Steven Polakoff v. Fulviu Fodoreanu

Claim Number: FA0205000114276



Complainant is Steven Polakoff, Miami, FL (“Complainant”) represented by Mark G. Milone, of Klein, Zelman, Rothermel & Dichter, LLP.  Respondent is Fulviu Fodoreanu, Arcadia, CA (“Respondent”).



The domain names at issue are <> and <> registered with



The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.



Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 15, 2002; the Forum received a hard copy of the Complaint on May 15, 2002.


On May 17, 2002, confirmed by e-mail to the Forum that the domain names <> and <> are registered with and that Respondent is the current registrant of the names. has verified that Respondent is bound by the registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).


On May 17, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”) setting a deadline of June 6, 2002, by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).


A timely Response was received and determined to be complete on June 17, 2002.


On July 16, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.


Due to extenuating circumstances, the Panel was granted an extension until August 17, 2002, with which to submit its decision.



Complainant requests that the domain names be transferred from Respondent to Complainant.



A.     Complainant makes the following allegations in this proceeding:


Complainant urges that he has common law rights in the marks M4M4SEX.COM and M4M4SEX and that he has used those marks in the United States and Europe since November 13, 2000, relative to a computer dating service he operates. Complainant urges that Respondent registered domain names that are identical to Complainant’s marks without rights to or legitimate interests in the marks that are contained in their entirety in the disputed domain names.  Complainant urges that Respondent acted in bad faith in registering the domain names in issue.


B.     Respondent made the following points in response:


Respondent urges that the M4M combination has broad use to the extent of being generic and that Complainant has no common law rights to it. Respondent contends that Complainant’s application for a legal trademark in M4M was filed ten days after Respondent made use of M4M in a domain name.  Further, Respondent maintains that Respondent has rights to the M4M combination based on Respondent’s federal service mark, “man4man” and based on a d/b/a filing in California of m4m4sex. Respondent urges that he is making a bona fide use of the domain names in issue and that they are up and running. Respondent urges that he acted in good faith.



Complainant has common-law rights in the marks “M4M4SEX.COM” and “M4M4SEX” with relation to on-line dating services that he operates and Complainant has engaged in extensive advertising and promotion of these services throughout the United States and Europe. Complainant has done business under those names since November 13, 2000, and Complainant claims a total membership of 74,453 that allegedly is growing at the rate of 1,200 to 1,500 members per week.  Complainant’s website receives approximately 30,000 unique visitors per day.  Respondent did not controvert any of these statements by Complainant.


Complainant’s services have been featured in HX Magazine, and Genre.


The domain names registered by Respondent are identical to and confusingly similar to Complainant’s common-law marks. 


Complainant urges that it is known by the M4M4SEX marks and that Respondent is not.

Complainant concedes further that Complainant offered to purchase the domain names in dispute through the efforts of Complainant’s attorney.  Complainant alleges that Respondent sought $100,000. in exchange for the transfer.


On May 2, 2002, Complainant’s attorney sent Respondent a cease and desist letter.


Respondent registered both disputed domain names April 24, 2002, and

Complainant made formal trademark applications for the marks May 6, 2002. Respondent claims that he registered the service mark “MAN4MAN” December 5, 2001, having a first use in commerce on November 4, 2001, approximately one year after Complainant initiated his on-line dating service under the common law marks M4M4SEX.COM and M4M4SEX. 


Respondent offered no proof that he holds a registered trademark of any kind.



Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”


Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:


(1)    the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(2)    Respondent has no rights or legitimate interests in respect of the domain name; and

(3)    the domain name has been registered in bad faith or is being used in bad faith.


Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.


Identical to or Confusingly Similar 


Complainant has established common law trademark rights in the M4M4SEX.COM and M4M4SEX marks.


Complainant has used the marks internationally since November 13, 2000, focusing on the American and European markets. Complainant has done business under the aforementioned names in relation to its online dating services, which claims a total membership of 74,453 users as of April 30, 2002, and claims that membership is growing at a rate ranging from 1,200 to 1,500 members per week. Complainant’s website, located at <>, receives approximately 30,000 visitors a day.


Complainant’s common law marks have been acclaimed in connection with its dating services in various online and printed magazines, including, HX Magazine,, and Genre.


Complainant also maintains that he has spent in excess of $500,000. promoting and developing the M4M4SEX.COM and M4M4SEX marks. The Panel may find that Complainant has provided sufficient evidence establishing common law rights in the M4M4SEX.COM and M4M4SEX marks. See British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the UDRP does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names and applying the UDRP to unregistered trademarks and service marks); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of the said name [<>] in connection with its banking business, it has acquired rights under the common law).


Complainant asserts that the domain names registered by Respondent, <> and <>, are identical to and confusingly similar to Complainant’s common law marks.


In the first instance, Complainant contends that Respondent’s <> domain name deviates from Complainant’s M4M4SEX.COM mark only by incorporating an alternative generic top-level domain. More specifically, Respondent’s domain name replaces Complainant’s “.com” with “.us.” Complainant argues that Respondent fails to make a distinct and separate mark because the primary part of the domain name, the second level domain “m4m4sex,” is identical to Complainant’s mark. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).


Secondly, Complainant asserts that Respondent’s <> mark is confusingly similar to its M4M4SEX mark because it incorporates a substantial portion of Complainant’s common law mark. Complainant maintains that Respondent’s second level domain “m4m” makes the minor omission of deleting the phrase “4sex.” Complainant believes that Respondent’s slight deviation is not sufficient to distinguish Respondent’s registered domain name from Complainant’s common law mark. Furthermore, the Panel may find that because Respondent is involved in substantially the same industry and business as Complainant, the likelihood of confusion is increased. See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word…nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied); see also WestJet Air Center, Inc. v. West Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <> domain name is confusingly similar to Complainant’s mark, where Complainant holds the WEST JET AIR CENTER mark); see also Slep-Tone Entm't Corp. v. Sounds Choice Disc Jockeys, Inc., FA 93636 (Nat. Arb. Forum Mar. 13, 2000) (stating that “likelihood of confusion is further increased by the fact that the Respondent and [Complainant] operate within the same industry”).


The Panel finds that Complainant satisfied Policy ¶ 4(a)(i) as to the <> and <> domain names; the former is identical to Complainant’s mark and the latter is confusingly similar to Complainant’s common law marks.


Rights to and Legitimate Interests


Complainant argues that Respondent is opportunistically attempting to trade on the goodwill associated with Complainant’s M4M4SEX.COM and M4M4SEX marks. Complainant believes that Respondent had constructive knowledge of Complainant’s marks when Respondent registered the infringing domain names. Complainant asserts that the primary reason Respondent sought to register the disputed domain names was the fame associated with Complainant’s marks and the number of people accessing the Complainant’s sites, thereby attempting to commercially benefit from Complainant’s development of its mark. See Nat’l Acad. Of Recording Arts & Sci Inc. v. Lsites, FA 103059 (Nat. Arb. Forum Feb. 11, 2002) (finding that any planned use of <> by Respondent would be an opportunistic attempt to attract Internet users via Complainant’s famous GRAMMY mark; therefore, Respondent had no rights or legitimate interests); see also Household Int’l, Inc. v. Cyntom Enter., FA 95784 (Nat.

Arb. Forum Nov. 7, 2000) (inferring that Respondent registered the domain name <>, which incorporates Complainants HOUSEHOLD BANK mark, with hopes of attracting Complainant’s customers and thus finding no rights or legitimate interests).


Complainant urges that Respondent registered the domain names in issue in order to sell them and that registration of an infringing domain name, for the purpose of selling it or transferring it, does not correspond with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) and it does not represent a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See Hewlett-Packard Co. v. High Perf. Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where the Respondent registered the domain name with the intention of selling it); see also Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark). Complainant asserts that it has generated an expansive membership base through the promotion and advertisement of the M4M4SEX.COM and M4M4SEX marks. Complainant offered proof in support and Respondent did not challenge the Complainant’s contentions.


Complainant further believes that as a result of Complainant’s extensive promotion and advertisement, Complainant’s marks are famous, have acquired substantial goodwill and are exclusively associated with Complainant internationally.


Because of the alleged fame associated with Complainant’s marks, Complainant also believes it is unlikely that Respondent is commonly known by the <> and <> domain names pursuant to Policy ¶ 4(c)(iii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).


The Panel agrees that neither party to this proceeding is known by the mark or domain names in issue. The Panel knows Complainant as Steven Polakoff and the Respondent as Fulviu Fodoreanu.   However, Complainant established the relationship between Polakoff and M4M4SEX.COM and Respondent produced no documents to show ownership or relationship to the MAN4MAN mark that Respondent claims to own as support for his right to register the <> and <> domain names.


Respondent argues that Complainant does not have a common law right in the M4M4SEX and M4M4SEX.COM marks that is subject to protection because the marks represent a generic combination of letters and numbers. Respondent states: “There are many other sites using the M4m [sic] combination of words, see this [sic] addresses;,, ., They do not have a service or trademark for it.” Some authority exists for Respondent’s contention. See Zero Int'l Holding v. Beyonet Servs., D2000-0161 (WIPO May 12, 2000) (stating that "[c]ommon words and descriptive terms are legitimately subject to registration as domain names on a 'first-come, first-served' basis"); see also Rollerblade, Inc. v. CBNO and Redican, D2000-0427 (WIPO Aug. 24, 2000) (finding that “genericness, if established, will defeat a claim of trademark rights, even in a mark which is the subject of an incontestable registration”); see also PetWarehouse v. Pets.Com, Inc., D2000-0105 (WIPO Apr. 13, 2000) (finding that "pet" and "warehouse" are generic terms and therefore not subject to trademark protection; although it is possible for two generic terms taken together to achieve trademark or service mark status by achieving a sufficient level of secondary meaning in the relevant community, the burden is on the party making a claim to show distinctiveness or secondary meaning).


Here, despite the fact that Complainant developed an enterprise with a significant following approximately one year before Respondent registered domain names that contain in their entirety the Complainant’s marks, some support exists to show that M4M has common use and a common understanding that is not unique to the Complainant’s services and that M4M is a generic term. When a term is generic, the Complainant has the burden to go forward with proof that the term has acquired secondary meaning among the public that relates the term itself to goods, services and products with the provider of the goods, services and products without regard to the product itself.  The Panel believes that Complainant presented sufficient evidence that M4M4SEX.COM is identified to the services that Complainant provides and that M4M4SEX.COM has secondary meaning associated with the international services provided by Complainant.  Complainant also showed that Complainant has common law rights to M4M4SEX.COM arising from widespread and continuous use predating Respondent’s attempts to opportunistically encroach upon the goodwill associated with Complainant’s services. 


Complainant has not made a similar showing for the disputed domain name, <>, for which Complainant has never exercised a use and which has been used by others. See, Inc. v. Alberga, FA 100608 (Nat. Arb. Forum Dec. 11, 2001) (finding that Complainant failed to prove trademark rights at common law because it did not prove the CYBERIMPRINTS.COM mark was used to identify the source or sponsorship of goods or services or that there was strong customer identification of the mark as indicating the source of such goods or services).  Complainant has made no showing of prior use of the M4M mark such as would establish with the public a secondary meaning that such services are unique to Complainant. See LLA v. US Tours & Travel, Inc., AF-0284 (eResolution Sept. 9, 2000)  (finding that marks classified as descriptive cannot be protected unless secondary meaning is proven and to establish secondary meaning the Complainant must show that the public identifies the source of the product rather than the product itself); see also v. Manski, FA 114300 (Nat. Arb. Forum Aug. 1, 2002) (“Complaint is using the word generically to describe its computer business, and it has failed to demonstrate sufficiently strong identification of its mark to establish secondary meaning”); see also A.O. Smith Corp. v. Rheem Solar Centre, FA 114389 (Nat. Arb. Forum July 31, 2002) (finding that Complainant, a water heater manufacturer, did not have rights in HOTWATER even though it operated a website at <> for six years because it failed to provide evidence of secondary meaning); see also Exxon Mobil Corp. v. Marco Publ’g Corp., FA 112534 (Nat. Arb. Forum July 10, 2002) (denying Complainant’s claim because Complainant failed to provide either proof of registration of its alleged ENERGY mark or evidence of secondary meaning in the mark); see also London Special Risks Ltd. v. Wooho T&C d/b/a RGnames, FA 112505 (Nat. Arb. Forum July 31, 2002) (finding that, although Complainant held rights in the ANGEL mark and Respondent had not proven its rights in the <> domain name, Complainant failed to affirmatively prove Respondent’s lack of rights in the domain name).


However, Respondent also has not shown a common law or legal right to use the m4m mark. Respondent contends that he owns a registered service mark (Reg. No. 78,096,779) for MAN4MAN, registered December 5, 2001 with a first use in commerce of November 2, 2001. Respondent asserts that registration of the MAN4MAN mark demonstrates its rights and legitimate interests in the domain names pursuant to Policy ¶ 4(c)(i). See Optum, Inc. v. United Health Group, FA 104102 (Nat. Arb. Forum Mar. 8, 2002) (finding that Respondent United Health Group’s assertion that United Healthcare Corporation assigned to United Health Group its trademark rights in OPTUM, when supported by “some proof” and undisputed by Complainant, warranted dismissal of the claim).  However, the Panel did not find proof in Respondent’s submission of any such service mark or assumed name filing.


Respondent further asserts that the disputed domain names, <> and <>, are used in conjunction with a functional website, which has been offering services since April of 2002. Respondent alleges that its websites have generated a database of over 70,000 free memberships. Thus, Respondent asserts that Respondent has demonstrated rights to and legitimate interests in the domain names by making a bona fide offering of a chat service pursuant to Policy ¶ 4(c)(ii). Some authority supports this position. See Canal & Image UK Ltd. v. VanityMail Serv., Inc., FA 94946 (Nat. Arb. Forum July 18, 2000) (finding that a draft of an unimplemented business plan was sufficient to show Respondent’s legitimate interest in the domain name); see also S. Co. v. Doms, D2000-0184 (WIPO May 8, 2000) (finding that “Respondent has shown demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute); see also 3Z Prod. v. Globaldomain, FA 94659 (Nat. Arb. Forum June 9, 2000) (finding a legitimate interest in a domain name is shown by website development). 


However, Respondent did not address the fact that Complainant uses the M4M4SEX.COM mark in the same area of commerce and did so successfully for one year before Respondent registered these disputed domain names. Respondent could be said to have opportunistically traded on Complainant’s extensive development costs and prior common law rights in the M4M4SEX.COM mark in order to gain economic advantage for Respondent.


Interestingly enough, Respondent takes the position that the domain name <> is a short version of the Respondent’s MAN4MAN mark, which Respondent did not establish with appropriate proof in this proceeding.  Respondent maintains that Respondent often represents itself as “d/b/a ‘m4m4sex’ as well as ‘m4m’” in the state of California, thereby establishing rights to and legitimate interests under Policy ¶ 4(c)(iii).


Respondent acquired no rights by opportunistically trading upon Complainant’s mark after Complainant acquired common law rights in the mark. Causing confusion by using the mark of another to engage in the same business enterprise is not a bona fide legitimate use under the Policy.


However, neither side has established an exclusive right to use the M4M term and Complainant has that burden.  M4M is not an invented word having no descriptive character.  It is two initials and a number commonly associated as being “man for man” and carrying a sexual connotation in the gay community.  Complainant had the burden to show that Complainant had exclusive rights to use M4M and that Respondent lacked such rights. See FreedomCard, Inc. v. Kim, D2001-1320 (WIPO Jan. 20, 2002) (“Were the trademark a well-known invented word having no descriptive character, these circumstances would shift the onus to Respondent to demonstrate its rights or legitimate interest in the disputed domain name . . . [b]ut the mark FREEDOM CARD is a common generic expression in which the Complainant cannot have exclusive rights”); see also Car Toys, Inc. v. Informa Unlimited, Inc., FA 93682 (Nat. Arb. Forum Mar. 20, 2000) (finding that Respondent has rights and legitimate interests in the domain name where Complainant submitted insufficient evidence to establish either fame or strong secondary meaning in the mark such that consumers are likely to associate <> with the CAR TOYS mark); see also CRS Tech. Corp. v. Condenet, Inc., FA 93547 (Nat. Arb. Forum Mar. 28, 2000) (finding that “concierge is not so associated with just one source that only that source could claim a legitimate use of the mark in connection with a website”); see also Shirmax Retail Ltd. v. CES Mktg., Inc., AF-0104 (eResolution Mar. 20, 2000) (“given the generic nature of the domain name, [Respondent] has at least a tenable argument that its use on the web merely for the purpose of redirecting visitors to a different site constitutes a legitimate fair use, as long as this use is not misleading to consumers and does not tarnish a trademark”).


Respondent also did not establish a right to use the <> domain name with any proof other than his subjective contentions.


The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii) as to the <> domain name but that Complainant failed to meet his burden of showing that Complainant has an exclusive right to use the M4M mark relative to the <> domain name.


Registration and Use in Bad Faith  

Complainant argues that Respondent’s registration and continued use of the disputed domain names was done intentionally to attract Complainant’s customers without Complainant’s permission and that Respondent’s actions evidence bad faith pursuant to Policy ¶ 4(b)(iv). See Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that Respondent demonstrated bad faith where Respondent was aware of the Complainant’s famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain names); see also London Metal Exch. Ltd. v. Hussain; D2000-1388 (WIPO Dec. 15, 2000) (finding that the “letters ‘lme’ are so obviously connected with a well-known entity that their very use by someone with no connection to Complainant suggests opportunistic bad faith”).


Complainant also urges that it has provided evidence that indicates Respondent registered or acquired the domain names primarily for the purpose of selling, renting or otherwise transferring the domain name registrations for valuable consideration in excess of reasonable costs of registration. Complainant asserts that Respondent’s offer to sell the domain names for $100,000 evidences bad faith under Policy ¶ 4(b)(i). See Pocatello Idaho Auditorium Dist. v. CES Marketing Group, Inc., FA 103186 (Nat. Arb. Forum Feb. 21, 2002) ("[w]hat makes an offer to sell a domain [name] bad faith is some accompanying evidence that the domain name was registered because of its value that is in some way dependent on the trademark of another, and then an offer to sell it to the trademark owner or a competitor of the trademark owner"); see also Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names for sale); see also Banca Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where the Respondent offered the domain names for sale).


Respondent denies that the disputed domain names were offered for sale and maintains that Complainant never contacted Respondent by phone.  Furthermore, Respondent contends that its registration and use of the disputed domain names preceded Complainant’s applications for service marks that reflect its alleged interests. Some authority exists that would suggest that Respondent can acquire rights in domain names that are registered before rights are developed in a mark. See Parachute, Inc. v. Jones, FA 94947 (Nat. Arb. Forum July 12, 2000) (denying transfer of the domain name because the Respondent’s use of the PARACHUTE mark and the domain name in question preceded any use of the service mark by Complainant); see also Latent Tech. Group, Inc. v. Fritchie, FA 95285 (Nat. Arb. Forum Sept. 1, 2000) (finding that Respondent does have a legitimate interest in the domain name where Complainant applied for registration of the mark after Respondent registered the domain name and Complainant has not proven any earlier use of the mark).


The Panel may also find that because Complainant and Respondent are competitors in the same field of business, namely adult dating and chat services for gay men, that Respondent’s registration and use of domain names identical and confusingly similar to Complainant’s mark was primarily done to disrupt the business of Complainant. Because Respondent and Complainant are in a competitive business relationship, the Panel is permitted to infer that Respondent’s motivations for registering and using the disputed domain names were in bad faith pursuant to Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion); see also General Media Communications, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001) (finding bad faith where a competitor of Complainant registered and used a domain name confusingly similar to Complainant’s PENTHOUSE mark to host a pornographic web site); see also Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and used in bad faith where Respondent and Complainant were in the same line of business in the same market area).


The Panel finds that absent some proof of the development costs, an offer to sell a domain name for $100,000, on its face, is an amount that is in excess of reasonable costs of registration and constitutes bad faith.  Bad faith would apply to Respondent’s registration of the <> domain name. However, inasmuch as the Panel has concluded that the Complainant did not establish an exclusive right to use the m4m mark, the Panel declines to find that an offer to sell a domain name to which one might have had a right and interest constitutes bad faith.


The Panel finds that Policy ¶ 4(a)(iii) has been satisfied relative to the <> domain name but not as to the <> domain name.




Having established all three elements required under usTLD Policy, the Panel concludes that the requested relief should be GRANTED as to the <> domain name and it is accordingly ORDERED that the <> domain name be TRANSFERRED from Respondent to Complainant. 


Having established that the <> domain name is generic and that Complainant did not establish all three elements required under usTLD Policy, the Panel concludes that the requested relief as to <> should be DENIED and that the challenge to the <> domain name should be and it accordingly is hereby DISMISSED. 


Hon. Carolyn Marks Johnson, Panelist
Dated: August 17, 2002


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