Nordic Inn Condo. Owners' Ass'n v. Ventullo
| Citation | 864 A.2d 1079,151 N.H. 571 |
| Decision Date | 29 December 2004 |
| Docket Number | No. 203–792.,203–792. |
| Court | Supreme Court of New Hampshire |
| Parties | NORDIC INN CONDOMINIUM OWNERS' ASSOCIATION v. Arline A. VENTULLO d/b/a Nordic Inn Too and another. |
Winer and Bennett, LLP, of Nashua (Gary A. Braun on the brief and orally), for the plaintiff.
Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the brief and orally), for the defendant.
The defendants, Arline A. Ventullo d/b/a Nordic Inn Too and Nordic Inn Too, Ltd., appeal an order of the Superior Court (Burling , J.) granting the plaintiff's motion for a permanent injunction. The plaintiff, Nordic Inn Condominium Owners' Association (NICOA), cross-appeals, arguing that the court erred in denying its request for monetary damages and attorney's fees under the New Hampshire Consumer Protection Act, see RSA ch. 358–A (1995 & Supp.2004), and the New Hampshire Trade Names Act, see RSA 349:10 (1995). NICOA also argues that the court erred in denying its request for monetary damages and attorney's fees under the Federal Anticybersquatting Consumer Protection Act, see 15 U.S.C. § 1125(d)(1) (2000), and its request that the defendants be ordered to transfer, forfeit or cancel six website addresses pursuant to the Act, see 15 U.S.C. § 1125(d)(1)(C). We affirm.
The record supports the following facts. NICOA is an unincorporated association of unit owners in a condominium complex known as the Nordic Inn, located in Lincoln. The condominium complex was built in the second half of the 1980's by Bradgate Associates and control of the complex passed from Bradgate to NICOA in the early 1990's. On October 10, 1991, Bradgate assigned to NICOA "the use of the ‘Nordic Inn’ registered trade name." On November 13, 1991, NICOA registered the trade name "Nordic Inn" with the New Hampshire Secretary of State. At the time of the underlying litigation, that trade name was registered in good standing with the State. The units at the complex are residential vacation properties, and most unit owners rent their units to the public by the day, week or month. NICOA uses a single rental agency to facilitate the rental process; however, there is no requirement that owners use NICOA's rental agent to rent their properties.
When NICOA was initially establishing itself in the market, it encouraged owners who did not rent through the authorized rental agency to use the "Nordic Inn" trade name. For example, one letter, dated April 1, 1990, addressed to "Dear Nordic Inn Homeowner," stated, Additionally, NICOA allowed owners to purchase brochures from its rental agent for use in their private rental efforts.
Ventullo has owned two units at the condominium complex since 1988. In the early 1990's, she served as a board member of NICOA for two years and was instrumental in forming NICOA's first authorized rental agency, for which she worked. In 1992, Ventullo, acting in her then joint capacity as a NICOA board member and representative of the authorized rental agency, solicited legal advice regarding certain unit owners' wrongful use of the registered trade name "Nordic Inn" while renting and advertising their units. NICOA's legal counsel advised NICOA's board of directors that failure to pursue the individual owners for such use could result in the loss of NICOA's "rights to the exclusive use of that name" and "at a minimum, the Association should place [the offending owners] on notice of its objection to such misuse of the trade name." Despite this advice, NICOA took no action with regard to the use of its trade name.
In 1996, Ventullo, who was no longer associated with the authorized rental agency, formed a Massachusetts corporation called "Nordic Inn Too, Ltd." (NIT) through which she sought to rent her units as well as those of other owners in the complex. At the time she formed the corporation, Ventullo informed at least one member of the NICOA board of the name she planned to use. At that time, there was no objection by any member of the board to her choice of name.
On January 5, 1998, the defendants registered a website address, www.nordicinn.com , through which they advertised their rental agency. On September 22, 1999, NICOA solicited the defendants, among others, to act as its authorized rental agent, but NICOA did not select the defendants. On October 14, 1999, the authorized rental agency registered a website, www.nordicinnresort.com . During 2000, the first full year of operation, the authorized rental agency's website directly or indirectly generated twenty-four percent of NICOA's bookings, and in its second and third years of operation it generated approximately thirty-four percent and thirty-nine percent of bookings respectively. By 2003, the fourth full year of operation, the website generated fifty percent of NICOA's bookings.
Because the defendants are not the authorized rental agency, they do not operate through an agent located at the inn who conducts business, receives guests, and handles guest complaints. Instead, the defendants' guests pick up their keys at a nearby gas station and the defendants handle guest requests or complaints by telephone. As Internet bookings became a more important factor in its business, NICOA noticed that many of the defendants' guests would approach the authorized rental agency in the main office to request towels, new keys, or to lodge various complaints. Frequently, NIT renters were confused and visibly upset with NICOA's agents when they learned there were no on-site services or any staff available to assist them.
On August 26, 2002, counsel for NICOA sent a letter to the defendants demanding that they "permanently cease and desist all use of ... the trade name ‘Nordic Inn’ ... [and] terminate [their] registration of the domain name www.nordicinn.com ...." Ventullo responded in a September 7, 2002 letter, stating that the defendants would be willing to make some minor changes, but that after years of developing this site and building a successful business, they were unwilling to voluntarily relinquish the domain name. On October 5, 2002, the defendants registered the Internet website addresses www.nordicinn.net, www.nordicinn.org, www.nordicinn.biz, www.nordicinn.info, and www.nordicinn.us. NICOA filed suit on October 7, 2002.
After a hearing on the merits, the trial court issued an order granting NICOA's request for a permanent injunction specifically enjoining the defendants from using the trade name "Nordic Inn" as part of any corporate name in New Hampshire or as part of a domain name in connection with their business. However, the court denied NICOA's request for monetary damages and attorney's fees under RSA chapter 358–A and RSA 349:10. The court also denied NICOA's request for damages and attorney's fees under 15 U.S.C. § 1125(d)(1), as well as its request that the defendants be ordered to transfer, forfeit or cancel their domain names pursuant to 15 U.S.C. § 1125(d)(1)(C). The defendants appeal the trial court's issuance of the permanent injunction, while NICOA cross-appeals the trial court's refusal to award monetary damages and attorney's fees and refusal to order the defendants to transfer, forfeit or cancel their six website addresses.
The defendants first argue that the trial court erred in granting the permanent injunction because they have a contractual right to the use of the "Nordic Inn" name, citing Article 15–100 in the "Declaration of Condominium," which provides:
150 N.H. 187, 190, 836 A.2d 752 (2003). As is the case with any contract, the interpretation of a condominium's declaration is a question of law, which we review de novo . Id. at 191, 836 A.2d 752. The defendants argue that Ventullo, as the owner of a beneficial interest in the personal property acquired and held by the condominium association, is entitled to use the "Nordic Inn" name "in connection with advertising and promoting the rental of units at the Nordic Inn Condominium complex," including the right to assign such ownership to NIT. We disagree.
It is undisputed that trademark rights qualify as intangible personal property. See Black's Law Dictionary 1233 (7th ed.2000) (defining personal property as "[a]ny movable or intangible thing that is subject to ownership and not classified as real property"). A beneficial interest is defined as "[a] right or expectancy in something (such as a trust or an estate), as opposed to legal title to that thing." Id. at 149 (emphasis added). The provision cited by the defendants provides nothing more than a beneficial interest in the tangible and intangible personal property held by the board of directors, subject to certain fiduciary duties that the board may owe the condominium owners, and the defendants have no contractual right to appropriate such personal property. For example, the board may have acquired certain computer equipment and other office supplies, which qualify as tangible personal property, that it uses for administrative tasks. Following the logic of the defendants' argument, any one of the approximately 100 condominium owners could at any time for any...
To continue reading
Request your trial