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Reversed and Remanded and Opinion filed June 10, 2014.
This is an appeal from a judgment after a nonjury trial. The lawsuit began as a dispute about a buyer's purchase of leased property and ended as a claim for breach of a settlement agreement. The settlement agreement provided that as consideration for the parties' release of their claims, the sellers would sell the property to the buyer at a reduced rate. After the buyer refused to complete the sale, each side alleged that the other breached the settlement agreement. The trial court found that the buyer breached the agreement, and enforced the release while refusing to enforce the property sale. We reverse and remand the case for the trial court to determine whether the sellers elected to treat the settlement agreement as continuing or as terminated.
If the settlement agreement is continuing, the seller must sell the property to the buyer; if the agreement is terminated, the parties revert back to their original positions in the lawsuit.
Appellees Jacquelyn and Everett Churchill own a residence in Houston in which they operated an assisted-living facility through their company, appellee JED, Inc. (collectively, "the Sellers"). In December 2009, they entered into a lease agreement with option to purchase ("the Option Contract") with appellant Advanced Personal Care, LLC ("the Buyer"). The parties agreed that if the Buyer exercised the option, then it could purchase the residence and the operations (collectively, "the Property") for $200,000.
During the tenancy, the parties' relationship became strained. The Buyer exercised the option to purchase, but the Sellers served the Buyer with a notice to vacate the premises, so the Buyer sued for damages and injunctive relief, and the Sellers asserted counter-claims. The parties agreed that while the case was pending, payments that would be due under the Option Contract would be paid into the registry of the court.
The parties next agreed to settle their dispute. As part of the consideration for releasing their claims against one another, the Sellers would sell the Property to the Buyer for $170,000. The Sellers were responsible to have all documents prepared for transferring the Property, and the Buyer was to receive all funds that were deposited in the court's registry in connection with this case. To effectuate the settlement, the parties executed two documents with the same effective date: a "Full and Final Mutual Compromise and Release" ("the Release") and a "Real Estate Sales Contract" ("the Sales Contract"). The Sales Contract contained language identifying the parties' sole and exclusive remedies for a default before closing. If one side defaulted before closing, the other side was permitted to terminate the Release and the Sales Contract and the parties would resume their litigation against one another. If the non-defaulting party already had incurred out-of-pocket expenses to document the transactions, then that party also could recover those expenses and attorney's fees. If the Sellers defaulted, the Buyer had the additional option to enforce specific performance of the sale.
The Buyer asserted that the Sellers breached the Sales Contract and refused to proceed with the sale. Both sides then amended their pleadings. The Sellers alleged that the Buyer breached the agreement, and Buyer asserted that it properly terminated the agreement due to the Sellers' default.
The Sellers also added a third-party claim against the Buyer's owner, but judgment was not rendered against him and he has not appealed.
The parties agreed to bifurcated proceedings in which they would first try their respective claims for breach of the Sales Contract without a jury. If the trial court concluded that the Buyer properly terminated the contract so that the Release was no longer binding, then the parties would try their claims under the Option Contract before a jury. The day after the first phase of the trial, the trial court issued findings of fact and conclusions of law in which it held that (a) only the Buyer materially breached the Release and the Sales Contract, (b) the Buyer had released its claims against the Sellers, and (c) it was unnecessary to proceed with the second phase of trial. After the parties filed opposing motions for release of the registry funds, the trial court signed two orders releasing money to each side. In the final judgment, the trial court ruled that the Buyer was to take nothing on its claims against the Sellers, and awarded the Sellers nearly $39,000 in attorney's fees, but no other relief. The Buyer appealed, but the Sellers did not file a responsive brief.
The two orders contain different amounts, but neither is identified as an amended order.
In its dispositive issue, the Buyer argues that the trial court erred as a matter of law in failing to order specific performance of the Sales Contract because (a) the Release and the Sales Contract are part of a single Settlement Agreement; (b) upon the Buyer's material breach of that agreement, the Sellers were required to elect whether to terminate the entire agreement or to treat the entire agreement as continuing; and (c) because the Sellers chose to enforce the Release portion of the Settlement Agreement, they elected to treat the entire agreement as continuing, thereby waiving the Buyer's breach as an excuse for their own nonperformance of the Sales Contract. We agree with the first two points. We agree that there are not two independent contracts; there is one Settlement Agreement. We further agree that under the common-law principle of election of remedies, the Sellers were required to elect whether to treat the Settlement Agreement as continuing or as terminated.
We do not agree with the third point, that the record conclusively establishes that the Seller elected to treat the agreement as continuing. Instead, the record shows that the trial court based its ruling solely on language in the Sales Contract that if the Sellers breached the contract, the Buyer could elect to enforce the sale or to terminate "both" the Release and the Sales Contract. Because the trial court found that the Buyer, not the Sellers, breached the Sales Contract, it held that the Buyer could neither terminate the Release nor enforce the sale. We cannot make the missing finding concerning the Sellers' election, because on this record, we cannot say that it has been conclusively established that the Sellers elected to treat the Settlement Agreement as continuing or as terminated. We instead reverse and remand without reaching the Buyer's remaining issues.
A. The effective dates, common purpose, and terms of the Release and the Sales Contract establish that they form a single, indivisible Settlement Agreement.
The law of contracts applies to settlement agreements and releases. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997); Hernandez v. LaBella, No. 14-08-00327-CV, 2010 WL 431253, at *3 (Tex. App.—Houston [14th Dist.] Feb. 9, 2010, no pet.) (mem. op.). When we interpret a written contract, "our primary concern is to ascertain and give effect to the intent of the parties as expressed in the contract." In re Serv. Corp. Int'l, 355 S.W.3d 655, 661 (Tex. 2011) (orig. proceeding) (per curiam). To understand that intent, we examine the contract as a whole in light of the circumstances present when the contract was entered. Anglo-Dutch Petroleum Int'l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 451 (Tex. 2011). In this examination, "separate documents executed at the same time, for the same purpose, and in the course of the same transaction are to be construed together." Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 327 (Tex. 1984); Nat'l City Bank of Ind. v. Ortiz, 401 S.W.3d 867, 884 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (op. on reh'g). In appropriate circumstances, "a court may determine, as a matter of law, that multiple documents comprise a single written contract" and "may construe all the documents as if they were part of a single, unified instrument." Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000). Where, as here, a contract is unambiguous, its construction is a question of law that we review de novo. Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011).
To increase readability, we have standardized capitalization and applied the same formatting to both documents.
(i) A Note will be executed by [the Buyer], payable to the [Sellers] in the amount of $170,000.00, financed at the rate of seven percent (7%) per annum amortized over twenty-five (25) years.
(v) The [Sellers] will arrange for the preparation of all documentation necessary to document the transfer of title and Note. . . .
D. Closing Date to be on or before October 31, 2011: The parties hereto will close on this transaction on or before October 31, 2011. The parties hereto recognize that time is of the essence as this matter is set for trial in December, 2011 and much discovery remains to be completed to ready this matter for trial.
Entire Agreement and Further Assurances.
this Settlement Agreement & Mutual Release contains the entire agreement between the parties . . . . [The Buyer] and the [Sellers] agree to execute any and all documents necessary to effectuate the understandings, assignments and agreement contained in [the "Consideration" section] above.
Seller's Disclosure at Time of Closing . . . Sellers have no personal knowledge as to the current condition of the Property other than the plumbing defects which have been the subject of litigation in Cause No. 2011-04324. Buyers have agreed to repair these defects using the funds which are currently being held in the Harris County Court Registry.
Buyer's Default; Remedies before Closing. If Buyer fails to perform any of its obligations under this contract ("Buyer's Default"), Seller may terminate this contract as well as the Full and Final Mutual Compromise and Release signed by the Sellers on October 6, 2011 [sic] by giving notice to Buyer on or before Closing. The parties will then be permitted to reopen discovery and proceed to trial in Cause No. 2011-04324 pending in Harris County, Texas. If Buyer's Default occurs after Seller has incurred costs to perform its obligations under this contract and Seller terminates this contract in accordance with the first sentence, Buyer will also pay to Seller as liquidated damages Seller's actual out-of-pocket expenses incurred to document the Settlement Agreement and transaction documents related hereto ("Buyer's [sic] Expenses"), within ten days after Buyer's receipt of an invoice from Seller stating the amount of Seller's Expenses accompanied by reasonable evidence of Seller's Expenses and attorney[']s fees. The foregoing constitutes Seller's sole and exclusive remedies for a default by Buyer before closing.
Entire Agreement. This contract, its exhibits, the Full and Final Mutual Compromise and Release signed by the Sellers on October 6, 2011 [sic] and any Closing Documents delivered at closing constitute the entire agreement of the parties concerning the sale of the Property by Seller to Buyer.
"As Is, Where Is" . . . The purchase price was bargained on the basis of an "as is, where is" transaction and reflects the agreement of the parties that there are no representations, disclosures, or express or implied warranties, except those in this contract, the Full and Final Mutual Compromise and Release signed October 6, 2011 [sic] and the closing documents.
Buyer is not relying on any representations, disclosures, or express or implied warranties other than those expressly contained in this contract, the Full and Final Mutual Compromise and Release signed October 6, 2011 [sic] and the Closing Documents.
Schedule of Debt . . . If the Seller fails to make timely payments to the lienholder, the lienholder may attempt to collect the debt by foreclosing on the lien and selling the Property at a foreclosure sale. Such failure by Seller constitutes a breach of this Sales Contract, the Full and Final Mutual Compromise and Release signed by the Sellers on October 6, 2011 [sic] and all closing documents.
Based on the foregoing, we conclude as a matter of law that the Release and the Sales Contract are two parts of a single Settlement Agreement. See McDowell v. Bier, No. 2-09-231-CV, 2010 WL 1427244, at *1, *4 (Tex. App.—Fort Worth Apr. 8, 2010, no pet.) (mem. op.) (holding that a release and a sales contract must be construed together because they were executed contemporaneously, they both concerned the release of the parties' claims against each other, and the release was conditioned on the sales contract); Giles v. Corbett, 293 S.W. 180, 182 (Tex. Civ. App.—Galveston 1927, no writ) (explaining that a check and a letter received in exchange for a release, "all being a part of the same transaction and having for their purpose to effect a compromise and settlement, . . . are 'in the eye of the law one instrument and will be read and construed together as if they were as much one in form as they are in substance'").
B. The Sellers were required to elect whether to treat the Settlement Agreement as continuing or as terminated.
Breach of contract can be waived. Ramex Constr. Co. v. Tamcon Servs. Inc., 29 S.W.3d 135, 137 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 888 (Tex. App.—San Antonio 1996, writ denied) (sub. op.)). The election of whether to waive the breach ordinarily is made when the breach occurs. See Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d 707, 709 (Tex. 1982). Thus, upon the Buyer's breach of the Settlement Agreement, the Sellers had a choice. If they were to treat the contract as terminated, then the breach would excuse them from any further performance. See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004) (per curiam). If the Sellers instead were to treat the contract as continuing, then they would waive the Buyer's breach as an excuse for their own failure to perform the Property sale. See, e.g., Long Trusts v. Griffin, 222 S.W.3d 412, 415-16 (Tex. 2006) (per curiam); Hanks, 644 S.W.2d at 708-09.
The Buyer placed the election-of-remedies problem before the trial court in its detailed answer to the Sellers' breach-of-contract counterclaim. The Buyer alleged that even if it breached the Settlement Agreement, the Sellers "made an election to enforce that agreement," and thus, they were required to perform their contractual obligations. The Buyer therefore argued that if the trial court enforced the Release, it also should release the funds in the court's registry to the Buyer and order the Sellers to transfer the Property to the Buyer upon the financing terms stated in the Settlement Agreement. However, the trial court failed to answer the fact question of whether the Sellers elected to treat the Settlement Agreement as terminated or as continuing. Cf. In re Gen. Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex. 2006) (orig. proceeding) (per curiam) (explaining that unless the surrounding facts and circumstances are undisputed, waiver usually is a question of fact).
C. The trial court erred in failing to address the question of the Sellers' election.
The trial court issued findings of fact and conclusions of law, but it did not find that the Sellers waived the Buyer's breach (or otherwise treated the contract as continuing) or that the Sellers were excused from further performance (or otherwise treated the contract as terminated). Although we will presume in some circumstances that the trial court made omitted findings in support of its judgment, the presumption does not apply where, as here, the record reveals that the trial court based its judgment on an erroneous interpretation of law, and failed to answer a factual question necessary to resolve the case under a correct interpretation. See Jones v. Smith, 291 S.W.3d 549, 553-555 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
The Buyer requested additional or amended findings two months later, but the Rules of Civil Procedure provide that such requests "shall be made within ten days after the filing of the original findings and conclusions by the court." TEX. R. CIV. P. 298.
See TEX. R. CIV. P. 299.
The circumstances here are analogous to those in Jones. In that case, a property owner sold his property, but the original deed conveying the property was lost or destroyed. Id. at 550. Two friends testified that they both were present at the closing, but each claimed that the deed conveyed the property only to him. Id. Each man later recorded a replacement deed. Id. at 551. The trial court made findings identifying the date, grantor, and grantee identified in the deeds that were recorded, but made no findings in connection with the lost deed. Id. at 551-52. Finally, the trial court concluded that one of the litigants had title to the property under the first-recorded replacement deed. Id. at 552. We explained that the findings of fact and conclusions of law revealed that instead of identifying the person named as the grantee in the lost deed, the trial court erroneously treated a conveyance as effective only if recorded. Id. at 554. We therefore reversed and remanded the case. Id. at 555.
• the Buyer released its claims against the Sellers and should take nothing on its claims.
The Buyer attempted to bring to the trial court's attention the question of the Sellers' common-law election of remedies, but the trial court's response showed that it considered only the availability of the Buyer's contractual election of remedies. For example, after the trial court read its findings of fact and conclusions of law showing that it was enforcing the release, the Buyer's attorney asked about proceeding with the closing on the Property. The trial court responded, "I don't think that that was squarely in front of me; but the usual — the usual rule of law is that a party in breach can't enforce a contract." This is true in those cases in which the other party chooses to treat the breach as terminating the contract, but there is more to the rule. "[I]f, after the breach, the non-breaching party continues to insist on performance by the party in default, 'the previous breach constitutes no excuse for nonperformance on the part of the party not in default and the contract continues in force for the benefit of both parties.'" Henry v. Masson, 333 S.W.3d 825, 840 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting Chilton Ins. Co., 930 S.W.2d at 887). Thus, if the non-defaulting party continues to insist on performance, then so can the breaching party.
That is just what the Buyer attempted to do here, arguing in its pleadings and in its post-trial motions that if the Sellers elected to enforce the Release, then they were obligated to proceed with the Property sale. But the final judgment shows that the trial court refused to address the question. Instead, it denied the Buyer's "request to transfer title or otherwise require specific performance of the sale of the Property," while also stating that it "does not find or otherwise rule that [the Sellers] are excused from their obligations under the [Release] and the [Sales Contract]." Thus, there is no express finding or ruling on the question of the Sellers' election, and none can be implied.
Q: [W]ould you be willing to abide by the agreement that everybody signed off on, full and final release and settlement?
A: The — this one?
Q: Would you be willing to abide by your word that you signed off on?
A: Well, the — no. I — I don't — the original 200,000 amount, I would.
As for reopening discovery and proceeding to trial on the original claims, the "trial court activity inquiry sheets" in the record show that after the breach, the trial court signed an order compelling a deposition, but the record does not indicate who sought the discovery. The record also indicates that the Sellers first amended their pleading to raise a claim for breach of the Settlement Agreement just six weeks after the breach occurred, and three months later, the trial court denied the Sellers' motion for partial summary judgment, but neither the pleading nor the motion is in the record. Although the Sellers' counsel argued at trial that the Release and the Sales Contract were separate and the Release remained in effect unless the Buyer properly terminated both agreements due to the Sellers' breach, the same attorney also argued for recovery of attorney's fees that were recoverable only if the contract was terminated. We are unwilling to treat a legal argument made by counsel a year after the breach as conclusive evidence that the Sellers elected to treat the Settlement Agreement as continuing, given that (1) the argument is wrong as a matter of law; (2) it contradicts the only factual evidence from the Sellers themselves about their willingness to perform the Settlement Agreement; (3) the Sellers sought summary judgment of some claims after the breach, but we do not know the claims or grounds addressed; and (4) the record shows that someone reopened discovery, but does not show whether it was the Buyer or the Sellers.
Although the Buyer has requested rendition rather than remand, remand is the relief to which it is entitled. See Jones, 291 S.W.3d at 555. We therefore reverse the trial court's judgment and remand the case. See TEX. R. APP. P. 43.3(a) ("When reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, except when . . . a remand is necessary for further proceedings . . . ."); Garza v. Cantu, No. 14-11-00724-CV, 2013 WL 5451592, at *9-10 (Tex. App.—Houston [14th Dist.] Aug. 27, 2013, pet. denied) (sub. op.) (remanding for a new trial where that was the relief authorized, and although the appellant asked only for rendition, it "did not adopt a 'rendition-or-bust' strategy"). In light of this disposition, we do not reach the Buyer's challenge to the orders concerning the release of registry funds, because our remand makes those orders interlocutory. The trial court remains free, however, to issue such orders as are necessary to protect the parties' interests pending final judgment or to apply credits and offsets in the final judgment as necessary to account for the over-or under-disbursement of funds to any party.
Panel consists of Justices Boyce, Christopher, and Brown.

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The Complainant is Sandals Resorts International (2000) Limited of Nassau, Bahamas, represented by Dechert LLP, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Fundacion Private WhoIs, Domain Administrator of Panama, Panama.
The disputed domain name <beachesresortturksandcaicos.net> is registered with Internet.bs Corp.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 10, 2012. On July 10, 2012, the Center transmitted by email to Internet.bs Corp. a request for registrar verification in connection with the disputed domain name. On July 13, 2012, Internet.bs Corp. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
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 July 13, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 2, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 3, 2012.
The Center appointed Williams R. Towns as the sole panelist in this matter on August 13, 2012. 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.
The Complainant has operated a holiday and vacation business, which includes all-inclusive holidays and related services, under the BEACHES brand for many years. The Complainant owns numerous trademark registrations for BEACHES and BEACHES-formative marks in the United States of America as well as a number of other countries around the world. The Complainant further operates a website related to its business and services at “www.beaches.com”.
The disputed domain name was registered on or about September 2, 2011. Since then the disputed domain name has been used with a website entitled “Beach Resorts Turks and Caicos” that provides information concerning or otherwise promotes various resorts on Turks and Caicos, including the Complainant’s Beaches resort located there.
The Complainant asserts that it has operated a holiday business under the BEACHES brand as since the mid-1980s, in addition to holding trademark registrations for marks consisting of or incorporating BEACHES in the United States, the European Union, and worldwide. According to the Complainant, the BEACHES mark is well-known in the United States, where considerable sums have been spent advertising the BEACHES brand on television, in magazines and through other media and sponsorship opportunities. The Complainant submits that it has won numerous awards for its BEACHES holidays and vacations over recent years.
The Complainant submits that the disputed domain name is confusingly similar to its BEACHES mark, given that the disputed domain name incorporates the Complainant’s mark in its entirety, with the additional descriptive words “resorts” and “Turks and Caicos”. The Complainant argues that because it operates a BEACHES resort on Turks and Caicos Internet users are likely to be confused whether the website with the disputed domain name is associated is owned, sponsored or otherwise affiliated with the Complainant.
According to the Complainant, it is clear that the Respondent was aware of the Complainant and had the Complainant’s BEACHES mark in mind when registering the disputed domain name, as evidenced by references to the Complainant’s BEACHES resort on Turks and Caicos. The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name, as the Respondent has not been commonly known by the disputed domain name, and has not been authorized to use the Complainant’s mark.
Further, the Complainant submits that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, or otherwise making a legitimate noncommercial or fair use of the disputed domain name, but that the Respondent instead is intentionally trading on the initial interest confusion resulting from the incorporation of the Complainant’s BEACHES mark in the disputed domain name, in order to attract Internet visitors to a website promoting the services of other parties, including direct competitors of the Complainant. In view of the foregoing, the Complainant also submits that the Respondent registered and is using the disputed domain name in bad faith.
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store, WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. Weber-Stephen Products Co. v. Armitage Hardware, WIPO Case No. D2000-0187. See Final Report of the WIPO Internet Domain Name Process, April 30, 1999, paragraphs 169 -177. The term “cybersquatting” is most frequently used to describe the deliberate, bad faith abusive registration of a domain name in violation of rights in trademarks or service marks. Id. at paragraph 170.
The Panel finds that for purposes of paragraph 4(a)(i) of the Policy the disputed domain name is confusingly similar to the Complainant’s BEACHES mark, in which the Complainant has established rights through registration and long and extensive use. In considering the question of identity or confusing similarity, the first element of the Policy stands essentially as a standing requirement.2 The threshold inquiry under the first element of the Policy is largely framed in terms of whether the trademark and the disputed domain name, when directly compared, are identical or confusingly similar.
There are differing views as to what is meant by “confusingly similar” in this context. In Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662 the panel applied a test which expressly disavowed any call for a likelihood of Internet user confusion; by contrast in SANOFI-AVENTIS v. Jason Trevenio, WIPO Case No. D2007-0648, the panel took a diametrically opposed view. The range of views is discussed in Apple Inc. v. Fred Bergstrom, LottaCarlsson, Georges Chaloux and Marina Bianchi, WIPO Case No. D2011-1388.
In this instance, the disputed domain name incorporates the Complainant’s mark in its entirety, and the Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark, whichever test is applied. In the Panel’s view, the confusing similarity of the disputed domain name to the Complainant’s mark is not overcome merely by the addition dictionary or descriptive terms such as “resorts” and “Turks and Caicos”, which in this instance is likely to call to mind the Complainant and its services. See Sandals Resorts International (2000) Limited v. BSJ Marketing, WIPO Case No. D2010-2218; See also National Association for Stock Car Auto Racing, Inc. v. Racing Connection / The Racin’ Connection, Inc., WIPO Case No. D2007-1524.
As noted above, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of rights or legitimate interests in a disputed domain name. The Panel is persuaded from the record of this case that a prima facie showing under paragraph 4(a)(ii) of the Policy has been made. The disputed domain name is confusingly similar to the Complainant’s BEACHES mark. It is undisputed that the Respondent has not been authorized to use the Complainant’s mark. The Respondent notwithstanding has used the disputed domain name with a website promoting various holiday and vacation resorts, including both the Complainant’s and those of competitors of the Complainant.
Based on the record in this proceeding, the Panel is persuaded that the Respondent was aware of the Complainant and had the Complainant’s BEACHES mark in mind when registering the disputed domain name. The Panel finds that the Respondent most likely registered the disputed domain name in order exploit and profit from the Complainant’s rights in the BEACHES mark through the creation of Internet user confusion. Internet users diverted to the Respondent’s website could easily be confused whether they have arrived at the Complainant’s website, or another website that is affiliated with or has the endorsement or sponsorship of the Complainant. See Levantur, S.A. v. Media Insight, WIPO Case No. D2008-0774.
In short, the record does not reflect the Respondent’s use of the disputed domain name in connection with a bona fide offering of goods or services, or that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, or that the Respondent has been commonly known by the disputed domain name, or authorized to use the Complainant’s mark. To the contrary, and in the absence of any reply by the Respondent, the record reflects that the Respondent has no rights or legitimate interests in the disputed domain name.
The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. The overriding objective of the Policy is “to curb the abusive registration of domain names in the circumstances where the registrant is seeking to profit from and exploit the trademark of another”. Match.com, LP v. Bill Zag and NWLAWS.ORG, WIPO Case No. D2004-0230.
For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy. It is reasonably clear from the relevant circumstances that the Respondent was aware of the Complainant and had the Complainant’s mark in mind when registering the disputed domain name. In the absence of any reply by the Respondent, the record evinces that the Respondents’ primary motive in relation to the registration and use of the disputed domain name was to capitalize on or otherwise take advantage of the Complainant’s trademark rights, through the deliberate creation of Internet user confusion. The record on balance reflects that the Respondent registered and has used the disputed domain name in bad faith to intentionally attract for commercial gain Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship or affiliation. See Edmunds.com, Inc. v. Ult. Search Inc., WIPO Case No. D2001-1319.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <beachesresortturksandcaicos.net> be transferred to the Complainant.
1 The panel notes that the named Respondent is the registrant of the disputed domain name identified in the Registrar’s WhoIs records. To the extent that the Respondent may be a privacy protection service, in the absence of any disclosure of an underlying registrant, the Panel considers the Respondent properly named in the Complaint.
2 See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (hereinafter “WIPO Overview 2.0”), paragraph 1.2.

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1. The case originated in an application (no. 37821/03) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Ashot Tsaturyan (“the applicant”), on 28 November 2003.
2. The applicant was represented by Mr J.M. Burns, a lawyer practising in Georgetown (Canada), Mr A. Carbonneau, a lawyer practising in Patterson (USA), and Mr R. Khachatryan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
3. On 6 September 2005 the President of the Third Section decided to give notice of the application to the Government.
4. On 23 June 2011 the President of the Third Section decided to apply Article 29 § 1 of the Convention and to rule on the admissibility and merits of the application at the same time.
5. The applicant was born in 1980 and lives in Yerevan.
6. The applicant is a Jehovah’s Witness. From 1997 he attended various Jehovah’s Witnesses religious services.
7. On 31 January 1997 the applicant was registered as a person liable for military service with the Shahumyan Military Commissariat. Because the applicant was studying at the university, his military service was postponed.
8. On 23 September 2002 the applicant received notice to appear at the military commissariat to report for military service.
9. On the same date the applicant wrote a letter to the Malatia-Sebastia District Military Commissariat, stating that he would not report for military service and requesting that his case be sent to the Prosecutor’s Office. The applicant also informed the General Prosecutor of Armenia in writing that he refused to perform military service because of his religious beliefs but was willing to perform alternative civilian service.
10. On 2 October 2002 the Shahumyan Military Commissar wrote to the relevant police station about the applicant’s refusal to report for military service, asking that he be forcibly brought to the military commissariat.
11. On 17 October 2002 the applicant made a statement at the police station, explaining that he refused to perform military service because of his religious beliefs but was willing to perform alternative civilian service.
12. By a letter of 8 November 2002 the Shengavit District Prosecutor’s Office of Yerevan informed the applicant that he would face criminal charges if he failed to report for military service.
13. On 4 March 2003 criminal proceedings were instituted under Article 75 of the Criminal Code on account of the applicant’s draft evasion.
14. On 18 March 2003 the applicant was questioned at the Shengavit District Prosecutor’s Office of Yerevan. He once again submitted that he was refusing to serve in the army for religious reasons but was prepared to perform alternative civilian service.
15. On the same date the Shengavit District Court of Yerevan ordered that the applicant be detained on remand.
16. On 29 April 2003 the Shengavirt District Court of Yerevan found the applicant guilty of draft evasion and sentenced him to two years in prison.
17. On an unspecified date the applicant lodged an appeal.
18. On 24 June 2003 the Criminal Court of Appeal upheld the judgment of the District Court.
19. On 3 July 2003 the applicant lodged an appeal, arguing, inter alia, that his conviction violated his rights guaranteed by Article 9 of the Convention.
20. On 25 July 2003 the Court of Cassation upheld the applicant’s conviction.
21. On 28 August 2003 the applicant was released on parole after having served five months and ten days of his sentence.
22. For a summary of the relevant domestic provisions see the judgment in the case of Bayatyan v. Armenia ([GC], no. 23459/03, §§ 41-45, 7 July 2011).
24. The Government submitted that the applicant had failed to exhaust the domestic remedies, as required by Article 35 § 1 of the Convention, since he had not applied to the Government under Section 12 § 1 (c) of the Military Liability Act with a request for exemption from military service.
25. The applicant submitted that he had exhausted all the effective domestic remedies, having appealed against his conviction to the Court of Appeal and the Court of Cassation. In any case, Section 12 § 1 (c) of the Military Liability Act could not be considered as an effective remedy.
26. The Court notes that the Government raised an identical argument which was dismissed in the case of Bayatyan v. Armenia ((dec.), no. 23459/03, 12 December 2006). There is no reason to come to a different conclusion in the present case.
27. This objection must therefore be dismissed.
28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
29. The Government claimed that there was no interference with the applicant’s rights guaranteed by Article 9. They claimed that Article 9 was not applicable to the applicant’s case since it, as interpreted by the former European Commission of Human Rights, did not guarantee a right to conscientious objection.
30. The applicant argued that Article 9 was applicable to his case and that there has been an interference with his freedom to manifest his religion.
31. The Court notes that this issue was recently decided by the Grand Chamber which held that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 (see Bayatyan, cited above, § 110). In that case the Grand Chamber concluded that Article 9 was applicable to the applicant’s case, who was similarly a Jehovah’s Witness who had refused to serve in the army on conscientious grounds, finding that his objection to military service was motivated by his religious beliefs which were genuinely held and were in serious and insurmountable conflict with his obligation to perform military service (ibid., § 111).
32. The Court observes that the circumstances of the present case are practically identical. It therefore rejects the Government’s argument and finds Article 9 to be applicable to the applicant’s case.
34. The applicant submitted that the interference was not prescribed by law because it was in violation of Armenia’s Constitution, the commitments which the Armenian authorities had undertaken when joining the Council of Europe and Armenia’s other international obligations such as those stemming from Article 18 of the International Covenant on Civil and Political Rights.
35. The Government did not comment on this point.
36. The Court, for the purposes of the present case and in view of its findings concerning the necessity of the interference (see paragraphs 44-45 below), prefers to leave open the question of whether the interference was prescribed by law (see Bayatyan, cited above, § 116).
37. The applicant submitted that the interference did not pursue a legitimate aim. Article 9 § 2 did not permit limitations in the interests of national security, while no other aims were invoked by the domestic courts in convicting the applicant.
38. The Government did not comment on this point.
39. The Court considers it unnecessary to determine whether the interference pursued a legitimate aim under Article 9 § 2 since it was in any event incompatible with that provision for the reasons set out below (ibid., § 117).
40. The applicant submitted that the imposition of criminal sanctions on conscientious objectors, even in those few member States that have not yet implemented alternative civilian service, could not be considered necessary in a democratic society. The Armenian authorities had acknowledged that when they undertook a commitment to refrain from imprisonment of conscientious objectors even before a law providing for such service was passed. Furthermore, the punishment imposed on him was wholly disproportionate in a modern democratic State.
42. The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A; Buscarini and Others, cited above, § 34; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 104, ECHR 2005-XI).
43. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 60, ECHR 2000-XI, and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 114, ECHR 2001-XII).
44. The Court notes that it has already examined a similar complaint in the case of Bayatyan v. Armenia and concluded that the imposition of a penalty on the applicant, in circumstances where no allowances were made for the exigencies of his conscience and beliefs, could not be considered a measure necessary in a democratic society (see Bayatyan, cited above, §§ 124-125). In the present case, the applicant was similarly a member of Jehovah’s Witnesses who sought to be exempted from military service not for reasons of personal benefit or convenience but on the ground of his genuinely held religious convictions and the only reason why he was not able to do so and incurred criminal sanctions was the absence of such an opportunity.
45. For the above reasons, the Court considers that the applicant’s conviction constituted an interference which was not necessary in a democratic society within the meaning of Article 9 of the Convention. Accordingly, there has been a violation of that provision.
46. The applicant also raised a number of other complaints under Articles 9 and 14 of the Convention.
47. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
49. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.
50. The Government did not comment on this claim.
51. The Court considers that the applicant has undoubtedly suffered non-pecuniary damage as a result of his conviction and imprisonment for his refusal to serve in the army on conscientious grounds. Having regard to the circumstances of the case and ruling on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.
52. The applicant claimed a total of EUR 12,250 for costs and expenses incurred in the domestic proceedings and the proceedings before the Court. The applicant submitted invoices in respect of three lawyers, one domestic and two foreign, containing lump sum amounts payable for each portion of the work done up to and including the taking of a final decision on his case.
53. The Government did not comment on this claim.
54. The Court reiterates that legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy [GC], no. 33202/96, § 27, ECHR 2000-I). In the present case, the applicant’s application to the Court included a number of other complaints under Articles 9 and 14 of the Convention, which were declared inadmissible. Therefore the claim cannot be allowed in full and a reduction must be applied. Making its own estimate based on the information available, the Court awards the applicant EUR 4,000 for costs and expenses.
55. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
4. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Gyulumyan and Ziemele are annexed to this judgment.
The instant application was lodged at the same time as Bayatyan v. Armenia (GC, no. 23459/03, 7 July 2011) and raises the same issue under Article 9 of the Convention.
In the case of Bayatyan the Grand Chamber voted in favour of finding a violation of the above-said Article, and in the present case the majority of the Chamber followed the same approach.
For the reasons set out in my detailed dissenting opinion in Bayatyan, I voted against the majority on the admissibility and merits of the claim, and so I did the same in the present case.
1. This case follows the approach that the Court took in the leading judgment in the case of Bayatyan v. Armenia ([GC], no. 23459/03, §§ 41-45, 7 July 2011). There are three main grounds for finding a violation of the right to freedom of religion in cases of conscientious objectors: first, a person’s conscience or deeply and genuinely held religious or other beliefs constituting a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 (see Bayatyan, cited above, § 110); second, the fact that at the time the alleged events took place in Armenia the right to conscientious objection was recognised in State practice in Europe; and, third, that Armenia had pledged to enact the necessary legislation to implement that right at domestic level.
2. The Bayatyan judgment, as followed by the Chamber in this case, raises a very interesting question regarding the application of the Convention in the light of an established regional customary norm with respect to a State which – in the context of a political process – has been given a certain time-limit for complying with that customary norm. The Court’s answer is that even if the facts of the case arose before and during the transitional period for the enactment of the relevant domestic law on alternative service granted to Armenia upon its accession to the Council of Europe, the obligation to respect the right to freedom of religion of conscientious objectors applies from the moment the right itself is established in international law and the State concerned has ratified the Convention. This sheds an interesting light on the role of the Council of Europe and the political process of negotiating the entrance conditions for prospective member States of the organisation. Neither the Grand Chamber in the Bayatyan judgment nor the Chamber in this case have provided a clear solution to this. Instead, the dialogue of Armenia with the Council of Europe has been one of the arguments considered by the Court as part of the balancing exercise between the rights of the applicants and the public interest.
“By ratifying the Convention and Protocols Nos. 1, 4, 6 and 7 on 27 June 1997, [Latvia] has undertaken to “secure”, as from that date, the rights and freedoms defined in the Convention and the said Protocols to everyone within its jurisdiction (Article 1 of the Convention), subject to any valid reservations made under Article 57 of the Convention. ... It follows from the text of Article 57 § 1 of the Convention, read in conjunction with Article 1, that ratification of the Convention by a State presupposes that any law then in force in its territory should be in conformity with the Convention. If that should not be the case, the State concerned has the possibility of entering a reservation in respect of the specific provisions of the Convention (or Protocols) with which it cannot fully comply by reason of the continued existence of the law in question (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, §§ 58 and 60, ECHR 2002-II (extracts))”.
“.. the applicant was similarly a member of Jehovah’s Witnesses who sought to be exempted from military service not for reasons of personal benefit or convenience but on the ground of his genuinely held religious convictions and the only reason why he was not able to do so and incurred criminal sanctions was the absence of such an opportunity” (see paragraph 44). It seems to me that the European Court acts on the basis of an assumption that the applicant indeed holds genuine convictions as confirmed by all the procedures that he has gone through at domestic level and that, in the absence of any proper domestic assessment or arguments to the contrary from the Government, the Court has had to maintain that assumption. I can certainly agree that the Government did not submit any evidence to the contrary or, for that matter, any other relevant explanation. In my view, there is still an unresolved question regarding the test and how it will be applied in practice in future cases.