Ginn Real Estate Company LLC v. Hilton Wiener
Claim Number: FA0806001211342
Complainant is Ginn Real Estate Company LLC (“Complainant”), represented by Jack
D. Todd, of Morris Manning & Martin LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ginnlawsuit.com>, registered with GoDaddy.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 20, 2008; the National Arbitration Forum received a hard copy of the Complaint on June 23, 2008.
On June 23, 2008, GoDaddy.com confirmed by e-mail to the National Arbitration Forum that the <ginnlawsuit.com> domain name is registered with GoDaddy.com and that the Respondent is the current registrant of the name. GoDaddy.com has verified that Respondent is bound by the GoDaddy.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 27, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 17, 2008 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
A timely Response was received and determined to be complete on July 15, 2008.
An Additional Submission was received from Complainant on July 18, 2008 and found to be timely and complete pursuant to the National Arbitration Forum’s Supplemental Rule 7.
An Additional Submission was received from Respondent on July 23, 2008 and found to be timely and complete pursuant to the National Arbitration Forum’s Supplemental Rule 7.
On July 24, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honourable Neil Anthony Brown QC as Panelist.
On August 6, 2008, the Panel ordered that due to exceptional circumstances, the time period within which the Panel was required to render its Decision be extended until August 21, 2008.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant alleges that the domain name <ginnlawsuit.com> should no longer be registered with Respondent but that it should be transferred to the Complainant.
It contends that this should be done because, within the meaning of paragraph 4 of the Policy, the domain name is confusingly similar to the Complainant’s registered trademarks incorporating the word GINN, that the Respondent has no rights or legitimate interests in the domain name and that it has been registered and subsequently used in bad faith. The Complainant maintains that it can prove all three of these requirements and that the appropriate remedy is to transfer the domain name to the Complainant.
In support of its case on the first of these three elements, Complainant relies on the registered GINN trademarks to which reference has already been made (collectively “the GINN trademark”) and says that the domain name is confusingly similar to the GINN trademark because it incorporates the entirety of the trademark in the domain name with the addition of both the word “lawsuit,” which does nothing to detract from the confusing similarity created by using the word ‘GINN’ and also the generic top level domain (“gTLD”) “.com.”
Complainant then contends, to establish the second element, that the Respondent has no rights or legitimate interests in the domain name because the Respondent must be taken to have registered the domain name with actual knowledge of its use as a trademark, he is not commonly known by the domain name, is not a licensee of the Complainant and does not have permission from Complainant to use the trademark. Nor is the domain name legitimized as a parody or criticism site for in such cases the domain name must on its face give an indication that the site is not the site of the trademark owner but a site for criticism of him, which is not the present case.
Finally, Complainant contends that the domain name was registered and is being used in bad faith. It contends that this is so because the Respondent registered the domain name with actual or constructive knowledge of the GINN trademarks and did so for commercial gain.
Respondent submits first that the disputed domain name is not confusingly similar to the GINN trademarks. This is so, he contends, because the complainant is a real estate developer in the field of golf resort properties, whereas he, the Respondent, is not and this is apparent from his website.
Secondly, Respondent is not making a commercial use of Complainant’s name or the domain name but, rather, is using it for a website that is a “gripe site” with a related bog for investors, such as Respondent who feel they have been defrauded by the Complainant.
Thirdly, Respondent is not using any of the logos, promotional material or the type of print or font of any of the Ginn names or entities. He is not using a picture of a golf course or any Ginn buildings or developments in the website. He is not a competitor of the Complainant, is not a real estate developer or in any way in the golf resort business.
Accordingly, the Respondent contends that there is no way that his website or domain name could be confused with that of Complainant. The Respondent then submits that he has a right or legitimate interest in the domain name, as there is no offering of goods and services at all in connection with the domain name and there is no commercial use whatsoever in using the domain name.
also contends that the domain name is being used solely for non-commercial
purposes, he is not attempting to divert customer from the Complainant and
there is no intent for commercial gain. In support of this contention, the
Respondent adds that the Complainant is a huge real estate developer that sells
land and operates resort communities and golf courses, whereas the Respondent
is not at all in that business and is not and could not be attempting to lure
customers away from complainant.
Respondent then contends that he did not register or use the domain name in bad faith because it resolves to a website that is being used as a legitimate “gripe site” rather than for commercial purposes. Thus, the home page of the web site states:
“This is a forum for investors in Ginn projects to compare notes, get information and keep abreast of pertinent news and litigation.”
Respondent maintains that he, like many other investors in Ginn projects, feel they have been duped and misled. He states that he has spoken with countless investors who have lost their life savings having investing in property that was hotly promoted by the Respondent and which is now worthless. As a result, it is said, there are already several lawsuits that have been filed against the Respondent in State and Federal courts accusing Complainant of violations of Federal and State laws, fraud, deceptive trade practices and operating a Ponzi scheme.
C. Additional Submissions
Complainant contends that contrary to the Respondent’s submissions, Respondent is using the domain name and website for commercial purposes, is confusing the public by using the GINN trademarks in his domain name and that there is nothing in the domain name to indicate that it will lead to a ‘gripe site.’
Respondent notes that Complainant has not contended that the website is being used for commercial purposes and that as a matter of fact it is ‘solely for the purpose of keeping readers abreast of recent articles and litigation having to do with Complainant.’ The Respondent asserts again that the site is not being used or promoted for commercial purposes.
Respondent maintains that a comparison between the contentious website and Complainant’s own websites show how erroneous it is to contend that the former could be confused with the latter.
Respondent also returns to his argument that his motivation has been to help investors who have suffered from having invested through the Complainant.
1. Complainant is the registered owner of several trademarks registered with the United States Patent and Trademark Office (“USPTO”) incorporating the word GINN, two of which consist solely of the word GINN, and all of which are valid and adequate trademarks one for the purposes of the UDRP proceedings. Included in those trademarks is Trademark Registered Number 2,970,328, registered with USPTO on July 19, 2005 for GINN.
2. Respondent registered the domain name <ginnlawsuit.com> on February 14, 2008.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Panel will now turn to discuss these issues. In considering them, the Panel has considered all of the submissions, including the two additional submissions and has been influenced by them in coming to its decision.
The Panel finds that the domain name <ginnlawsuit.com> is confusingly similar to the Complainant’s registered GINN trademark. That is so because the domain name incorporates the whole of the trademark and, in the opinion of the Panel, an objective bystander would be more likely than not to assume that the domain name had some connection with the Complainant and the GINN trademark and would to that extent to be confused between the domain name and the trademark.
It is true, of course, that there is a debate as to whether the addition to a trademark of disparaging words such as ‘sucks’, as in, for example, “airfrancesucks” has the result that a reasonable bystander would not be confused. In support of that argument it is said that no-one would assume that the trademark owner would make such a disparaging remark about itself. It was, no doubt, that notion that the Respondent had in mind when he submitted that: ‘Unless Complainant is promoting the public to sue itself, or trying to convince the public that it is itself some type of con artist, I find it hard to believe the public will think this is a Ginn site.’
However, the preponderance of opinion and, in the view of this Panel, the better view, is that where the whole of a trademark is incorporated in a domain name, the domain name is capable of being confusingly similar to a trademark. That view was expressed by the present panel in Chubb Security Australia PTY Ltd. v. Tahmasebi, D2007-0769 (WIPO Aug. 13, 2007) (holding that for purposes of the first element of the Policy, <chubbsux.com> was confusingly similar to CHUBB trademark), a decision that was recently followed and applied in Sermo, Inc. v. CatalystMD, LLC, D2008-0647 (WIPO July 2, 2008).
In any event, there is one feature of the present case that puts the issue beyond doubt. That feature is that the word added to the trademark, ‘lawsuit,’ is not necessarily disparaging and does not necessarily warn the reader that the domain name is designed to be critical of the trademark owner. In other words, a reader might well think that the lawsuit was a lawsuit brought by, rather than against, the Complainant and hence that any website to which it led might be one where the Complainant was putting its side of the argument or reporting to the market on its progress.
In other words, the addition of a merely generic word does not detract from or weaken the clear confusing similarity that comes when the entirety of a trademark is included in a domain name. This view is consistent with the views expressed in the cases cited by the Complainant, namely Reliv Int v. Kelly, FA 96319 (Nat. Arb. Forum Feb. 5, 2001) and Am. Int’l Group Inc. v. Speyere, FA 481752 (Nat. Arb. Forum June 18, 2005), expressly finding that the addition of the words ‘lawsuit’ or ‘ lawsuits’ to a trademark made the domain name confusingly similar to the trademark.
Use of the website
It is also necessary here to address the main argument of the Respondent which is that it is not only the domain name itself that must be looked at but the website as well. The Respondent argues that he is not using any of the logos, promotional material or the type of print or font of any of the Ginn names or entities and that he is not using a picture of a golf course or any Ginn buildings or developments in the website. Accordingly, he says that to look at the website shows that the domain name would not be construed as an official or approved Ginn domain name and that no reader would find it confusingly similar to the GINN trademark.
The answer to this submission is that the terms of the Policy itself and many decisions on the issue make it clear that a panel considering confusing similarity should not have regard to the content of the website to which the disputed domain name resolves. That is so because the Policy requires a true comparison to be made between the actual words of the domain name and those of the trademark and that requirement in turn dictates that other factors such as the contents of a website must be disregarded. If this were not so and if the website were examined it would mean that the Policy was not being applied, as the Policy calls for the domain name to be identical or confusingly similar to the trademark, not identical or confusingly similar to something other than the trademark.
conclusion has been consistently reached in decisions such as Arthur Guinness Son & Co. (
The Respondent may feel that this view does not give him an opportunity to highlight the actual contents of his website, how its contents are directed to information and soliciting support for other potential class litigants and how different it is from the contents of the Complainant’s own websites.
However, those factors are still relevant and there is ample scope for applying them when paragraphs 4(a)(ii) and (iii) come to be considered, as will be seen later in this decision. It is simply that they are not used when the test in paragraph 4(a)(i), identicality or confusing similarity, is being examined.
It has also been long held that suffixes such as the gTLD ‘.com’ are also disregarded to enable this comparison to be made.
Accordingly, the domain name is confusingly similar to the Complainant’s GINN trademark and Complainant has thus made out the first of the three elements that it must establish.
Rights or Legitimate Interests
Under Policy ¶ 4(a)(ii), Complainant has the burden of establishing that Respondent has no rights or legitimate interests in respect of the disputed domain name.
But by virtue of Policy ¶ 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interest in the disputed domain name, among other circumstances, by showing any of the following elements:
(i) Before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Thus, if Respondent proves any of these elements or indeed anything else that shows that it has a right or interest in the disputed domain name, Complainant will have failed to discharge its onus and the Complaint will fail.
Has Complainant made out a prima facie case?
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show that it does have such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made out a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name. That prima facie case arises from the following circumstances: the domain name consists of the entirety of the Complainant’s trademark GINN with the addition only of the word ‘lawsuit’ and the gTLD ‘.com,’ a construction the Panel has already decided is confusingly similar to the trademark; the Complainant had been using the trademark since 1998, but the Respondent registered the domain name as recently as February 18, 2008; the Respondent must be presumed to have known of the trademark because of his own dealings in real estate with the Complainant; there is no evidence that Respondent is commonly known by the domain name <ginnlawsuit.com> or Ginn; and the Respondent has not received permission or a licence of any sort to use the trademark in a domain name or anywhere else.
That being so, the burden of proof then shifts to Respondent to show on the balance of probabilities that he has a right or legitimate interest in the domain name.
Has Respondent rebutted the prima facie case?
To rebut this prima facie case, Respondent has made the submission that is set out above. It is clear from the submission that Respondent is relying essentially on one ground to rebut the prima facie case, namely that within the meaning of paragraph 4(c)(iii) of the Policy he is making a legitimate noncommercial or fair use of the domain name by using the website as a criticism or ‘gripe’ site; indeed, he says quite specifically that he is using the domain name for a website that is a ‘gripe site’ with a related blog for investors, such as Respondent, who feel they have been defrauded by the Complainant.
He also says that it is set out on the home page of the website that ‘This is a forum for investors in Ginn projects to compare notes, get information and keep abreast of pertinent news and litigation’ and maintains that he, like many other investors in Ginn projects, feel they have been duped and misled. He states that he has spoken with countless investors who have lost their life savings having invested in property that was hotly promoted by the Respondent and which is now worthless. As a result, it is said, there are already several lawsuits that have been filed against the Respondent in State and Federal courts accusing Complainant of violations of Federal and State laws, fraud, deceptive trade practices and operating a Ponzi scheme.
In his supplementary submission he maintains his basic contention, but refines it somewhat to add that the website is ‘solely for the purpose of keeping readers abreast of recent articles and litigation having to do with Complainant.’
The Respondent has therefore raised one of the most contentious issues in UDRP proceedings, which is in essence whether a respondent has a legitimate right and interest to register a domain name and use it for the purposes of a criticism site.
The present Panel had occasion as sole panelist in Chubb Security Australia PTY Ltd. v. Tahmasebi, D2007-0769 (WIPO Aug. 13, 2007) and also on a former occasion as presiding panelist in Asset Loan Co. Pty Ltd v. Rogers, D2006-0300 (WIPO May 2, 2006) to examine this issue at some length and to set out the history of the issue with some useful illustrations from the decisions on this subject.
The issue has also been examined again in Sermo, Inc. v. CatalystMD, LLC, D2008- 0647 (WIPO July 2, 2008) and seems guaranteed to arise for consideration in the future.
In particular, the above three decisions and the other cases referred to in each of them, have drawn attention to the division of opinion between panellists on this issue.
Despite this division of opinion, it seems to be common ground among all panellists that, to succeed with this argument, the website in question must be a genuine criticism site and must not be one that is used for commercial or financial purposes. As it was put, for instance, in Asset Loan Co. Pty Ltd v. Rogers, D2006-0300 (WIPO May 2, 2006):
What is clear, however, from all of the discussion on this issue is that a respondent must not be seen to be using the criticism site for commercial gain. If that is really what the respondent is doing, the conduct is contrary to the plain words of paragraph 4(c)(iii) of the Policy and hence it cannot give rise to a legitimate interest.
The test to be used to apply that principle to the facts of a given case is whether the panel is satisfied that the respondent has brought itself within the wording of the part of paragraph 4 that it relies on. It is true that the overall onus of proving its case in the present proceedings remains on the Complainant, but the Respondent has squarely put his reliance on the notion of the criticism site in issue and it is up to the Respondent to make out that part of his case.”
It is here that the argument of the present Respondent breaks down and is the reason why the Panel has concluded that the Respondent has not rebutted the prima facie case.
It is clear that his website contains a great deal of trenchant criticism of the Complainant. But it also contains more than criticism. The Complainant has annexed to the Complaint some screenshots of the Respondent’s website taken on April 30, 2008. Annex 11, which is the first of the screenshots, shows that the Respondent declares himself to be an investor in Ginn properties and then states that he is ‘seeking other investors that may be interested in exploring or joining in a class action litigation.’ He then goes on to give advice and suggest some avenues for relief.
He then invites the reader to visit his website at <esquiremortgageforeclosure.com>. It is true that the Respondent adds that ‘This is not some sales pitch,’ but there are three aspects of this invitation to visit the website at <esquiremortgageforeclosure.com> which concern the Panel and have been largely instrumental in its decision.
The first is that the ‘esquire mortgage’ website itself is at least in part a ‘sales pitch’ for what are described there as ‘Foreclosure Defense Lawyers’. That is apparent from Annex 12, which is a screenshot from that site, also taken on April 30, 2008.
The second matter of concern is that as a matter of fact, the ‘esquire mortgage’ website is, at least in part, a sales pitch for the Respondent himself. That is so because the link ‘About Us’ leads to ‘Foreclosure Defense Lawyers’ and that section of the website promotes only one lawyer, namely the Respondent. There is no need to set out the description given there of the Respondent’s qualifications and experience, suffice to say that they are extensive and that they range over law, taxation, real estate and investing and that it is a reasonable inference that the Respondent is by means of the website offering to act as an attorney for investors who are minded to seek legal advice or take legal action on unsatisfactory real estate deals in which they have become embroiled.
The third matter of some concern is that the link to <esquiremortgageforeclosure.com> has now been removed from the <ginnlawsuit.com> website which, instead of leading to the Respondent himself as an attorney, now states: ‘My attorney specializes in mortgage law and foreclosure defense and has done this numerous times before.’ It also contains more text tending to convey information and invites the reader to contact him at his email address rather than at that address or via the ‘esquire mortgage’ website as it previously did.
Accordingly, the website, at least in the past, has been used not solely as a criticism or ‘gripe’ site, but as a site to promote the Respondent’s commercial and financial interests. It is not really too fine a point to say that at least one of the purposes of the website has been to solicit work for the Respondent.
What is equally important is that the reader of the ‘esquire mortgage website’ is offered the Respondent’s services as an attorney in mortgage cases whether the prospective Defendant is one of the Ginn companies or any other completely unrelated company. In other words, the Respondent is in effect using the GINN trademark to solicit legal work in proceedings against other companies than Ginn companies.
The Panel should also make it clear that the commercial use that prevents the Respondent from succeeding on this point is not solely that the Respondent is using the website and hence the Complainant’s trademark to promote himself as an attorney, but also the fact that the successful class action and other litigation he is encouraging must themselves personally benefit him directly and financially.
The present situation is therefore similar to that in Asset Loan Co. Pty Ltd v. Rogers, D2006-0300 (WIPO May 2, 2006), where the respondent was also involved in litigation with the trademark owner and had used the domain name, which incorporated the complainant’s trademark, as leverage to extract a better deal from his protagonist. As the panel said on that occasion:
[T]he conclusion reached by the Panel is that on the balance of probabilities the Respondent is in fact using the domain name for a commercial purpose and has done so since he registered the domain name. That puts the Respondent outside the terms of paragraph 4(c)(iii). The commercial purpose is to use the domain name and the website as a form of leverage to bring to an end the litigation in which he is involved with the Complainant and its associates.
It might be said that it is too broad to describe the intention of the Respondent as being to achieve a commercial purpose. However, a study of the claims at issue in the litigation, without in any way making a judgment on their veracity, shows that they concern such a number of properties and such a large sum of money and that they arise from such an essentially business and commercial relationship between parties who were engaged in commerce, that there is no way that the dispute can be described in any way other than commercial. The use being made of the domain name by the Respondent is therefore commercial.
The Respondent is therefore not able to show that he is making ‘a legitimate noncommercial or fair use of the domain name . . . .’
The Panel also agrees with the
submission of the Complainant that, to succeed on
this defence, the domain name must ‘on its face make some indication that the
site is not the site of the service mark holder but is instead a site for the
criticism of the service mark holder.
Not only is that so, but there is an additional omission from the website in this case which militates against the Respondent. That is the absence of a disclaimer on the website or any statement to the effect that it is not connected to or affiliated with the Complainant.
Accordingly, as the Respondent has failed on the only ground relied on to rebut the prima facie case against him, namely that within the meaning of paragraph 4(c)(iii) of the Policy he is making a legitimate noncommercial or fair use of the domain name by using the website as a criticism or ‘gripe’ site, it follows that the Complainant has made out the second of the three elements that it must establish.
The Complainant must prove on the balance of probabilities both that the domain name was registered in bad faith and that it is being used in bad faith: Telstra Corp. Ltd. v. Nuclear Marshmallows, D2000‑0003 (WIPO Feb. 18, 2000).
Further guidance on how to implement this requirement is to be found in Policy ¶ 4(b), which sets out four circumstances, any one of which shall be evidence of the registration and use of a domain name in bad faith, although other circumstances may also be relied on, as the four circumstances are not exclusive. The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out‑of‑pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on‑line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.”
Complainant relies on the general concept of bad faith and also on the provisions of paragraph 4(b)(iii) of the Policy. It is clear that a complainant may rely on circumstances other than those specifically set out in paragraph 4(b) of the Policy. See Orange Glo Int’l, Inc. v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002).
respect to the former ground, the Panel accepts Complainant’s submission that
the evidence shows that Respondent registered the domain name with actual
knowledge of the GINN mark and the fact that in registering the domain name he
was in fact appropriating the mark without permission. Respondent was a purchaser of real estate
from Complainant, had clearly made a close study of the Complainant and its business
activities. As an attorney, moreover, he must be taken to have known of Complainant’s
legal rights to its trademark. Registering and using the domain name in those
circumstances amounts to registering and using it in bad faith and it has been
so held by previous panels: Digi Int’l
Inc. v. DDI Systems, FA 124506 (Nat. Arb. Forum Oct. 24,
2002); Orange Glo Int’l, Inc. v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002); and Am.
Int’l Group, Inc. v.
Finally, the evidence brings the case within the provisions of paragraph 4(b)(iii), namely that the primary motivation of Respondent in registering the domain name was to disrupt the business of Complainant as a competitor. The word ‘competitor’ in this context has been held to mean ‘one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor.’ Gallo v. Hanna Law Firm, D2000-0615 (WIPO Aug. 8, 2000).
Within that meaning, it is difficult to draw any conclusion other than that the Respondent’s primary motivation in registering the domain name and setting up his website was to disrupt the business of the Complainant by encouraging litigation against it, with all of the time, cost and diversion of resources that goes with it, to the detriment of the Complainant.
For all of these reasons the Panel holds that Respondent registered and used the domain name in bad faith and that Complainant has made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ginnlawsuit.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Dated: August 20, 2008
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