We The People, L.L.C. v. WTP Group, LLC
Claim Number: FA0807001217134
Complainant is We The People, L.L.C. (“Complainant”), represented by Hilary
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wethepeople.com>, registered with Network Solutions, Inc.
Each of the undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
The Honourable Neil Anthony
Complainant submitted a Complaint to the National Arbitration Forum
On July 30, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 19, 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
Complainant submitted an Additional Submission on
Respondent submitted an Additional Submission on
On September 5, 2008, pursuant to Respondent’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed The Honourable Neil Anthony Brown QC,
Complainant requests that the domain name be transferred from Respondent to Complainant.
The Complainant alleges that the domain name <wethepeople.com> should no longer be registered with the 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 identical or confusingly similar to the Complainant’s registered trademark WE THE PEOPLE, 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, the Complainant relies on the registered WE THE PEOPLE trademark to which reference has already been made (“the WE THE PEOPLE mark”) and says that the domain name is ‘confusingly similar and identical’ to the trademark.
The Complainant then contends, to establish the second element, that the Respondent has no rights or legitimate interests in the domain name because when it registered the domain name the Respondent knew or reasonably should have known of the Complainant’s registered WE THE PEOPLE mark, had made no commercial use of the mark and is not commonly known by the domain name.
Finally, the Complainant contends that the domain name was registered and is being used in bad faith. It contends that this is so because the Complainant is a provider of legal document preparation services and the Respondent uses the domain name for a website that also refers consumers to legal document preparation services in direct competition with the Complainant, thus bringing the conduct of the Respondent squarely within the provisions of paragraph 4(b)(iv) of the Policy. The Complainant also contends that the conduct of the Respondent amounts to bad faith as it has incorporated the whole of the Complainant’s trademark in the disputed domain name
The Respondent contends, first, that the domain name is not identical or confusingly similar to the trademark. That is said to be so because the trademark consists of a design resembling the US Liberty Bell as well as the words WE THE PEOPLE, thus negating the proposition that the domain name incorporates the whole of the trademark; and also because the Complainant does not have a trademark for the words WE THE PEOPLE alone.
Secondly, the Respondent maintains that it has a right or legitimate interest in the domain name essentially because, before any notice to the Respondent of the dispute, the Respondent made demonstrable preparations to use the domain name in connection with a bona fide offering of services. The demonstrable preparations relied on are that the Respondent applied to register WE THE PEOPLE.COM and several related marks as trademarks in connection with the provision of online information systems and that it hired professional advisers and made administrative arrangements to prepare for the business. The Respondent also maintains that it has been known by the domain name, for it has been known and referred to as ‘Wethepeople.com’ and used the abbreviation ‘WTP’ as its corporate name.
Thirdly, the Respondent contends that the domain name was not registered or used in bad faith. That is so, the Respondent contends, because:
(a) there is no evidence that it intended to try to sell the domain name to the Complainant, but rather there is evidence that it has always declined the opportunity to sell it;
(b) the Respondent could not have acquired the disputed domain name to prevent the Complainant from reflecting the trademark in its own domain name as it, the Complainant, had already reflected its trademark in a domain name, namely <wethepeopleusa.com> by the time the Respondent had acquired the disputed domain name;
(c) the Respondent did not register the domain name primarily for the purpose of disrupting the business of a competitor, as it is not a competitor of the Complainant and it registered the domain name for the purpose of setting up a political, news and current affairs internet portal; and
(d) there has been no attempt by the Respondent to attract Internet users through confusion by promoting on the Respondent’s website services similar to those provided by the Complainant. The registrar of the domain name may have made use of the website for commercial gain, but this was completely without the knowledge or approval of the Respondent and the Respondent has made energetic and ultimately successful attempts to have the registrar’s promotional links removed from the website.
C. Additional Submissions
The panel has had regard to the two Additional Submissions received in a timely manner according to the Forum’s supplemental rule 7 and has taken them into account in its deliberations.
Complainant contends that the Respondent merely took ‘some extremely preliminary steps to start a business under the name WE THE PEOPLE’, was deemed to have abandoned its application for registration of trademarks in that name and never did any actual business under the name. Accordingly, the Respondent cannot be said to have a right or legitimate interest in the domain name and there is no other evidence to the effect that it has such a right or interest.
Secondly, the Complainant contends that even if the advertisements on the website were posted without the knowledge or approval of the Respondent, the Respondent was still a passive holder of the domain name, giving rise to evidence of bad faith use of the domain name within the principle in Telstra Corp. Ltd. v. Nuclear Marshmellows, D2000-0003 (WIPO Feb. 18, 2000). In any event, it is ‘highly likely’ that the Respondent knew of the Complainant’s registered mark and such a likelihood justifies a finding of bad faith.
Respondent reiterates its argument that the Liberty Bell design is integral to the Complainant’s trademark and that the true comparison must be made between the domain name and the entire trademark.
The Respondent then argues that, contrary to the Complainant’s submission, its preparations for the business using the domain name were ‘substantial’ and that even if they were ‘perfunctory,’ they were sufficient to constitute a legitimate interest.
Finally, the Respondent re-iterates its argument that there is no evidence bringing it within any of the declared criteria for establishing bad faith. Moreover, the facts do not justify a finding of passive holding within the principle in Telstra Corp. Ltd. v. Nuclear Marshmellows (supra), for that decision requires all of the circumstances to be considered and when they are so considered in the present case, they do not justify a finding of bad faith.
(a) The Complainant is a large international owner, operator and franchisor of non-attorney legal document preparation services.
(b) The Complainant is the registered owner of trademark registration number 2,075,797 registered on July 1, 1997 with United States Patent and Trademark Office for WE THE PEOPLE plus design.
(c) The domain name <wethepeople.com> was initially registered on January 5, 1998 and was acquired by the Respondent from the then-registrant on January 4, 2000.
Complainant registered the domain name <wethepeopleusa.com> on
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 the 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.
A majority of the Panel finds that the domain name is neither identical nor confusingly similar to the Complainant’s registered WE THE PEOPLE trademark, details of which appear above and which have been established by evidence annexed to the Complaint.
Had the trademark consisted solely of the words ‘WE THE PEOPLE’ it would have been easy to reach the conclusion that the domain name was identical to the trademark, for the domain name would have incorporated the entirety of the trademark with no additional components other than the gTLD suffix ‘.com.’
However, the trademark does not consist solely of those words but includes another substantial element, namely a drawing of the United States Liberty Bell with the historic crack in the bell formed by a representation of two profiles of human heads.
This case therefore raises the difficult question of how a comparison can be made between, on the one hand, a trademark that consists not only of words and, on the other hand, a domain name that must by definition consist only of words.
That question has been considered in a number of UDRP decisions.
The Presiding Panelist has had occasion to consider the issue in two decisions, Deutsche Post AG v. NJDomains, D2006-0001 (WIPO, March 1, 2006) and the case concerning the famous New York restaurant Milos, Costas Spiliadis v. Nicholas Androulidakis, FA 1072907 (Nat. Arb. Forum Oct. 17, 2007). It may be convenient to set out the views expressed on those occasions.
Deutsche Post AG v. NJDomains (supra), was a case where the German Post Office claimed that its trademark, which consisted of the word ‘post,’ but also the representation of a post horn and two arrows, was identical to the domain name <post.com>. The panel found that it was not identical and said:
But, as the Respondent points out, it is important to see exactly what it is that has been registered. The Complainant asserts that the domain name is “identical to the Complainant’s trademarks. ‘Post’ trademark 39540404, however, is not solely for a word, but for a device which is set out in the Response. The device consists of a horn and two arrows as well as the word ‘Post’.
Thus, the trademark is not for the word ‘Post’ at all, but for a logo or, as it is called on the register, a word/figurative mark.”
The question then is whether the domain name is identical or confusingly similar to this word/figurative mark.
That type of question is not always easy to resolve, for the figurative or graphic part of a trademark cannot be translated into a domain name and a true comparison is therefore difficult to make.
There are some obvious similarities between the two expressions, for they both contain the words “Post.” However, that is where the similarities end. Thereafter, it is necessary to make the comparison having regard to how a reasonable bystander would view the domain name and the trademark. The Panel is of the opinion that a reasonable bystander would not regard the domain name as confusingly similar to the trademark because the trademark is figurative and is an entirely different representation from the domain name.
That is so because the trademark is dominated by the very prominent illustration of a horn. It is true that some UDRP panelists have taken the view that in making the comparison presently under discussion, devices and similar figurative depictions should be ignored so that a straight comparison can be made between the words. Thus, the panelist in Sweeps Vacuums & Repair Ctr. v. Nett Corp., WIPO Case No. D2001-0031(sic) said that “graphic elements … not being reproducible in a domain name, need not be considered when assessing identity or confusing similarity.” On the other hand, the panelist in Curvon Corp. v. Lauren Kallareou, WIPO Case No. D2001- 0565 (sic), said that “The Mark . . . is the whole of the composite of design matter and word matter [that] is shown in the registration document,” which is the same view taken by other panelists.
The better view, however, is to look at the overall impression or idea created respectively by the mark and the domain name, the approach that was taken recently in Yell Ltd. v. Ultimate Search, WIPO Case No. D2005-0091 (sic). Applying that test, the overall impression of the trademark in the present case is entirely different from that conveyed by the domain name. The pictorial representation of the horn is such a prominent and dominating part of the trademark that the result is a logo of the horn as well as the word ‘Post’. It is highly artificial to contend that this is a trademark for the word ‘Post’ when it clearly is far more than that.
The German trademark authorities seem to have intended such a conclusion, as the present mark is specifically described as a “word/figurative mark” to distinguish it from other marks which are “word marks.” When seen it that light, it is clear that there is a substantial difference between the domain name and the trademark.
Nor in the opinion of the Panel could a reasonable bystander looking at the domain name, which evokes the common generic word “Post,” be confused into thinking that it was really referring to a coloured logo of a horn with the word Post added to it and the company whose logo it was.
Accordingly, the Panel finds that the domain name is neither identical to nor confusingly similar to the German trademark registered number 39540404.
The view expressed in Deutsche Post AG v. NJDomains (supra) has been expressed in other UDRP decisions and was re-iterated by a panelist faced with the same question in Province of Brabant Wallon v. Domain Purchase, NOLDC, Inc., D2006-0778 (WIPO Oct. 18, 2006). That case concerned the claim of a local authority that a domain name was identical to a trademark consisting of the name of a geographical region, a province of Belgium, but which also included a figurative design that was “a combination of triangles, squares and other shapes forming a design somewhat reminiscent for example of a silhouette of sails.” The panel said that:
The Panel concludes in the present case that the figurative element is an essential element of the Complainant’s mark. It is the most distinctive element in the trademark sense and in the eye-catching sense … the domain name comprises one of two descriptive elements of the Complainant’s trademark and does not include (nor could it) the only distinctive element…. The Panel is not satisfied that the disputed domain name is identical to or confusingly similar to the Complainant’s registered mark.
In Costas Spiliadis v. Nicholas Androulidakis (supra) the comparison was between the domain name
<milos.com> and the relevant trademark which consisted of the word MILOS
and the stylised representation
of a fish, to invoke the notion that
…the representation of the fish dominates the
trademark and is an essential element in both the trademark sense and the
eye-catching sense. Applying the usual test of comparison, a reasonable
bystander confronted by the domain name and the trademark as a whole could not
conclude that a domain name in the single word “milos” was identical to the
trademark, for they are simply not the same. A reasonable bystander would also
not conclude that they were confusingly similar, because they are in fact
dissimilar; that is so because no reasonable person could conclude that the “milos”
of the domain name was referring to a graphic representation of a fish with the
The domain name in the present case is
therefore neither identical nor confusingly similar to the first
The views expressed in those cases are analogous to the present case. The most dominant feature of the trademark is the Liberty Bell; the cracks in the form of the human heads are sharply defined and the words seem something of an appendage. It follows that the domain name is not identical to the trademark as the domain name does not and cannot embody the dominant and most substantial feature of the trademark.
Whether the domain name is confusingly similar to the trademark is, of course, a more difficult matter and not entirely free from doubt. However, to paraphrase Deutsche Post AG v. NJDomain (supra), a reasonable bystander looking at the domain name would not be confused into thinking that it was referring to or invoking the very distinctive logo of a Liberty Bell with the representation of two profiles of human heads together with the words WE THE PEOPLE and the goods and services associated with them.
For those reasons, a majority of the Panel concludes that the domain name is neither identical nor confusingly similar to the trademark and the Complainant has thus failed to make out the first of the three elements that it must establish.[i]
Having made that decision, it would be consistent with the usual practice of panels not to proceed to deal with the other two elements in paragraph 4(a) of the Policy.
However, as the matter just dealt with is a controversial issue on which the Panel itself is split and thus is not entirely free from doubt, the Panel will proceed to consider the remaining two elements to show that, even if the Panel had made a finding in favour of the Complainant on paragraph 4(a), it would not have been able to find in its favour on either of paragraphs 4(b) and (c) and the Complainant would still have been unsuccessful.
Under paragraph 4(a)(ii) of the Policy, 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 paragraph 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interests 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.
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 paragraph 4(a)(ii) of the Policy, 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 paragraph 4(a)(ii) of the Policy 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: although a majority of the Panel has held that the domain name is not confusingly similar to the trademark, it incorporates the word elements of the trademark; the domain name <wethepeople.com> was acquired by the Respondent on January 4, 2000, by which time the Complainant (which had been using its WE THE PEOPLE mark for eleven years) had acquired at least some prominence in its field; and searches conducted by the Complainant show that there is ‘no evidence of the use in commerce of the mark WE THE PEOPLE by respondent in any trade or business.’
That being so, the burden of proof then shifts to the Respondent to show on the balance of probabilities that it has a right or legitimate interest in the domain name.
The Respondent seeks to make out this case essentially by making two arguments.
First, it is alleged that before any notice to the Respondent of the dispute, the Respondent made demonstrable preparations to use the domain name in connection with a bona fide offering of services. It appears that this is an attempt by the Respondent to bring itself within the provisions of paragraph 4(c)(i) of the Policy.
Secondly, the Respondent maintains that it has been known by the domain name, for it has been known and referred to as ‘Wethepeople.com’ and used the abbreviation ‘WTP’ as its corporate name. It appears that this is an attempt by the Respondent to bring itself within the provisions of paragraph 4(c)(ii) of the Policy.
The ‘demonstrable preparations’ relied on are that the Respondent took various steps to advance its intention to establish on the Internet a website devoted to the discussion of political issue and current affairs and that to promote that intention, it applied to register WE THE PEOPLE.COM, WE THE PEOPLE and WE THE PEOPLE.COM and Stylistic People Design and YOUR VOICE ON THE INTERNET as trademarks in connection with the provision of online information systems to facilitate discussions on news, politics, community activities and current events; it hired a trademark attorney, contracted with an internet web designer, formulated company stationery and business cards and paid for those goods and services. The Respondent exhibits to its Response a statement by Dwayne Marshall, the managing member and sole owner of the Respondent, together with documents relating to the trademark applications, draft proposals from a graphic designer and web designer, invoices for the same, other trademark registrations embodying the words ‘WE THE PEOPLE’ and various other documents.
In the course of his statement Mr. Marshall explains that he has been a political activist since College, has been profiled in that respect in Time Magazine, had every intention of using the domain name for providing a political internet discussion site, took the steps referred to and was only obliged to put his plans into abeyance because of financial difficulties.
The Policy permits a registrant of a domain name
to make out a case for rights or legitimate interests if it can be shown that
there were ‘demonstrable preparations’ made to use the domain name for a bona fide offering of goods or services.
The only time limit on such evidence is that the demonstrable preparations must
have been made before the registrant had notice of the dispute: Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) and S.Co.
v. Doms, D2000-0624 (WIPO
Clearly, the Policy does not require evidence that the domain name has actually been used for that purpose, but only that there were some preparations made that can be demonstrated and that the intention was to act bona fide or in good faith.
It is clear that the Respondent’s use of an attorney and having preliminary work done by a graphic designer and a web designer were preparations for using the domain name to offer the services of a discussion website on political issues and current affairs. They are amply demonstrated by the draft work done by the professional advisers referred to and by their invoices. There is no evidence to suggest that the Respondent was acting in bad faith at the time he made his preparations. The preparations were made in 1999 and notice of the dispute was clearly given to the Respondent only in recent times.
Accordingly, a majority of the Panel finds that the Respondent has brought itself within the provisions of paragraph 4(c)(i) of the Policy and has thus rebutted the prima facie finding. The majority thus concludes that Respondent has shown that it has a right or legitimate interest in the domain name.[ii]
As the Complainant has failed to make out the second element that it must establish, namely that in paragraph 4(a)(ii), it is not able to succeed in the Complaint
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, WIPO Case No. D2000‑0003.
Further guidance on how to implement this requirement is to be found in paragraph 4(b) of the Policy, 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.”
There is no evidence to suggest that the conduct of the Respondent brings it within paragraph 4(b)(i), (ii) or (iii) of the Policy and the Complainant does not appear to base its allegations of bad faith on any of those provisions. Indeed, the substance of the evidence is to the effect that, with respect to each of those criteria, the Respondent acted in good faith.
The Complainant has however, argued that the case comes within the provisions of paragraph 4(b)(iv). It maintains that the Respondent uses its website to display the Complainant’s trademark and refer internet users to sites offering the same services as the Complainant, namely paralegal and legal document preparation services, but through competing suppliers and therefore to its detriment.
In reply, the Respondent says that although the website carried links to suppliers in competition with the Complainant, this was done solely on the initiative of Network Solutions, the registrar of the domain name and without the knowledge or approval of the Respondent. The Respondent also argues that it has required Network Solutions to desist from this practice and that the links have now been removed.
In support of its case the Respondent has adduced a great deal of documentary evidence. It is not necessary to refer to this evidence in detail except to say that the Panel finds on the evidence that the intention of the Respondent in registering and using the domain name was to use it for a political information site and not to compete with the Complainant or do it any harm and that the Respondent acted properly to have the competing links removed when they were brought to its notice. In that regard it should be noted that it first came to the notice of the Respondent on July 25, 2008 that Network Solutions had posted promotional links on the website, that shortly after that date the Respondent requested their removal and that on August 14, 2008 Network Solutions discontinued the links.
If Complainant could show that Respondent was knowingly using the
domain name for a pay-per-click (PPC) parking page, the Panel might well have
found that this fact would support an inference of bad faith use and
registration. See, e.g.,
The Panel also finds that the case does not come within the principle of passive holding in Telstra Corp. Ltd. v. Nuclear Marshmellows (supra) because it was not the intention of the Respondent to hold the domain name passively but, rather, it was the original intention of the Respondent to register and use the domain name for a legitimate purpose. Moreover, unlike TELSTRA, which is a famous, unique and distinctive trademark, WE THE PEOPLE is a diluted trademark used by multiple parties for different goods and services, and thus the principles underlying the passive holding decision in Telstra Corp. Ltd. are not applicable here.
Accordingly, the Panel unanimously concludes that the Complainant has not made out the third of the three elements that it must establish to succeed.
REVERSE DOMAIN NAME HIJACKING
The Respondent has submitted that the Panel should find reverse domain name hijacking. Respondent argues that the Complainant with diligent research would or should have known that it would not be able to prove all three elements that it was required to prove. Conclusions reached on such issues, however, all depend on weighing up a number of competing facts. In the present case the Panel’s view is that the Complainant may well have genuinely felt that what it saw as the similarity between the domain name and the word elements of its trademark and the presence of the promotional links on the website justified making the Complaint. In those circumstances, the Panel in the exercise of its discretion does not propose to make a finding of reverse domain name hijacking.
For all of the foregoing reasons, the Panel concludes that relief shall be DENIED.
The Honourable Neil Anthony Brown QC
Honorable Bruce E, Meyerson, Esq David H. Bernstein
Dated: September 19, 2008
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[i] Panelist Bernstein dissents from
this part of the decision. Unlike as in
the Deutsche Post case, where the
word “Post” was generic for postal services and related goods, the word
elements of the mark, WE THE PEOPLE, although an important historical phrase in
[ii] Panelist Bernstein also dissents from this portion of the decision. Although Respondent did provide evidence of past demonstrable preparations, the Policy contemplates that the demonstrable preparations are undertaken for the purposes of actually offering some goods or services at some point. Here, so many years have passed since the preparations described by the Respondent that it appears that Respondent has lost all interest in pursuing the website devoted to discussion of public affairs. Indeed, Respondent concedes that he was forced to abandon the trademark applications and, presumably, the venture, “for financial reasons,” and Respondent does not claim to have any current intent to pursue the venture. In these circumstances, there are serious questions raised as to whether this conduct could support a finding of a legitimate interest. Because this dispute could be resolved based on the third factor, Panelist Bernstein would not have reached the issue; if the issue were determinative, Panelist Bernstein would be inclined to find that purely historical but since abandoned efforts are insufficient to show a legitimate interest under the Policy.