, that were being used in the promotions. Mr. Alvarez deposed that the Complainant's representative approved of the use of the web pages for the promotions, and encouraged the Respondent to continue with the promotions.
In its second supplementary statement, the Respondent said that it was not aware of the name of the Complainant's proposed hotel at Runaway Bay in Jamaica when it registered the Domain Name. It said that it believed that the Complainant's hotel was going to be named “Bahia Principe Jamaica Resort”. (In support of that contention, the Respondent produced an email dated April 18, 2005 from Yolanda Hernandez of the Complainant, which noted “the upcoming opening of Bahia Principe Jamaica in Summer 2006”).
The Respondent explained that its use of the name “Gran Bahia Principe Jamaica” on the web pages in 2007 was not meant to represent the name of the hotel. It said that that name was used to encourage potential customers to come back to the Respondent's website to obtain additional information.
The Respondent acknowledged in its second supplementary statement that the Complainant and the Respondent no longer have a contractual relationship. However, the Respondent said that it continues to use the Respondent's website to book rooms at the Complainant's hotel, and the Complainant continues to receive economic benefits from those bookings and the advertising on the Respondent's website.
1. The Domain Name is confusingly similar to the Complainant's mark. The essential part of the Complainant's mark, the words BAHIA PRINCIPE, are reproduced in the Domain Name, and the only additions are the geographical identifier “Jamaica” and a commonplace Spanish adjective meaning “big”. The CLUBS & RESORTS part of the Complainant's mark merely describes the business the Complainant carries out under the mark; those words do not contribute to the distinctiveness of the Complainant's mark. The dominant parts of both the Domain Name and the Complainant's mark are thus identical. The addition of a geographic indicator or a non-distinctive word, or the misspelling of a trademark, is not enough to avoid Internet users' confusion between a complainant's widely-known services and a disputed domain name (citing Starwood Hotels & Resorts Worldwide Inc, The Sheraton, LLC, Sheraton International, Inc, Westin Hotel Management LP v. Services LLC, WIPO Case No. D2007-08729).
2. The Complainant has used the name “Bahia Principe” extensively, and is known in Spain and internationally under that name. The “Bahia Principe” name should be considered to be a well-known trademark, and worthy of protection as such.
(i) The Respondent is not commonly known by the Domain Name.
(ii) The Respondent does not use the Domain Name at all.
(iii) The Complainant has not consented to the Respondent's use of a domain name which is confusingly similar to the Complainant's mark.
(iv) The Respondent does not hold any relevant trademark or service mark.
(v) The Respondent has been trying to identify itself in the market by using the Complainant's mark. This is evidenced by the fact that the Respondent's website offers hotel services related with companies in competition with the Complainant, using the Complainant's trademark BAHIA PRINCIPE. The Respondent has registered the Domain Name with a clear speculative intention, taking advantage of the fact that the Complainant is well-known to the public.
(vi) The use on the Respondent's website of the Complainant's mark and signs, is intended to make Internet users booking through the Respondent's website believe that they are really using the Complainant's booking services. In fact, the Respondent's website is merely being used to redirect Internet users to the website operated by Vacation Store.
(vii) The Respondent has not proved that it has had any business relationship with the Complainant. A business relationship which did exist was cancelled 3 years ago, and has not been renewed. The breaking of that relationship means that the Respondent has no rights to use the Complainant's mark or logo, or to derive benefits from them.
(viii) The contracts between the parties, and the correspondence, show that the Respondent and Vacation Store have no rights to offer accommodation services using the Complainant's resources, without the Complainant's consent, and against its will.
(i) It is impossible to believe that the Respondent was unaware of the Complainant's business, as the Respondent has been using the Complainant's mark to confuse users on the booking services.
(ii) The absence of any content on the Respondent's website apart from links to hotel services of other companies is further evidence of the Respondent's bad faith.
(iii) The Respondent has been found guilty of bad faith registration and use of domain names in the past, including the domain name <bahiaprincipejamaica.com>. The present proceeding should be resolved in the same way that the proceeding relating to that Domain Name was resolved, namely by order for transfer of the Domain Name to the Complainant.
(iv) The Respondent knew when it registered the Domain Name that it would be unable to use the Domain Name without violating the Complainant's rights.
(v) Many potential customers of the Complainant have been deceived after trying to book non-existent services through the Respondent's website, and that can only be damaging to the Complainant.
(vi) The Respondent has acted in bad faith by establishing links from the Respondent's website to other websites offering leisure and accommodation services which are competitive with the Complainant's business. The only purpose which explains the Respondent's acts, is to make a profit from the Complainant's business by confusing Internet users.
(vii) The Respondent's unauthorized use of the Complainant's mark and/or logo on the Respondent's website is a further indicator of the Respondent's bad faith.
(viii) The Respondent's bad faith is sufficiently demonstrated by the Respondent's keeping and managing the Domain Name, and offering accommodation services through the Respondent's website, after the Respondent knew that its relationship with the Complainant had been terminated.
(ix) The Respondent has been guilty of one or more of the forms of bad faith registration and use which are listed at paragraph 4(b) of the Policy.
1. Generic names, geographic names, and common words are not protected marks. The Domain Name is a generic name, consisting of nothing more than generic and geographic terms. Such terms have no protection under United States Federal trademark law. There is nothing in the Domain Name that would indicate that it relates to “Bahia Principe”. There is nothing in any of the terms which make up the Domain Name which would give any individual looking at the Internet an indication that the Domain Name is associated with the Complainant.
2. The Respondent registered the generic name “GranBahiaPrincipeJamaica” in anticipation that there might be reason to promote resorts in that geographic area. (The Respondent has registered other domain names consisting of the name of a hotel chain coupled with a geographical place name, notwithstanding that the particular hotel chain did not operate any hotel in that particular location. The purpose of such registrations is to attract customers to other hotels operated by the hotel chains.) At that time, the Respondent believed that the Complainant's planned hotel in Jamaica would be named the “Bahia Principe Jamaica Resort”.
3. The Respondent and/or Vacation Store have had contracts with the Complainant since 2000, under which they have been authorized to sell the Complainant's hotel rooms.
4. There is no evidence that the Respondent has offered to sell or otherwise transfer the Domain Name to the Complainant, or of the Respondent having attempted to disrupt the Complainant's business, whether by trying to divert customers from the Complainant's business or otherwise.
5. The Complainant has licensed or otherwise authorized the Respondent to use the trade names, service marks, and the websites of the Complainant. (The Complainant has actively encouraged the Respondent and other travel agents to use the Complainant's mark and other copyright materials, by providing access to those materials for use by the Respondent and other travel agents, on the Complainant's website at “www.bahiaprincipeusa.com”). Thus, the Respondent should be considered as having rights or legitimate interests in respect of the Domain Name.
6. The Complainant knew of the Respondent's use of the Domain Name, but elected not to pursue the matter (although it filed a complaint against the Respondent relating to the Respondent's registration of other “Bahia Principe” domain names). The Complainant elected to name its hotel at Runaway Bay, Jamaica, as the “Gran Bahia Principe Jamaica”, in order to take advantage of the work the Respondent had put in, in developing the Respondent's website.
7. The Complainant has not registered any domain name with the word “Gran” in it. The Complainant's mark is not recognized when it is preceded by the word “Gran” (otherwise the Complainant would have been registering domain names incorporating the word “Gran”).
8. There is no evidence of any pattern of domain name hijacking by the Respondent.
9. The Respondent has used the Domain Name in connection with a bona fide offering of goods and services, namely the sale of the Complainant's hotel rooms.
10. It is impossible for the Panel to determine that the Respondent knew of the name of the hotel at the time it registered the Domain Name, since the hotel was not then in existence. In fact, it is the Complainant who is the one who is guilty of infringement, by intentionally naming a hotel after a domain name that had been in existence for years.
11. The Respondent believed, and had reasonable grounds to believe, that its use of the Domain Name was fair and lawful.
12. The Respondent has spent substantial resources promoting the Domain Name and building up the Respondent's website. The Complainant has done nothing in a timely manner to protect its claimed exclusive interest in the Domain Name, and since the hotel opened in 2008 the Complainant has received income from the sale of the hotel rooms promoted on the Respondent's website. In those circumstances, it would be inequitable to permit the Complainant to prevail in this proceeding.
13. There are factual disputes in this case which render it inappropriate for the Panel to rule on the Complainant's claims. Questions of legitimate use, fair use, or consent, are not issues for the Panel to decide – such issues should be left to the courts.
14. The Complainant is using this proceeding for the improper purpose of applying pressure on Vacation Store to settle the litigation in the Florida Courts. The Complainant thus has unclean hands, and should not be entitled to any relief.
15. The Respondent's website was originally developed as a generic web page, which was used to promote various hotels. When the Complainant's Jamaica hotel did open, and the Complainant provided actual photographs and descriptions of it, the Respondent's website was then modified to its current content, and used exclusively to promote only the Complainant's properties.
The Complainant has proved that it is the registered proprietor of the Complainant's mark in Spain and in the United States.
That being so, the question is whether the Domain Name is confusingly similar to the Complainant's mark. The Panel is satisfied that it is.
First, the Panel accepts the Complainant's submission that the part of the Complainant's mark which consists of the words “CLUBS & RESORTS” is purely descriptive of the services provided under the Complainant's mark, and as such does not contribute to the distinctiveness of the Complainant's mark. It is the expression “bahia principe” which forms the dominant part of the Complainant's mark.
The words “bahia principe” are included in their entirety in the Domain Name, and the incorporation of a complainant's trademark in full in a disputed domain name will often be sufficient to establish confusing similarity (see for example Nokia Group v. Mr. Giannattasio Mario, WIPO Case No. D2002-0782, and the decisions referred to at pages 4 – 5 of the decision in that case. See also the decision of the three-member panel in the Ritz Hotel v. Damir Kruzicevic, WIPO Case No. D2005-1137, and the decision of this Panel in Quintessentially UK Limited v. Mark Schnorrenberg/Quintessentially Concierge, WIPO Case No. D2006-1643). The Complainant's mark has not been incorporated in its entirety in the Domain Name in this case, but the heart, or essence, of the Complainant's mark has been incorporated.
The words “gran” and “Jamaica” in the Domain Name are not sufficient to avoid the confusing similarity caused by the inclusion of “Bahia Principe” in the Domain Name. “Gran” is a common Spanish word meaning “big”, or “large”, and would be recognized as such by a significant number of Internet users. Jamaica is simply a geographical identifier designating one of the countries in which the Complainant provides its resort hotel services under the Complainant's mark. The dominant, distinctive part of the Domain Name is the expression “bahiaprincipe”, and that expression is also the dominant, distinctive, part of the Complainant's mark. Moreover, the Panel is satisfied that a significant number of Internet users who were aware of the Complainant's hotel resort services provided under the Complainant's mark, would associate the Domain Name with the Complainant.
The Complainant's mark does include a sun device, but the Panel notes that in Sweeps Vacuum & Repair Center, Inc. v. Nett Corp, WIPO Case No. D2001-0031, the three-member panel held that because graphic elements of a complainant's trademark could not be reproduced in a disputed domain name, those graphic elements need not be considered when assessing identity or confusing similarity. The Sweeps decision was referred to by the majority in the recent three-member panel decision in Ruggedcom Inc v. James Krachenfels, WIPO Case No. D2009-0130 (in which the majority noted that UDRP panels have often accepted a fairly low threshold of proof for a complainant under paragraph 4(a)(i) of the Policy). The majority in Ruggedcom Inc expressed the view that the question at the heart of paragraph 4(a)(i) is whether the mark and the disputed domain name look, sound, and “feel” sufficiently similar that Internet users looking for websites associated with the complainant would be likely to arrive at a website at the disputed domain name. Internet users are well aware that domain names cannot incorporate figurative, or device, elements of a complainant's trademark, so in answering that question the principal focus must be on the word elements of the complainant's mark. In this case, the Panel is satisfied that the inclusion of the expression “Bahia Principe” in the Domain Name creates a sufficiently similar sound and impression for a finding of confusing similarity between the Domain Name and the Complainant's mark.
The “.com” suffix in the Domain Name is not taken into account in the comparison – see L'Oreal v. Avraham Mattan, Vichycare, WIPO Case No. D2007-0122, and Sidestep Inc v. Anna Valdieri/Marco Ferro, WIPO Case No. D2007-0212, followed by this Panel in Sanderling Pty Limited, trading as Thimblelady v. Roxanne International, WIPO Case No. D2007-0385.
For the foregoing reasons, the Panel concludes that the Domain Name is confusingly similar to the Complainant's mark. In those circumstances, it is not necessary for the Panel to determine if the Complainant enjoys unregistered trademark rights in a BAHIA PRINCIPE word mark.
In this case, the Complainant says that it did not authorize the Respondent to register the Domain Name. That assertion does not appear to be challenged by the Respondent: the Respondent's case appears to be that the Complainant was aware in 2005 that the Respondent had registered the Domain Name, but it does not appear to be suggesting that the Complainant knew and approved of the Respondent's proposed registration in advance.
There is no suggestion that the Respondent is commonly known by the Domain Name, so paragraph 4(c)(ii) of the Policy cannot provide a defense to the claim. Nor does it appear that the Respondent could claim any rights or legitimate interests under paragraph 4(c)(iii) of the Policy. The Respondent's use of the Domain Name appears to have been a commercial use (of the kind to which paragraph 4(c)(i) of the Policy is generally directed), rather than a legitimate noncommercial or fair use of the kind which paragraph 4(c)(iii) is intended to cover.
The foregoing factors are sufficient to establish a prima facie case, and the evidentiary onus therefore shifts to the Respondent. The question, then, is whether the Respondent has provided plausible evidence in its Response, and in its supplementary statements, that it does have some rights or legitimate interests in respect of the Domain Name. If a respondent satisfies that “plausible case” test, the complaint will normally fail. UDRP panels are not equipped to resolve complex factual disputes – such disputes are better dealt with by the courts.
1. The explanation for its choice of the Domain Name which the Respondent gave in its Response is simply not plausible. The Domain Name is not a generic name as the Respondent contended. It consists of a particular combination of words, three of them being in the Spanish language, and one being the name of a country. A combination of words, each of which might individually be generic or descriptive, is perfectly capable of being distinctive as a combination. Secondly, the Respondent's contention that “there is nothing in [the Domain Name] that would indicate that it relates to ‘Bahia Principe'” is palpably wrong – the names of all of the Complainant's 15 resort hotels contain the words “Bahia Principe”, and at least10 of them commence with the expression “Gran Bahia Principe” (followed in each case by the name of the location of the particular resort). In those circumstances, it was disingenuous of the Respondent to state in the Response that “there is nothing in any of those terms [i.e., the terms which make up the Domain Name] which would give any individual looking at the Internet an indication that the Domain Name is associated with the Complainant”.
2. The Response appeared to imply that the Respondent simply pulled the Domain Name out of the air when it selected it in June of 2005, with no inkling that the Complainant would open a hotel in Jamaica in 2008 bearing precisely the same name as the Domain Name. (See for example the statement in the Response: “As noted above, Respondent had registered the domain name three (3) years before Complainant had even opened its hotel. Thus, it is impossible for this Panel to determine that Respondent knew of the name of the Hotel at the time it registered the Domain Name, since the hotel was not in existence.”) It was only when the Panel put further questions to the Respondent, and referred the Respondent to the archived web pages from January 2007, that the real story began to emerge. The Respondent belatedly produced a copy of an email from the Complainant to Vacation Store dated April 11, 2005 (over two months before the Domain Name was registered), in which the Complainant referred to “the upcoming opening of Bahia Principe Jamaica in summer 2006”. Even when that email was produced, the Respondent still asserted (in its second supplementary statement dated July 2, 2009) that it believed that the hotel was going to be named “Bahia Principe Jamaica Resort”. In fact, the word “Resort” was not part of the name mentioned in the Complainant's April 11, 2005 email.
When the Respondent submitted its second Supplementary Statement, it became clear that that explanation provided only part of the story. The Respondent failed to state, either in the Response or in its first supplementary statement, that it already knew when it registered the Domain Name in June 2005 that the Complainant planned to open a “Bahia Principe Jamaica” resort in the summer of 2006.
6. The existence of sponsored links to the websites of some of the Complainant's competitors is consistent with the Respondent having chosen the Domain Name without the Complainant's prior knowledge and approval. The likelihood is that the Respondent, knowing of the Complainant's plans to build a “Bahia Principe Jamaica” resort hotel in Jamaica, decided to “steal a march” on the Complainant by registering the two most likely domain names which the Complainant might want to use to promote the new hotel. Those two domain names were of course <bahiaprincipejamaica.com>, and the Domain Name. The Respondent knew that registering a domain name incorporating either of the expressions <bahiaprincipejamaica.com> or <granbahiaprincipejamaica.com> would attract Internet users who were familiar with the Complainant and its hotel resorts, and that a proportion of that Internet traffic would click on the sponsored links to the third party websites (and thus produce click-through revenue for the Respondent). That is the kind of bad faith behavior to which paragraph 4(b)(iv) of the Policy is directed.
The existence of the sponsored links to third party websites in the early stages also effectively precludes any argument that the Respondent was then legitimately using the Domain Name as a genuine reseller of the Complainant's hotel services. For a domain name registrant to have a legitimate interest as a genuine reseller of trademarked goods or services, the registrant must use its website to sell only the trademarked goods or services. Otherwise, the registrant could be using the trademark to bait Internet users and then switch them to other goods – see Oki Data Americas Inc v. ASD Inc, WIPO Case No. D2001-0903, Volvo Trademark Holding AB v. Auto Shivuk, WIPO Case No. D2005-0447, and Roust Trading Limited v. AMG LLC, WIPO Case No. D2007-1857.
Although the Panel is satisfied that the Respondent had no rights or legitimate interests in the Domain Name at the point when it was registered, it remains to be considered whether the Respondent may have acquired a right or legitimate interest in the Domain Name at some time after the registration date. The possibility that a respondent might register a disputed domain name in bad faith but subsequently acquire such a right or interest was noted by this Panel in Lonely Planet Publications Pty Limited v. Mike Tyler, WIPO Case No. D2004-0670. For a respondent to prevail in such a case, the critical matter is that the respondent's right or legitimate interest must still exist at the date of the filing of the complaint.
The Complainant's evidence relating to the events after June 2005 was far from satisfactory. First, the Complainant did not fully disclose in its Complaint the extent and nature of its prior dealings with Vacation Store. The Complaint stated only that the Respondent had not been authorized or licensed to use the Complainant's mark. It went on to assert that the Complainant had “found” that the Respondent had incorporated pictures and the Complainant's signs on the Respondent's website, to make users believe that they were really using [the Complainant's] booking services. The Complainant also stated in the Complaint: “Is impossible to believe in the Respondent ignorance about the Complainant's business since is using he's trademark to confuse users on the booking services”.
Later in the Complaint, the Complainant noted: “There is another company behind the registration of the disputed Domain Name, Vacation Tours Inc.” The Complainant produced a copy of a web page from the website operated by that company, and the telephone numbers appearing on that website were the same as those which appeared on a letter which Vacation Store had sent to the Complainant in September 2005. The Panel therefore concludes that the Complainant must have known that Vacation Tours Inc. was part of Vacation Store, and that Vacation Store was ultimately the party behind the registration of the Domain Name. Documents produced by the Respondent show clearly that a business relationship between the Complainant and Vacation Store had existed going back to at least 2004. (Indeed, a letter on the Complainant's letterhead which the Respondent produced, dated July 12, 2004, referred to meetings held in Miami between a representative of the Complainant and Ms. Mendes of Vacation Store.) Notwithstanding this business background between the Complainant and Vacation Store, the Complainant gave the impression in the Complaint that the Respondent and Vacation Tours Inc were strangers to the Complainant. No hint of the business background which had existed between the Complainant and Vacation Store was disclosed in the Complaint.
Secondly, the Complainant relied strongly in its Complaint on the Respondent's unauthorised use of the Complainant's mark on the Respondent's website, including the reproduction of the sun device. The Complaint did not suggest how the Respondent might have obtained access to the Complainant's mark. It was not until the Response was filed that it appeared that the Complainant may have authorized the Respondent and other travel agents to use the Complainant's logos and marks on their websites, and for that purpose to copy those logos and marks directly from the Complainant's website at “www.bahiaprincipeusa.com”. One would have expected that claims to that effect would have been met with a vigorous denial from the Complainant if they were false. But although the Complainant promptly sent an (unsolicited) submission to the Center on June 16, 2009, that submission did not contain any denial of the allegation in the Response that the Complainant had allowed the Respondent and/or Vacation Store to use the Complainant's mark and the other copyright materials owned by the Complainant. Rather, the position taken in the Complainant's June 16, 2009 submission was to acknowledge that there had been a business relationship between the parties of the general kind alleged by the Respondent, but to assert that that arrangement was cancelled in 2006 because of alleged fraud on the part of Vacation Store, and has not since been renewed. Specifically, the June 16, 2009 submission claimed that after the 2006 litigation was commenced, the Complainant “broke any relation with the Respondent, [which] means that it has no rights to use my client's trademark, logo or even the name to get benefits with them.” That statement appears to acknowledge that before the claimed “breaking of the relations”, the Respondent did enjoy such rights.
Thirdly, the Complainant, in response to a question from the Panel as to when the Complainant had first become aware of the registration of the Domain Name, answered: “…more specifically Levantur was warned of the captioned registration on 17th March 2009. An email was sent by a sales manager who works for Bahia Principe in Paraguay”.
In the Panel's view, that response was simply not plausible. The evidence shows that, from at least as early as April 2005, the Complainant was planning the opening of “Bahia Principe Jamaica” hotel in the summer of 2006. At least two-thirds of the hotels operated by the Complainant have names which commence with the expression “Gran Bahia Principe”, and the Panel does not find it credible that the Complainant did not, at a fairly early stage, turn its mind to the possibility that the hotel might be named “Gran Bahia Principe Jamaica”. Indeed, the archived pages from the Respondent's website show that the Complainant had settled on the name “Gran Bahia Principe Jamaica” at some time before the winter of 2006. The establishment of a new resort hotel is no doubt a major undertaking, and the marketing of such a venture must have been given a great deal of attention. In that context the Internet (and in particular the existence or otherwise of any Gran Bahia Principe Jamaica domain name) would have been of particular interest to the Complainant. Considered from that perspective, the claim that the Complainant did not find out about the June 2005 registration of the Domain Name until March of 2009 is just not credible.
Having regard to the foregoing, the Panel prefers the evidence which was (eventually) put forward by the Respondent, to the effect that for some time in late 2005 or early 2006 there existed an agreement or understanding between the Complainant and Vacation Store under which the latter company would promote the Complainant's properties, including by the use of the Respondent's website. That agreement or understanding was sufficient to confer on the Respondent a right or legitimate interest in respect of the Domain Name.
As in the Lonely Planet Publications case, the critical question is whether that license or consent to use the Domain Name was lawfully revoked at some time before the Complainant commenced this proceeding.
The Panel specifically asked the Complainant about the nature of any business relationship it had had with the Respondent, and when any such relationship may have been terminated. In response, the Complainant referred to two December 2005 contracts relating to the provision of accommodation services at two of the Complainant's hotels, and to the separate agreement relating to the arranging of air charter services between Miami and the Complainant's Caribbean resorts. The contracts for accommodation services were said to have been for one year terms, which were not renewed. The contract for the provision of air charter services was said to have been cancelled by the Complainant's legal representatives by letter dated April 27, 2006.
Cancellation of the air charter services agreement would not necessarily have effected a cancellation of the Respondent's ongoing right to use the Domain Name, and the information provided by the Complainant relating to accommodation service contracts was clearly incomplete – for example, the July 2004 contract relating to the Complainant's Punta Cana hotel, which the Respondent produced, was not mentioned by the Complainant. Nor did the Complainant deny the Respondent's claim that it was specifically allowed to access one of the Complainant's websites and download the Complainant's mark (and other signs) for use on Vacation Store's websites. There is nothing before the Panel to show that that arrangement has ever been terminated.
An additional matter which causes the Panel to doubt that the Respondent's right to use the Domain Name has been terminated, is the Complainant's failure to include the Domain Name in the administrative proceeding which the Complainant issued against the Respondent in 2008. The Complainant's explanation is that it did not know of the registration of the Domain Name until March 2009, but the Panel has found that that explanation lacks credibility. The omission of the Domain Name from the claims in the 2008 proceeding might conceivably have been the result of oversight (for example, no-one within the Complainant organization paying much attention to the Respondent's website and what was actually on it). Such a lack of attention might also perhaps explain the puzzling fact that links to websites of the Complainant's competitors appear to have been allowed to remain on the Respondent's website until at least January 2007. But the omission to deal with the Domain Name in 2008, when the Complainant was clearly focused on the issue of confusingly similar domain names, is at very least another factor which calls into question the Complainant's assertion that any relevant rights the Respondent may have had in the Domain Name had by then been terminated.
In the end, the Panel has come to the view that the evidence, looked at overall, does not clearly establish that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent has advanced a plausible case that it acquired a right or legitimate interest at some time soon after it registered the Domain Name, and the available evidence is not sufficiently clear for the Panel to safely conclude that the particular agreement or understanding which gave rise to that right or legitimate interest has been validly terminated. Proof that contracts for specific accommodation services were only in place for limited periods, and that the air charter contract was cancelled, does not prove that an entitlement to use the Domain Name in the context of a broader agreement or understanding that the Respondent would use the Domain Name and the Respondent's website to promote the Complainant's hotels (for the mutual benefit of the parties) has been validly revoked. Even if the Complainant intended in 2006 that the Respondent should no longer have any right to use the Domain Name (or the Complainant's mark or other copyright materials), its apparent inaction may still give rise to difficult issues of waiver or acquiescence. Such issues are best left to a court to address. They are well beyond the scope of a summary administrative proceeding under the Policy, which is intended to apply only to clear cases of cybersquatting or other abusive domain name registration.
Accordingly, the Panel finds that, on the record in the present proceedings, the Complainant has failed to prove that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complaint must therefore be denied.
Having regard to the Panel's findings in section 6C of this decision, there is no need for the Panel to make any findings on this part of the Complaint.
Although the Complaint has failed, this is not a case where it would be appropriate for the Panel to declare that the Complainant has brought the proceeding in bad faith. Although the Panel has some concern that the Complainant did not put all its cards on the table as soon as it should have, that criticism can equally be directed at the Respondent. And on the merits, the Complainant has succeeded in proving that the Domain Name is confusingly similar to the Complainant's mark, and that the Domain Name was likely registered in bad faith. The Complaint has failed only because the Complainant has failed to adequately address the Respondent's claims that, post-registration of the Domain Name, the Complainant knew what the Respondent was doing with the Domain Name and agreed to it (or at least acquiesced in it). The Complainant may have an answer to those claims, but if so the answer was not given in this proceeding.
A complainant's motive for bringing a complaint under the Policy is irrelevant if the complaint succeeds – either the complainant can establish the three elements it is required to prove under Paragraph 4(a) of the Policy or it cannot. If it can, a panel does not need to be concerned with the question of why the claim was brought. The Complaint in this case has failed, but a court might yet decide that the Complainant is entitled to an order for the transfer of the Domain Name. It is just that in a summary administrative proceeding such as this the merits have not been sufficiently clear for the Panel to make that determination.

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The Local Rules for the United States Bankruptcy Appellate Panel of the Tenth Circuit (BAP) were recently updated by the Panel’s Local Rules of Practice Committee.
The 8000 series of the Federal Rules of Bankruptcy Procedure have also been incorporated into the amended Local Rules. The full Rules are available here.
Click here to view a quick guide to the Rules changes.
The changes went into effect May 1, 2010.
The Colorado Supreme Court this month approved an addition to Colorado Rules of Criminal Procedure (Crim.P.) 43, “Presence of the Defendant,” effective immediately.
Rule Change 2010(12) details the amendment to Crim.P. 43, which now includes a new subsection (e) that specifies the requirements and types of hearings at which defendants may appear via two-way audiovisual (AV) transmission.
Crim.P. 43(e) was approved, en banc, by the Colorado Supreme Court on June 17 and became effective immediately.
State Judicial announced this morning the January 2011 retirement of Jefferson County Court Judge Charles T. Hoppin and a request for applications for individuals interested in succeeding him on the bench.
The First District Judicial Nominating Committee will convene on Monday, August 16, to review applications and recommend nominees to fill the vacancy. The meeting will be held in the training room of the Jefferson County Courthouse, 100 Jefferson County Parkway, in Golden. Following the interviews, the Commission will recommend finalists for Gov. Bill Ritter to consider for appointment, and the governor will announce his appointee within 15 days.
Judges in the Jefferson County Court preside over traffic, misdemeanor, and civil cases, as well as process felonies through preliminary hearing proceedings. County court judges receive a provisional, two-year appointment by the governor, after which they are retained by voter approval every four years. The annual salary is $123,067. Judge Hoppin’s successor will begin his or her term in January 2011.
All attorneys licensed to practice in Colorado and who are registered electors in Jefferson County are eligible to apply for the judgeship. Detailed information about the Jefferson County Court and the application are available online. Application packages (consisting of one original application plus seven copies) must be received by the office of Commission ex officio chair, Justice Nathan B. Coats, 101 W. Colfax Ave., Eighth Floor, no later than Wednesday, August 4 at 3:00 p.m.
Judge Hoppin has served as Jefferson County Court judge since May 1996. From 1972 to 1996, he was in private practice, specializing in domestic relations and criminal defense cases. He was a Deputy District Attorney from 1969 to 1972.
The U.S.Department of Labor has clarified the definition of “son and daughter” for purposes of interpreting the Family and Medical Leave Act (FMLA). Neither a legal nor biological relationship is required under the FMLA to demonstrate “parental rights” for a person to take work leave to care for a child.
The FMLA grants workers up to 12 weeks of unpaid leave during a 12-month period to care for themselves or a “loved one,” now expanded to include members of non-traditional families.
No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill. No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT [lesbian, gay, bisexual, and transgender] families, are protected by the FMLA.
Two changes to the Colorado Rules of Civil Procedure (C.R.C.P) were approved recently by the Colorado Supreme Court.
The first change, Rule Change 2010(7) (pdf), amends C.R.C.P. 10(i), “Form and Quality of Pleadings, Motions and Other Documents,” to update the formatting specifications for certain State Judicial forms. This amendment was approved by the court, en banc, on April 5, 2010, and went into effect immediately.
The second change, Rule Change 2010(10) (pdf), amends C.R.C.P. 47(a)(5) and (u), “Jurors,” adding language that limits the circumstances under which an impaneled jury may discuss a case, the evidence presented at trial, and the case’s potential outcome. The language also grants the trial court the discretion to limit “pre-deliberation discussions of the evidence” based on a showing of “good cause.” This amendment was approved by the court, en banc, on June 7, 2010, and went into effect immediately.
The response to the ruling has varied greatly. The Center for Constitutional Rights attorney David Cole suggests that the “Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime.” Alex Newman suggests that former president Jimmy Carter “could now be prosecuted for his work,” with the Carter Center, a humanitarian organization which operates to aid in international conflict resolution; Cole believes that “under this ruling, President Jimmy Carter, in monitoring an election in Lebanon, would be providing ‘material support’ to Hezbollah.” Renee Newman Knake posits that the case could even have implications for attorney advice to clients who may be members of designated terrorist organizations.
Others, however, have lauded the Supreme Court’s decision. Andrew C. McCarthy suggests that the decision is common sense; “teaching terrorists how to manipulate the international legal system makes them more efficient, and more deadly.” The good intentions of “transnational progressives” operating under the auspices of humanitarian law have monumental unintended consequences. The Court, he argues, rightfully deferred to the government’s competence and interest in combating terrorism.
While there is certainly no consensus as to the whether the Supreme Court concluded correctly, the Court’s decision brings to an end a controversy that has lasted over a decade and could have lasting implications.
The Colorado Court of Appeals issued its opinion in United Fire Group v. Powers Electric, Inc. on June 25, 2010.
Summary Judgment—Statute of Limitations—Construction Defect Action Reform Act.
Plaintiff United Fire Group (insurer) appealed the trial court’s summary judgment in favor of defendants Powers Electric, Inc. and Gary J. Powers (collectively, electrician). The judgment was affirmed.
On March 6, 2006, a fire damaged property owned by Metamorphosis Salon (salon). Neither the salon nor its insurer knew what caused the fire. Three weeks later, a fire investigator gave the insurer a report stating that the cause was faulty wiring in an electrical exit sign. The electrician had installed the sign.
Insurer made a series of payments to the salon to compensate for its losses. On March 11, 2008, insurer filed a subrogation claim against the electrician, alleging negligent installation of the exit sign that caused the fire. The electrician moved for summary judgment, alleging that the case was barred by the statute of limitations and that the time began to run on the date of the fire. Insurer replied that the statute began to run either on the date insurer received the investigator’s report or the date the salon cashed the insurance payments. The trial court granted the electrician’s motion for summary judgment. Insurer appealed.
This is a construction defect case brought under the Construction Defect Action Reform Act. The parties agreed such cases are governed by a two-year statute of limitations. They also agreed that the two-year period begins to run when a claimant “discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect in the improvement which ultimately causes the injury.” They also agreed that the improvement in this case was the electrician’s installation of the exit sign.
Insurer argued it could not determine the cause of the fire until the investigator provided his report and, therefore, could not have discovered in the exercise of reasonable diligence the physical manifestation of the defect in the exit sign installation. The electrician countered that the fire was the physical manifestation of the defect; thus, insurer could have discovered in the exercise of reasonable diligence that there had been a fire on the day it occurred. The Court of Appeals agreed with the electrician and affirmed the summary judgment.
The Court also rejected the insurer’s argument that, as a subrogee, it did not suffer any injury until the salon cashed the insurance payments. The Court held that case law is clear that the insurer stands in the shoes of its insured and has no greater rights than the insured.
This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.
The Colorado Court of Appeals issued its opinion in Romantix, Inc. v. City of Commerce City on June 25, 2010.
Summary Judgment—Sales and Use Tax.
The City of Commerce City (City) appealed the district court’s summary judgment in favor of plaintiff Romantix, Inc. (Romantix). The judgment was reversed.
Romantix operates an adult video arcade in the City. Customers are given the opportunity to view various films. They can purchase prepaid cards that enable them to activate a “film preview” or an “arcade” feature in a private room on the premises using equipment furnished by Romantix.
In the film preview option, the customer chooses a film to watch inside a private room. The customer can fast-forward, adjust sound, and start and stop the viewing. The charge is based on the size of the room. In the arcade option, the customer may view any of approximately fifty film channels. Charges are $5 for the first twenty minutes and 25 cents for each additional minute. The customer can switch channels, fast-forward, adjust sound, and start and stop the viewing.
Romantix collected City sales tax from its customers based on the price the customer paid for the prepaid cards for tax years 2005, 2006, and 2007. It later sought a refund. Following a hearing, the City’s hearing officer determined no refund was owed. Romantix appealed to the district court under CRS § 29-2-106.1(8)(a). The court granted summary judgment to Romantix.
On appeal, the City argued that the transactions are taxable for several reasons. The Court of Appeals agreed, holding that the transactions constitute a grant of a license to use tangible personal property and therefore are taxable under CRS § 20-4-1 of the City’s Sales and Use Tax Code (Code). The film-viewing equipment falls under the Code’s definition of “tangible personal property,” and the viewing falls under the Code’s definition of “use.” Further, customers effectively acquire a license to exercise a degree of control over the equipment to customize their viewing experience. Accordingly, the judgment was reversed and the case was remanded to the district court with directions to grant the City’s cross-motion for summary judgment.
The Colorado Court of Appeals issued its opinion in Grand Valley Citizens’ Alliance v. Colorado Oil and Gas Conservation Commission on June 25, 2010.
Standing—Entitlement to an Administrative Hearing.
Plaintiffs appealed a district court order dismissing their claim for a hearing before the Colorado Oil and Gas Conservation Commission (Commission). The order was reversed.
Plaintiffs are two organizations and four individuals. They collectively own, reside on, and use land in Garfield County, near Rulison. This area was the site of a 1969 federal agency experiment dubbed Project Rulison. The project involved detonation of a large nuclear device 8,400 feet below ground to determine whether the explosion could stimulate natural gas production. Nothing marketable was produced; however, the liberated gas contained radioactive matter, and subsurface toxic and radioactive contaminants are still present.
In the late 1990s, companies began seeking to drill in the area. In 2004, the Commission ruled that a hearing would be required for any permit application involving drilling within a half mile of the blast site. In 2008, EnCana Oil & Gas (EnCana) applied for permits to drill wells less than three miles from the blast site. Because the proposed wells were beyond the half-mile radius, a hearing was not automatic. Plaintiffs petitioned the Commission for intervention and a hearing on EnCana’s applications. The Commission Director denied the hearing requests and approved the permit applications. Plaintiffs sued, alleging they were statutorily entitled to a hearing. The district court granted EnCana’s motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. The Court of Appeals reversed, holding plaintiffs had standing and are entitled to a hearing.
Colorado has a relatively lenient standing test: (1) the plaintiff must have suffered an injury-in-fact; and (2) this harm must have been to a legally protected interest. The Court held that the denial of plaintiffs’ claimed statutory right to a hearing to contest the permit application was a cognizable injury (procedural in nature). In addition, the allegation that the proposed drilling would threaten substantive injury to land they owned, resided on, and used, also conferred standing (substantive in nature).
Plaintiffs’ claimed right to a hearing is provided in CRS § 34-60-108(7), which mandates a hearing on the filing of a petition requesting one concerning any matter within the jurisdiction of the Commission. The Court held this language clearly entitled plaintiffs’ to a hearing.
The Colorado Court of Appeals issued its opinion in Crossgrove v. Wal-Mart Stores, Inc. on June 25, 2010.
In this personal injury case, plaintiff appealed the judgment for damages entered on a jury verdict against defendant Wal-Mart Stores, Inc. (Wal-Mart). The judgment was vacated in part and the case was remanded.
Plaintiff was struck on the head by a manually operated overhead garage door while delivering cookies to a Wal-Mart store. Based on a negligence theory, he sued Wal-Mart for injuries, claiming in pertinent part more than $240,000 in billed medical expenses. The trial court allowed Wal-Mart to present evidence to the jury that plaintiff’s medical providers accepted $40,000 in full satisfaction of his medical bills. Plaintiff also testified to the full amount ($242,293.86) billed by his providers, as well as his loss of income ($101,520). The jury returned a verdict for plaintiff, awarding him a total of $50,000 for economic losses and an additional $27,375 in noneconomic damages. The jury also determined plaintiff was 20 percent at fault. The court thereafter reduced the award by the 20 percent, plus the $40,000 paid by third parties.
On appeal, Wal-Mart contended that the collateral source rule is not implicated by presentation of the discounted amount paid in satisfaction of plaintiff’s medical bills, as long as the source of payment is unidentified. Colorado’s common law collateral source rule is not limited to protecting the cash amounts paid to providers for services rendered. Evidence of the amount paid by third-party payors and, conversely, the amount discounted (or written off) from the billed amount due under a contract between the third-party payor and the provider, is inadmissible under the common law collateral source rule even to show the reasonable value of services rendered, because these payments and discounts constitute collateral sources. Further, the collateral source statute does not abrogate the common law rule prohibiting evidence of collateral sources at trial as it applies only after the verdict is received from the fact finder. Therefore, the trial court erroneously admitted collateral source evidence. The judgment was vacated as to the amount of damages, and the case was remanded for a new trial on the issue of damages, after which the trial court shall adjust the verdict in accordance with the collateral source statute.


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JOAN K. HENRY vs. MANSFIELD BEAUTY ACADEMY, INC.
TORT AND CONTRACT. Writ in the Superior Court dated February 22, 1965.
Following transfer to the Municipal Court of the City of Boston and retransfer to the Superior Court, the action was heard by Tomasello, J.
John A. Gledhill, Jr., for the defendant.
Alan H. Robbins for the plaintiff.
WILKINS, C.J. The plaintiff was injured on November 30, 1964, while a patron of the defendant's hairdressing school, and by writ returnable in April, 1965, brought this action in the Superior Court, Suffolk County. There are three counts, two in contract for breach of contract and breach of warranty respectively, and one in tort for negligence. The ad damnum, by amendment, is $2,000. On November 18, 1965, the case was transferred to the Municipal Court of the City of Boston where on January 18, 1966, a judge found for the plaintiff in the amount of $1,500 on all counts. The case was reported to the Appellate Division, which dismissed the report. On retransfer to the Superior Court there was a trial on April 27, 1967, which resulted in a finding of $1,500 on all counts by a judge sitting without jury. The procedure was in accordance with G. L. c. 231, Section 102C, as amended through St. 1962, c. 305. Lubell v. First Natl. Stores, Inc. 342 Mass. 161 . Newgent v. Colonial Contractors & Builders, Inc. 348 Mass. 582 . See S. Albertson Co. Inc. v. Great No. Ry. 342 Mass. 326 .
Division correctly ruled that there was no reversible error, its opinion must be reviewed by the judge in the Superior Court. To permit an intelligible review, the record of the trial must be available, not as evidence but as background to enable him to rule on the admissibility of "the decision or finding."
On November 30, 1964, the plaintiff was at the hairdressing school, and paid $4 in advance for a permanent wave. On ten previous occasions she had received similar treatments from the defendant without ill effects. On this occasion, before work was commenced, the plaintiff signed the following document (Exhibit 2): "Hair and beauty culture school release. In consideration of a nominal charge by Mansfield Beauty Academy, Inc., operating the Mansfield Academy of Hair and Beauty Culture for the work performed in its clinical beauty department of the said school or academy, I hereby release and absolve the said company from any and all said claims or liability arising or which may arise from any negligent or careless operation on the part of the operators in the clinical department of this school or from negligence or careless operation of any of the students, teachers, instructors, supervisors or any other employee of the said school, or from any lack of skill on their part, it having been first represented to be exclusively a school of hair and beauty culture and that the operator or students are either students in or graduate students of the beauty school conducted by the Mansfield Beauty Academy, Inc."
soaked with waiving solution lest it cause irritation. Another was, "Don't wipe or rub any waving lotion which may have dripped on forehead, face or neck."
During the treatment, certain areas of the plaintiff's neck became an "angry red" color. The following day blisters appeared about her face and neck and she had to seek medical attention.
The Municipal Court judge found the defendant to have been negligent in that it violated some of the prohibitions in Exhibit 1 in the specific "don'ts" and violated paragraph 4 (e) in allowing the neutralizer to remain ten minutes on the curls instead of the specified five minutes. It may well be considered doubtful as a matter of construction whether there was a prohibition against allowing the neutralizer to remain longer than five minutes or merely a statement of a minimum number of minutes to achieve effective treatment.
defendant from liability to her for injuries resulting from its negligence or that of its employees. Barrett v. Conragan, 302 Mass. 33 , 34. Lee v. Allied Sports Associates, Inc. 349 Mass. 544 , 550. [Note p511-1] But such a contract cannot serve to shield the defendant from responsibility for violation of a statutory duty. Here the findings and the ruling as to Section 87U by the Municipal Court judge take away the protection of the contract. McCarthy v. National Assn. for Stock Car Auto Racing, Inc. 48 N. J. 539, 543. See Boyd v. Smith, 372 Pa. 306, 309-310. See also Weirick v. Hamm Realty Co. 179 Minn. 25, 28-29; Williston, Contracts (2d ed.), Section 1751, pp. 4962-4963. Accordingly, the question becomes a simple one of negligence. Of this there was ample proof (Gavin v. Kluge, 275 Mass. 372 ). The "decision or finding" of the Municipal Court judge was admissible as prima facie evidence at the trial in the Superior Court upon retransfer. G. L. c. 231, Section 102C.
[Note p510-1] "All students enrolled in registered schools shall, within fifteen days after entering upon their courses of study, be registered with the board by such schools. Students at registered schools may, within such fifteen day period, register with the board. No fee shall be required for such registration. No student shall practice hairdressing or manicuring upon any paying customer, and no school shall directly or indirectly make any charge for services in connection with such practice of hairdressing or manicuring. A school shall not pay a student for any services rendered by him." See Mansfield Beauty Academy, Inc. v. Board of Registration of Hairdressers, 326 Mass. 624 .
[Note p510-2] We have not been asked to rule on the effect of the fourth sentence in Section 87U.
[Note p511-1] We do not agree with the ruling of the Municipal Court judge that the release "is void and of no effect as being against public policy, in conformity to the trend of the law as . . . [expressed] by G. L. c. 186, Section 15, declaring void a provision releasing the negligence of a lessor by the lessee."

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Any statutes the public may find useful in interacting with the public body.
The constitutional provisions, statutes, and rules listed below may affect the Oklahoma Corporation Commission (OCC) or may help the public interact with the Commission. If you believe other constitutional provision, statutes, or rules should be included, please report these laws to OCC's Office of General Counsel.
If you want to search the law by keyword, please see a free legal research site.
§ 1. Supreme law of land.
Since the following constitutional provisions were drafted, the federal government - acting through Congress and the U.S. Supreme Court - has limited the states' powers in various fields addressed in this article. Consideration of federal law may be important to issues dealt with in this article.
§1. Political power - Purpose of government - Alteration or reformation.
§3. Right of Assembly and Petition.
§5. Public money or property - Use for sectarian purposes.
§6. Courts of Justice open - Remedies for wrongs - Sale, denial or delay.
§7. Due process of law.
§9. Excessive bail or fines - Cruel or unusual punishment.
§11. Officers - Personal attention to duties - Intoxication.
§12. Officers of United States or other states - Ineligibility to office.
§15. Bills of attainder - Ex post facto laws - Obligation of contracts - Forfeitures.
§23. Private property - Taking or damaging for private use.
§24. Private property - Public use - Character of use a judicial question.
§28. Corporate records, books and files.
§32. Perpetuities - Monopolies - Primogeniture - Entailments.
§ 1. Departments of government - Separation and distinction.
§54. Repeal of statute - Effect.
§55. Appropriations - Necessity and requisites.
§56. General appropriation bills - Salaries - Separate appropriation bills.
§57. Subjects and titles - Revival or amendment by reference - Extent of invalidity.
§58. Time of taking effect of statutes - Emergency measures.
§59. Uniform operation of general laws - Special laws when general law applicable.
§60. System of checks and balances.
§63. Continuity of governmental operations in periods of emergency.
§ 1. Executive officers enumerated - Offices and records - Duties.
§ 1. Courts in which judicial power vested.
§ 1. Officers subject to impeachment - Grounds - Suspension from office upon felony conviction - Reinstatement - Temporary judges.
§ 2. Removal of officers not subject to impeachment.
§ 3. Presiding officer in case of impeachment - Presentation of impeachment.
§ 4. Oath or affirmation - Number concurring.
§ 5. Judgment of impeachment.
§ 6. Necessary laws to be passed.
Since some of the following constitutional provisions were drafted, the federal government has preempted many of the states' regulatory powers in various fields. Consideration of federal law may be important to any question involving an issue raised by this article.
§ 2. Rights as to construction of lines.
§ 3. Receipt of cars, tonnage and passengers from other lines.
*§ 4. Oil pipe line companies - Regulation - Duties.
§ 5. Telegraph and telephone companies - Transmission of messages - Physical connections to lines.
*§ 6. Railroads as public highways - Offices - Meetings - Reports - Enforcement.
§ 7. Moveable property as personal property - Liability of property to execution.
*§ 8. Consolidation of public service corporations - Common officer.
*§ 9. Sales and leases - Additional restrictions on consolidation.
§ 10. Street Railroads - Consent to construction and operation.
§ 11. Acceptance of provisions of Constitution.
§ 12. Transportation of railroad's own commodities.
§ 13. Free transportation of passengers.
*§ 15. Creation - Terms of office - Vacancies.
*§ 16. Qualifications of commissioners.
*§ 17. Oath of office - Additional oath.
*§ 18. Powers and duties - Notice before taking action - Process for witnesses - Authority of Legislature - Municipal powers.
*§ 18a. Organization - Quorum - Necessary vote.
*§ 19. Powers of court of record - Additional powers - Failure or refusal to obey orders.
*§ 20. Appeals to Supreme Court - Other courts to have no jurisdiction - Mandamus and prohibition.
*§ 21. Supersedeas - Security - Accounts - Refunds - Precedence of appeals.
*§ 22. Statement of reasons for action- Cause heard on record - Certification of facts and evidence - New or additional evidence.
*§ 24. Rights of action not affected - Questioning action of Commission.
*§ 25. Reports and recommendations.
*§ 26. Railway depots and depot buildings.
*§ 27. Railroad crossings at grade.
*§ 28. Inspection of books and papers - Examination of officers and agents.
*§ 29. Record of financial transactions.
*§ 30. Greater charge for less distance.
*§ 31. Foreign corporations - Eminent domain - Restrictions on exercise.
*§ 32. Through rates - Investigation - Notice - Application to Interstate Commerce Commission.
*§ 33. Switches to mines, mills, elevators and industries.
§ 34. Definitions - Avoidance of conflicts with U.S. Constitution.
§ 35. Power of Legislature.
§ 36. Common law doctrine abrogated - Liability for acts of receivers - Power of Legislature.
§ 15. Pledge or loan of credit.
§ 19. Specification of purpose of tax - Devotion to another purpose.
§ 23. Balanced budget - Procedures.
§ 27. Indebtedness for purchase, construction or repair of public utilities.
§ 27A. Municipal water and water facilities - Financing.
*§ 27B. Political subdivisions - Public utilities financing - Indebtedness.
§ 29. Bonds and evidence of indebtedness - Certificates as to compliance with law.
§ 30. System of accounting.
§ 1. Officers required to take oath or affirmation - Form.
§ 2. Administration and filing of oath - Refusal to take - False swearing.
§ 5(a). Grant, extension or renewal - Approval by voters - Term.
§ 5(b). Petition - Calling election - Result of election.
§ 7. Control and regulation not divested - Surrender of powers - Exclusive franchises.
§ 2. Kerosene oil - Flash test - Specific gravity test.
§ 1. Hours of labor on public work.
§ 1A. Participation in labor organization as condition of employment prohibited.
§ 10. Change of salary during term.
§ 4. Investigation - Decision - Subpoena Power.
*§ 15. Compensation of certain state officers.
Since the following statutes were drafted, the federal government has preempted many of the states' regulatory powers regarding common carriers and has largely deregulated the field. Consideration of federal law may be important to any question regarding common carriers.
Since the following state statutes were drafted, the U.S. Congress has enacted statutes affecting various regulated fields and the U.S. Supreme Court has decided cases affecting the same. Consideration of federal law may be important to any question regarding the subject matter of this title.
§ 438.24 - Power of Board of Trustees to Authorize Execution of Mortgages, Deeds, etc.
§ 464 - Forgery of Name on Court Documents, etc.
§ 484 - Prohibition on Relatives Holding Office, Clerkship, etc.
§ 1786 - Digging Up or Obstructing Pipes, Wires, etc.
The entire Election Code affects elections for Oklahoma Corporation Commissioners. The index to the full code is here: http://www.oscn.net/applications/oscn/Index.asp?ftdb=STOKST26≤vel=1 Those portions of the Election Code specifically addressing the Corporation Commission are listed below.
*§ 1124.2 - "Hunter's Permits"
§ 19 - Successor to Receive Records, etc.
§ 249 - Definition of "Premises"
§ 317 - Definition of "Person"
Since the following state statutes were enacted, the courts have limited the states' powers in various fields addressed in this title. Consideration of state and federal case law may be important to issues dealt with in this title.
Since the following statutes were enacted, Congress and the courts have limited the states' powers in various fields addressed in this title. Consideration of other state and federal law may be important to issues dealt with in this title.
§ 840-1.4 - Merit System Office and State Personnel Board Abolished - Transfer of Functions, Powers, Duties, etc.
Standard 257:23-1-2 - Anything of Value Reporting by Lobbyists - Preservation of Accounts, Books, etc.
*§ 1501-205.1 - State Geographic Information Council - Members - Terms - Quorum - Meetings, etc.


text:
Adams v. Merced Stone Co.
A/S Apothekernes Laboratorium For SpecialPraeparater v. I.M.C. Chemical Group, Inc.
Bak-a-lum Corp. of America v. ALCOA Bldg. Prods., Inc.
Bloor v. Falstaff Brewing Corp.
Brinderson-Newberg Joint Venture v. Pacific Erectors, Inc.
Brown v. AVEMCO Investment Corp.
Burger King Corp. v. Family Dining, Inc.
Burne v. Franklin Life Insurance Co.
City of Rye v. Public Serv. Mut. Ins. Co.
Cloud Corp. v. Hasbro Inc.
Corenswet, Inc. v. Amana Refrigeration, Inc.
Dyer v. National By-Products Inc.
Fry v. George Elkins Co.
Garwood Packaging, Inc. v. Allen & Company, Inc.
Gianni v. R. Russell & Co.
Gill v. Johnstown Lumber Co.
Gruenberg v. Aetna Insurance Co.
Houston Dairy, Inc. v. John Hancock Mutual Life Insurance Co.
Ionics, Inc. v. Elmwood Sensors, Inc.
Itek Corp. v. Chicago Aerial Indus., Inc.
J.J. Brooksbank Co. v. Budget Rent-a-Car Corp.
Orange and Rockland Utilities, Inc. v. Amerada Hess Corp.
Pittsburgh-Des Moines Steel Co. v. Brookhaven Manor Water Co.
Plotnick v. Pennsylvania Smelting & Refining Co.
Power Paragon, Inc. v. Precision Technology USA, Inc.
SCI Minnesota Funeral Services, Inc. v. Washburn-McReavy Funeral Corp.
Security Stove & Mfg. Co. v. American Railway Express Co.
Southern California Acoustics Co., Inc. v. C.V. Holder, Inc.
The Cretex Companies, Inc. v. Construction Leaders, Inc.
United States v. Seacoast Gas Co.
Vitex Manufacturing Corp. v. Caribtex Corp.
Walters v. Marathon Oil Co.

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