Rask Cycle LLC v.
Claim Number: FA0808001221628
PARTIES
Complainant is Rask Cycle LLC (“Complainant”),
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <raskcycles.com>, registered with Compana, LLC.
PANEL
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.
Jonas Gulliksson as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 21, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 25, 2008.
On August 25, 2008, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <raskcycles.com> domain name is registered with Compana, LLC and that the Respondent is the current registrant of the name. Compana, LLC has verified that Respondent is bound by the Compana, LLC 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 September 3, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 23, 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 postmaster@raskcycles.com by e-mail.
A timely Response was received and determined to be complete on September 23, 2008.
On
October 7, 2008, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the
National Arbitration Forum appointed Jonas Gulliksson as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Complainant has for the intent and purposes relevant to this case argued as follows.
The Complainant has been doing business for over 20 years as “Rask Cycle” and is referred to as “Rask Cycles” by many of its customers and vendors. The Complainant has filed an application for the registering of the trademark “Rask Cycles” which is now being processed.
The Complainant has had the website <raskcycle.com> for 10 years. The Complainant sells motorcycle parts and accessories, some of which are in-house manufactured and sold only through the Complainant’s efforts as “Rask Cycle” and “Rask Cycles.”
The Respondent is using <raskcycles.com> and has been selling advertising space to the Complainant’s competitors. The Complainant has contacted Gary Wayne Tucker who represents the Respondent many times and requested the Respondent would cease and desist such operations. The Respondent has never complied.
The Respondent is directing many of the customers and potential customers of the Complainant to its site. The Complainant has lost a lot of business due to the bad intent of the Respondent and the Complainant is sure that the Respondent has directed many potential customers away from the Complainant and is using <raskcycles.com> for its profit. The reputation of the Complainant as "Rask Cycle" has been written about in national magazines that are dedicated to the custom motorcycles.
The
Complainant is of the opinion that its ownership of “raskcycles” is covered
under common law. “Rask” is the last name of the owners of the Complainant and
it is not a very common name. The Complainant whishes to protect its business
names “Rask Cycle/Rask Cycles”
Factual and legal grounds
This
Complaint is based on the following factual and legal grounds: ICANN Rule 3(b)(ix).
[a] The domain name <raskcycles.com> is identical or confusingly similar to <raskcycle.com> and it has led the consumers to assume that the domain name <raskcycles.com> stands for Rask Cycle, LLC, a well-known business name. The Complainant is losing many customers and it is causing great confusion for the current customers of the Complainant. Many of the Complainant’s customers have keyed in <raskcycles.com> and have found the competitors of the Complainant. Therefore, many new and regular customers have been lost due to this confusion. The Respondent is profiting from the Complainant’s name and business reputation.
The Complainant has also had many customers calling and complaining that they have not received their parts and complained about the Complainant’s website. The customers thought <raskcycles.com> was the business web site of the Complainant. The parts they thought they bought from “Rask Cycle”, was actually bought from one of the Complainant’s competitors listed on <raskcycles.com>.
The Complainant has shown that it has rights in trademarks, and that the domain name is confusingly similar to these marks. Therefore, the Complainant has satisfied the requirements of paragraph 4.a (i) of the UDRP.
[b] The Respondent has no rights or legitimate interest in <raskcycles.com>.
The Respondent is simply using the Complainant’s name “Rask Cycles” with the
intention of profiting from the Complainant trademark name “Rask Cycles”.
The Respondent is using <raskcycles.com> in bad faith and profits from the Complainant’s business name and surname. The Respondent lists competitive dealers of motorcycle parts and accessories of the Complainant on <raskcycles.com>.
The Respondent does not have the name "Rask" as a surname nor does it sell motorcycle parts, accessories or service work, therefore the Respondent has no legitimate interest in the domain name <raskcycles.com>. The Respondent is in no way associated with the motorcycle industry. The surname "Rask" is not the surname of the Respondent.
The respondent has intentionally attempted to attract Rask Cycle customers and
Internet users to the Respondent’s web site and business name for its
commercial gain, by creating a likelihood of confusion with the Complainant’s
mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s
web site of the products and service on Respondent’s web site and business
name.
B. Respondent
The Respondent has stated the following in its Response.
Paragraph 4(a) of the ICANN Policy requires that a
complainant prove each of the following elements to obtain an order for
cancellation or transfer of a domain name:
(1) that 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) that the respondent has no rights or legitimate interests in
respect of the domain name; and, (3) that the domain name has been registered
and is being used in bad faith.
Complaint Has No Registered Trademark and No
Common Law Trademark Rights and Therefore Has No Enforceable Rights Under This Element of the Policy
There are three dates, which are critical to this proceeding. The first is July 1, 2005 when the disputed domain was registered. The second is almost three (3) years later on May 9, 2008 when Complainant filed its trademark application for Rask Cycle and the third is September 3, 2008, when the United States Patent and Trademark Office (“USPTO”) refused registration for that same application on the grounds that the proposed trademark is “primarily a surname” and in support citing In re Hamilton Pharms. Ltd., 27 USPQ2d 1939 (TTAB 1993) (holding HAMILTON PHARMACEUTICALS primarily merely a surname for pharmaceutical products). Exhibit A. While perhaps more applicable to discussion of bad faith, it is also relevant for this element of the Policy as well.
Absent a registered
trademark, the Complainant must provide evidence that it has common law
trademark rights in order to prevail under this element of the Policy -- as
prior panels have recognized “common law” trademark rights as appropriate for
protection under the Policy only if the complainant can establish that it has
done business using the name in question in a sufficient manner to cause a
secondary meaning identifiable to Complainant’s goods or services. Molecular Nutrition, Inc. v. Network News, FA0305000156715 (Nat.
Arb. Forum June 24, 2003) (finding that mere assertions of such rights
are insufficient without accompanying evidence to demonstrate that the public
identifies the complainant’s mark exclusively or primarily with the
Complainant’s products). The Panel in Kay Hill, Ltd. v.
In order to achieve secondary meaning under the UDRP, the panel in Tomlinson Affiliate Serv. Inc. v. Tex. Int’l Prop. Assocs., FA 1138312 (Nat. Arb. Forum Mar. 11, 2008) cited the “WIPO Overview of WIPO Panel Views on Selected UDRP Questions” which states that “a complainant ‘must show that the name has become a distinctive identifier associated with the complainant of its goods and services. Relevant evidence of such ‘secondary meaning’ includes length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition.’”
In Keppel
TatLee Bank Limited v.
“A survey carried out by Euromoney in
June 2000 showed that the Complainant was the 5th largest bank in
As stated in Popular Enterprises, LLC v. American Consumers First et al., D2003-0742 (WIPO November 30, 2003) “the Sole Panelist considers the pending application, together with the extent of prior use and amount of investment by Complainant in the Mark and corresponding website, as sufficient for purposes of this proceeding to establish enforceable common law service mark rights.” A Panel faced with a similar situation cited from a prior decision, Weatherford Int’l, Inc. v. Wells, FA0304000153626 (Nat. Arb. Forum May 19, 2003), for the proposition that “prior UDRP precedent did not support a finding of common law rights in a mark in lieu of any supporting evidence, statements or proof (e.g., business sales figures, revenues, advertising expenditures, number of consumers served, trademark applications or intent-to-use applications).” see Wigwam Mills, Inc. v. Texas International Property Associates, FA0701000903891 (Nat. Arb. Forum March 20, 2007).
Here, however, Complainant has made no such showing nor has it offered proof to show how it has come by the mark it is claiming. Unlike the evidence of the nature submitted by Complainant in Kessel to establish its common law mark, Complainant in this dispute has submitted no evidence of any kind to establish its purported trademark. Not one proof of a sale, not one invoice of any sales, no invoices showing any advertising in any medium, no revenues at all. The Complaint is resoundingly silent on this issue.
Respondent has rights and a legitimate
interest in the disputed domain name
The second element Complainant must prove is that Respondent has no rights or legitimate interest in the name. The Complaint falls silent here as well. In a recent three Panel decision, the Panel discussed whether click-through sites are a bona fide offering of goods and services, the same argument made here in the negative by Complainant. In Super Supplements, Inc. v. Vertical Axis, Inc., D2008-0244 (WIPO May 13, 2008), the Panel noted that many “panels have found that the provision of such click-through services do constitute a bona fide offering of the service unless the bona fides of the offering is tainted by evidence of bad faith” and went on to note “In the opinion of the majority of the Panel such services are now a common business practice and there is no evidence of bad faith in Respondent’s adoption and use of the disputed domain name in providing such a service.” As will be discussed more fully below, there is no bad faith registration to be found. The Super Panel was also critical of a prior decision (The Evening Store.com, Inc. v. Henry Chan, WIPO Case No. D2004-0305) in noting that the Panel in that case did not take into account that “the words concerned were in any way descriptive or generic.” As Exhibit A also shows, the USPTO has also required Complainant, if it wishes to proceed, to disclaim the word “cycles” because “such wording appears to be generic in the context of applicant’s goods and/or services.”
Respondent contracts with Hitfarm which connects its own websites to the domain name to offer a legitimate business of targeted advertising searches that are legal everywhere in the world and are actually undertaken in connection with industry leaders Google and Yahoo. Second, the links in question are provided pursuant to Yahoo or Google’s terms and are triggered by search requests entered by computer users. There is no intent to target Complainant, but to provide advertising for users seeking motorcycles as a glimpse of the disputed domain will show. Respondent has no control over what terms advertisers bid on at Google or Yahoo and what terms appear on its website. In any event, even if Complainant’s claims were true – which they are not – panels have recognized that the domain name holder is not responsible for the potentially offending contend where they have contracts with third parties, such as Google or Yahoo, that control that content. Admiral Insurance Services v. Dicker, WIPO Case No. D2005-0241 (“the Panel accepts that the terms under which Google makes its Adsense advertisements available do not permit the Respondent to control them . . .”); Experimental Aircraft Association (EAA) v. EAA.COM, NAF Case No. 206309 (“brief appearance of aviation links on respondent’s websites was automatically provided by a pay-per-click search engine provider…”). In this case, Hitfarm provides an email link so that third parties can complain about advertising on the websites and Hitfarm has universally removed such offending posts upon notice. Complainant has never made a complaint about the content of the web pages to Hitfarm. This is evidence that Complainant simply wants to hijack Respondent’s domain, which has been in operation for almost three years prior to any comment by Complainant.
Complainant cites no authority or rationale to
justify this parasitic interference in the free exchange of information and
opportunity and ICANN panels repeatedly recognize that such limitations are
unnecessary. Respondent may fairly use descriptive or generic terms as well as
surnames as a commercial domain name, or typos of such terms, regardless of
whether they are federally-registered. Eastbay Corporation v. VerandaGlobal.com,
Inc., FA0203000105983 (NAF May 20, 2002) (declining to transfer
<finalscore.com> notwithstanding Complainant’s incontestable federal
registration for “Final Score”); Energy
Source Inc. v. Your Energy Source, FA96364 (NAF Feb. 19, 2001 (respondent
had rights and legitimate interests in domain where respondent showed the
domain name was comprised of generic and/or descriptive terms). Indeed, common words and generic terms are
legitimately subject to registration as domain names on a “first-come,
first-served basis.” Zero International
Holding GmbH v. Beyonet Services, WIPO Case No. D2000-0161 (May 12, 2000); Miller
Brewing Company v. Yunju Hong, FA0309000192732 (NAF Dec. 8, 2003); Successful Money Mgmt. Seminars, Inc. v.
Direct Mail Express, supra; Churrascaria
Porcao v. Prime Products International, D2001-0535 (WIPO July 6, 2001).
The fact that advertising revenues may be generated by Respondent’s activity
demonstrates a legitimate interest. As
stated by the panel in GLB Servicos
Interativos S.A. v. Ultimate Search Inc., D-2002-0189 (WIPO May 29, 2002),
“Respondent is accused of using what amounts to a generic phrase to connect
these generic concepts with search keywords in order to provide advertisers
with targeted customer traffic. This is
a legitimate business . . . .”
In fact, the principal that the mere ownership of a common term domain should, in and of itself, establish the owner’s rights and legitimate interest has been recognized by several ICANN panels. As one such panel explained:
Where the domain name and trademark in question are generic—and in particular where they comprise no more than a single, short, common term—the rights/interests inquiry is more likely to favor the domain name owner. The ICANN Policy is very narrow in scope; it covers only clear cases of “cybersquatting” and “cyberpiracy,” not every dispute that might arise over a domain name. See, e.g., Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy (Oct. 24, 1999).
Shirmax Retail Ltd. v. CES Marketing, Inc., Case No. AF-0104 (e-Resolution March 20, 2000) (THYME.COM). See also General Machine Prods Co. v. Prime Domains, Case No. 92531 (NAF Jan. 26, 2000) (CRAFTWORK.COM); Car Toys, Inc. v. Informa Unlimited, Inc., Case No. FA93682 (NAF Mar. 20, 2000) (CARTOYS.COM); CRS Technology Corp. v. Condenet, Inc., Case No. FA9347 (NAF March 28, 2000) (CONCIERGE.COM); Nicholas V. Perricone, M.D. v. Martin Hirst, Case No. FA0095104 (NAF Sept. 1, 2000) (‘WRINKLECURE.COM); Zero International Holding GmbH & Co. Kommanditgesellschaft v. Beyonet Services and Stephen Urich, supra (ZERO.COM); Primedia Special Interest Publications, Inc. v. John L. Treadway, (WIPO Case No. D2000-0752, Aug. 21, 2000) (SHUTTERBUG.COM); First American Funds, Inc. v. Ult.Search, Inc., Case No. D2000-1840 (WIPO April 20, 2001) (FIRSTAMERICAN.COM) Council of Better Business Bureaus, Inc. v. Server 100; Case No. D2006-0443 (WIPO June 22, 2006) (BETTERBUSINESSONLINE.COM). Accordingly, given the generic and/or descriptive nature of these words, Respondent has legitimate interests in the domain names and Complainant has failed to meet its burden under Paragraph 4(a)(ii) of the ICANN Policy.
Complainant
has not demonstrated that the disputed domain name was registered and is being
used in bad faith
As noted in Section A above, the disputed
domain was registered almost three (3) years prior to the filing of the
Complainant’s since refused trademark application. Thus, under the Policy, which requires proof
that the domain was both registered
and is being used in bad faith, the Complainant must provide proof that it had
a common law trademark at the time the disputed domain was registered. There is
no discussion whatsoever in the Complaint that Respondent was aware of
Complainant at the time the disputed domain name was registered and Respondent
had no knowledge of Complainant at that time.
Complainant is located in a town of some 2,000 people (as of the 2000
Census) located some 1,200 miles away from Respondent. The Complaint is, again, silent on this issue
but rather reiterates in fifty-six (56) words the Policy itself. The Policy requires
proof, not assertions or merely cutting and pasting the Policy into the
Complaint. Absent such knowledge, there can be no bad faith registration – As
one Panel asked “If the registrant is unaware of the existence of the trade
mark owner, how can he sensibly be regarded as having any bad faith intentions
directed at the complainant?” The Way International, Inc. v. Diamond
Peters, D2003-0264 (WIPO May 29, 2003).
In a previous decision in favor of Respondent, the Panel noted “However,
Complainant has provided no evidence that it had acquired, through use, common
law rights in its trademarks prior to the registration by Respondent of the <wildingwallbeds.com> domain name in 2005. This makes it
difficult, to put it mildly, to show that Respondent was then aware of
Complainant or of its marks.” Wall Beds By Wilding, LLC, d/b/a Wilding
Wall Beds v.
A recent decision by a three-member WIPO Panel might help shed some light on the issue of bad faith as regards this dispute. In McMullen Argus Publishing Inc. v. Moniker Privacy Services/Jay Bean, MDNH, Inc., D2007-0676 (WIPO July 24, 2007), the Panel was faced with a dispute involving the domain, <europeancar.com>. In finding against bad faith registration the Panel noted that “pay-per-click websites are not in and of themselves unlawful or illegitimate” and that the Complainant “has provided little evidence (as opposed to allegations of counsel) that Respondent selected the disputed domain name for a free ride upon Complainant’s mark.” The same holds true here. The Panel in McMullen noted “Complainant has made no showing that consumers and Internet users have been or are likely to be confused or to associate Respondent’s services with Complainant’s.” Nor has there been such a showing here other than mere unsubstantiated allegations.
A previous decision cited by the McMullen Panel discussed this very issue
and noted that unless a trademark is targeted by a domain, pay-per-click
revenue does “not constitute evidence of bad faith registration or use.”
A complainant must proffer evidence that demonstrates that respondent has specifically intended to confuse consumers seeking out complainant. There is no such proof here. In Drew Bernstein v. Action Advertising, Inc., No. D2000-0706 (WIPO Sept. 28, 2000) the panel explained:
[T]he term "lip service" used in the Respondent’s Domain Name is not an arbitrary or coined term nor a distinctive trademark, but a common English phrase susceptible of more than one meaning or connotation, which can be and is used in many commercial contexts . . . . For this reason, the Panel finds that the evidence is insufficient to establish bad faith registration and use under Paragraph 4(b)(iv) of the Policy.
See also, Canned Foods, Inc. v Ult. Search Inc., supra (“There are dozens of other enterprises that use the term "Grocery Outlet," therefore one cannot conclude that Complainant must necessarily be the special target); Lumena s-ka zo.o. v. Express Ventures LTD, Case No. 94375 (NAF May 11, 2000) (“no direct evidence that Respondent registered the [generic] domain name with the intent of capitalizing on Complainant’s trademark interest”). In this case, the Respondent had no actual knowledge of Complainant’s business and Panels have recognized that mere registration without actual knowledge does not impute a finding of bad faith. New Jersey Divorce Center, Inc. v. iGenesis Limited, Claim Number: FA0510000584783 (NAF December 14, 2005). (Stating “a finding of bad faith by its nature entails that there be some intentional act on the part of the party purported to be acting in bad faith such that that party reasonably believes or should believe it is offending the rights of another.”).
Respondent did not register the disputed domain name to sell to Complainant or any other party nor has there been any such allegation by Complainant.
DISCUSSION
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.
According to the Policy ¶ 4(a)(i), common law rights are sufficient to establish rights in a mark. The ICANN dispute resolution policy is thus broad in scope in that the reference to a trademark or service mark in which Complainant has rights means that ownership of a registered mark is not required and unregistered or common law trademark or service mark rights will suffice to support a domain name Complaint under the Policy. See British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000).
Complainant has as grounds for the Complaint stated
that it has used the name Rask Cycle as a business identifier for more than
twenty years. Although the Panel is satisfied that Complainant has rights in
that business identifier, Complainant must have asserted rights in a mark
(trademark or service mark). It is undisputed that Complainant had no registered
trademark (albeit an application was later filed) when the disputed domain name
was registered July 1, 2005. Complainant is therefore required to substantiate
its claim that it has acquired sufficient rights in the mark through common law
under the Policy. To establish common law rights in a mark requires that Complainant
show that its mark has acquired secondary meaning. In other words, Complainant
must establish that the public associates the asserted mark with its goods and
services.
Respondent contends that Complainant has failed to prove that it has done business using the name in question in a sufficient manner to cause a secondary meaning identifiable to Complainant’s goods or services, citing Molecular Nutrition, Inc. v. Network News, FA 156715 (Nat. Arb. Forum June 24, 2003) (finding that mere assertions of such rights are insufficient without accompanying evidence to demonstrate that the public identifies the complainant’s mark exclusively or primarily with the Complainant’s products).
Relevant evidence of secondary meaning includes
length and amount of sales under the mark, the nature and extent of
advertising, consumer surveys and media recognition. See Amsec Enter., L.C. v. McCall, D2001-0083
(WIPO, April 3, 2001).
Complainant has as evidence of an established common law right submitted an application for registration of the word mark RASK CYCLES, filed May 9, 2008, a magazine article covering Complainant’s business without date of publication, as well as a certificate of registration from the Pennsylvania Department of Revenue with the name RASK CYCLE. Furthermore, Complainant has submitted evidence of its domain name registration of <raskcycle.com> from 1998 together with a copy of an invoice stating the name RASK CYCLES and mail receipts with the name Rask Cycles.
The Panel finds that Complainant
has failed to establish common law rights in the RASK CYCLES
mark, as Complainant has provided no relevant evidence of secondary meaning or
use in connection with the provision of goods or services. See
Weatherford Int’l, Inc. v. Wells, FA 153626 (Nat. Arb. Forum May 19,
2003) (“Although Complainant asserts common law rights in the WELLSERV mark, it
failed to submit any evidence indicating extensive use or that its claimed mark
has achieved secondary source identity . . . [Complainant’s
claim that it is well known] is a finding that must be supported by evidence
and not self-serving assertions.”); see also Molecular Nutrition, Inc. v. Network News &
Publ’ns, FA 156715 (Nat. Arb. Forum June 24,
2003) (finding that the complainant failed to establish common law rights in
its mark because mere assertions of such rights are insufficient without
accompanying evidence to demonstrate that the public identifies the
complainant’s mark exclusively or primarily with the complainant’s products); see
also Kip Cashmore v. URLPro, D2004-1023
(WIPO Mar. 14, 2005) (finding no
common law rights where the complainant did not present any credible evidence
establishing acquired distinctiveness).
Complainant has also, as it may be understood,
claimed ownership of the mark Rask Cycles on the basis that it contains the
uncommon surname of the owners of the Complainant. In previous decisions it has
been established that in order for a mark comprising a personal name to acquire
secondary meaning, the personal name must have been used in connection with
services or a business as referring to a specific source. See Ahmanson Land Co.
v. Save Open Space and Elec. Imaging Sys.,
D2000-0858 (WIPO Dec. 4, 2000) (“A mark comprising a
personal name has acquired secondary meaning if a substantial segment of the
public understand the designation, when used in connection with services or a
business, not as a personal name, but as referring to a particular source or
organization.”); see also Bruus-Jensen v. Adamsen, D2004-0458
(WIPO Sept. 29, 2004) (holding that the complainant had not
acquired common law rights in his personal name as a reference to a particular
source or organization).
Complainant has provided no relevant evidence of
secondary meaning or use of that name in connection with the provision of goods
or services so that the designation is understood by a substantial segment of
the public as a reference to a particular source. In
the absence of any submitted evidence the Panel therefore finds that
Complainant has failed to establish common law rights in the RASK CYCLES
mark, on the basis of the name Rask.
Because Complainant has failed to establish the element of rights in the mark under
¶ 4(a)(i)
of the Policy, further inquiry into the remaining elements is unnecessary. See Creative
Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the
complainant must prove all three elements under the Policy, the complainant’s
failure to prove one of the elements makes further inquiry into the remaining
element unnecessary); see also Hugo Daniel Barbaca Bejinha v. Whois Guard
Protected, FA 836538 (Nat. Arb.
Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or
legitimate interests or its registration and use in bad faith where the
complainant could not satisfy the requirements of Policy § 4(a)(i)).
DECISION
Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Jonas Gulliksson,
Panelist
Dated: October 21, 2008
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