National Arbitration Forum




Kennedy Enterprises, Inc. v. John Neetz, individually and trading as Bigtime Limited

Claim Number: FA0906001266923



Complainant is Kennedy Enterprises, Inc. (“Complainant”), represented by Thomas W. Beaver, of Rabenold, Koestel & Scheidt, P.C., Pennsylvania, USA.  Respondent is John Neetz, individually and trading as Bigtime Limited (“Respondent”), represented by John Berryhill, Pennsylvania, USA.



The domain names at issue are <> and <>, registered with, Inc.



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.


Timothy D. O’Leary as Panelist.



Complainant submitted a Complaint to the National Arbitration Forum electronically on June 5, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 8, 2009.


On June 8, 2009,, Inc. confirmed by e-mail to the National Arbitration Forum that the <> and <> domain names are registered with, Inc. and that the Respondent is the current registrant of the name., Inc. has verified that Respondent is bound by the, Inc. 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 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 6, 2009 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 and by e-mail.


A timely Response was received and determined to be complete on July 6, 2009.


An Additional Submission was received timely on July 13, 2009.


A Response to Complainant’s Supplement was timely filed.   


On July 20, 2009, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Timothy D. O’Leary as Panelist.



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




I. Complainant’s Contentions


            A. Identical and/or Confusingly Similar


KEI’s “trademark” on which this Complaint is based is “,” and “” These marks are not registered under either the Lanham Act or the Pennsylvania Trademark Act. However, each qualifies as a “mark” under the Pennsylvania Trademark Act on the basis of which this Complaint is filed, as well as injunctive action which can be filed under state law to restrain Respondent’s use of its confusingly similar domain name. See, 54 Pa. C.S.A. § 1102.


The Respondent’s domain name is nearly identical or confusingly similar to Complainant’s domain names, differing primarily by only the domain extension.


Complainant has been using its domain names continuously since 2004.


Respondent only registered its domain name on March 11, 2009.


The Pennsylvania Trademark Act, 54 Pa. C.S.A. § 1102, gives absolute preference to the first trademark placed in use, regardless of which of two competing marks is registered first, or regardless of whether the prior mark is registered or not.


Claimant asserts common law rights in these “Domains.”  Claimant claims Respondent is in violation of the following:


The Pennsylvania “Unfair Trade Practices and Consumer Protection Act,” 73 P.S. 201-2(4), under which the following are defined as


            (4) “UNFAIR METHODS OF COMPETITION” and “UNFAIR OR DECEPTIVE ACTS OR PRACTICES” mean any one or more of the following:


            (i) Passing off goods or services as those of another;


            (ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;


            (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another;


* * *

            (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.




The Pennsylvania “Trademark Act,” 54 Pa. C.S.A. § 1101, under Section 1123(a)(2) of which the following constitutes




            (a) GENERAL RULE.-- Subject to the provisions of section 1126 (relating to common law rights), any person who shall:


* * *


            (2) reproduce, counterfeit, copy or colorably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in connection with the sale or other distribution in this Commonwealth of such goods or services; shall be liable to a civil action by the registrant for any or all of the remedies provided in section 1125 under paragraph (2) the registrant shall not be entitled to recover profits or damages unless the acts have been committed with the intent to cause confusion or mistake or to deceive.


            B. Rights or Legitimate Interests


The Respondent (domain-name holder) has no rights or legitimate interests in respect of its domain name as opposed to the Complainant’s domain names because:


(a)        Complainant has been using its domain names continuously since 2004;


(b)        Respondent only registered its domain name on March 11, 2009.


The Pennsylvania Trademark Act, 54 Pa. C.S.A. § 1102, gives absolute preference to the first trademark placed in use, regardless of which of two competing marks is registered first, or regardless of whether the prior mark is registered or not.


            C. Registration and Use in Bad Faith


Respondent’s domain name should be considered as having been registered and being used in bad faith because:


Respondent has registered the domain name primarily for the purpose of disrupting the business of the Complainant, and/or


Respondent, by using its domain name, 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 marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.


II. Respondent’s Contentions


            A. Identical and/or Confusingly Similar


This Proceeding concerns two domain names which are immediately apparent as being geographically descriptive of wedding related services in Berks County, Pennsylvania, which is generally situated in the southeastern part of Pennsylvania, north of the City of Philadelphia.  The term at issue here consists of a geographic place name and a generic indication of services provided in connection with weddings.


The Complainant has provided no evidence of registration of its alleged rights, but instead claims rights under the Pennsylvania Trademark Act, 54 PaC.S.A. §1102 et seq. Oddly, the Complainant cites to the “definitions” portion of the Act (Complainant’s Exhibit G), which states:


            “MARK” Includes any trademark or service entitled to registration under this chapter whether registered or not.” (Emphasis Added)


but such definition merely begs the question of whether the Complainant’s alleged unregistered mark would be “entitled to registration” under the Act. It would not. Expressly noted among conditions for registration in 54 Pa. C.S. § 1111(5)(ii) a proposed mark will not be entitled to registration in Pennsylvania if it:


            (5) Consists of a mark which:


            (ii) when used on or in connection with the goods and services of the applicant is primarily geographically descriptive or deceptively misdescriptive of them

            (Emphasis Added)


Accordingly, the Complainant’s citation to the Pennsylvania Trademark Act is unavailing since it is immediately apparent, and no doubt the Panel anticipated as a defense, that the provision or advertising of wedding related services in the vicinity of Berks County is of course primarily geographically descriptive of such services.


The Pennsylvania Trademark Act is unexceptional in express denial of rights in primarily geographically descriptive terms. Under the similar provision of the Lanham Act, registrability is ordinarily denied to geographic terms combined with descriptive or generic matter, as such matter does not alter the primary geographic significance, as noted in the USTPO Trademark Manual of Examining Procedure (TMEP) 1210.02(c)(ii):


            1210.02(c)(ii) Geographic Terms Combined With Descriptive or Generic Matter


Generally, the addition of a highly descriptive or generic term to the name of a geographic place does not alter its primarily geographic significance. In re JT Tobacconists, 59 USPQ2d 1080 (TTAB 2001) (MINNESOTA CIGAR COMPANY primarily geographically descriptive of cigars); In re Carolina Apparel, 48 USPQ2d 1542 (TTAB 1998) (CAROLINA APPAREL primarily geographically descriptive of retail clothing store services); In re Chalk’s International Airlines Inc., 21 USPQ2d 1637 (TTAB 1991) (PARADISE ISLAND AIRLINES held primarily geographically descriptive of the transportation of passengers and goods by air); In re Wine Society of America Inc., 12 USPQ2d 1139 (TTAB 1989) (THE WINE SOCIETY OF AMERICA held primarily geographically descriptive of wine club membership services); In re California Pizza Kitchen Inc., 10 USPQ2d 1704 (TTAB 1988) (CALIFORNIA PIZZA KITCHEN (“PIZZA KITCHEN” disclaimed) held primarily geographically descriptive of restaurant services); In re Cambridge Digital Systems, 1 USPQ2d 1659 (TTAB 1986) (CAMBRIDGE DIGITAL and design (“DIGITAL” disclaimed) held primarily geographically descriptive of computer systems and parts thereof).


Under the UDRP, similar claimed marks have repeatedly been held to be primarily geographically descriptive, practically defining a class of such disputes, as in:


Sacramento Home Loans, Inc. v. MH Networks LLC & Alan Martin FA 241937 (Nat. Arb. Forum April 20, 2004).


Furthermore, Respondent has merely registered a geographic term alongside terms that describe the services it is providing at the disputed domain name. Since geographic terms are not afforded protection under the Policy, the Panel finds that Complainant cannot prevail under Policy ¶ 4(a)(i). See Port of Helsinki v. Paragon Int’l Projects, Ltd., D2001-0002 (WIPO Feb. 12, 2001) (finding that ICANN Policy does not provide protection for geographic names); see also Neusiedler Aktiengesellschaft v. Kulkarni, D2000-1769 (WIPO Feb. 5, 2001) (“Geographic names can not be monopolized by registering a trademark or company name. The use of geographic terms as such in domain names or otherwise by third parties is generally possible despite a trade-mark registration.”); see also 15 U.S.C. § 1052(e)-(f); Lanham Act § 2(f) (A term is generally not viable for registration if it is “merely descriptive” when applied to the goods of the applicant.)


Twin City Garage Door Co. c/o Lisa Donabauer v. Express Garage c/o Doron Kim, FA 506435 (Nat. Arb. Forum Aug. 8, 2005).


The Panel finds that the term “Twin City” is merely a geographical descriptive term which, when combined with “Garage Door Company” does not give rise to a mark that is capable of acquiring a secondary meaning in the marketplace. It is not different in principal from the facts in Sacramento Home Loans, Inc. v. MH Networks LLC, FA 241937 (Nat. Arb. Forum, Apr. 20, 2004).


There is utterly nothing in the Complaint suggesting that Complainant’s alleged “mark” “Berks County Weddings” is in any respect distinguishable from “Maine Bait”, “Alaska Spa”, “Sacramento Home Loans”, “Florida Tourism”, “Twin City Garage Doors” and other combinations of a geographic and generic terms which are routinely not recognized as distinctive trade or service marks under the Policy. The Panel will note in such disputes that quite often the complainant’s corporate name consists of the asserted mark, such as “Maine Bait Company” and other trade names noted above, which might make for a marginally stronger case, but which is not present here and routinely rejected in any event. The Complainant here, “Kennedy Enterprises Inc.” apparently believes that by registering a large number of internet domain names of the form <location>, that it has secured trade or service mark rights in the provision or advertising of wedding related services in a number of counties or other locations in the United States. Mere registration and operation of a descriptive domain name does not confer trade or service mark rights. Indeed, such descriptive domain names are valued precisely because they describe the goods or services to prospective consumers seeking goods or services matching that description, but do not distinctively identify such goods or services as emanating from an exclusive vendor thereof.


As if the point required more precision, the specific word “wedding” conjoined to a geographic term has been rejected under the Policy as producing anything more than a descriptive term:


Keystone Publishing, Inc. v., D2004-0725 (WIPO June 16, 2006). 


As to whether the Complainant had acquired common law trademark rights in the disputed domain name by the time the Complaint was filed, the Panel finds the Complainant’s proof is insufficient. The main problem is that the mark UTAHWEDDINGS.COM used to sell wedding services in the State of Utah via the Internet is utterly descriptive.


Here, the Complainant has avoided the effort of even attempting to demonstrate acquired distinctiveness by submitting the type of evidence which was submitted, and rejected, in the dispute.


Finally, the Complainant itself uses the term at issue in a purely descriptive sense. Attached hereto as Exhibit A is a print-out of the Complainant’s corresponding home page at As shown therein, and as can be verified using the Internet Archive, the Complainant has long used repetitive descriptive text and meta-tags in order to increase the search engine relevance of the site. Such text includes, “Planning your Berks County or reading pa wedding is easy using the area’s best resource”. In other words the Complainant considers a “Berks County Wedding” or “Reading PA Wedding” to be a matrimonial event which takes place in these locations (Reading, PA is named after William Penn’s namesake home town of Reading, Berkshire County, England, and is Berks County’s largest municipality).


Accordingly, the Complainant has not proven the first element of the Policy.


            B. Rights or Legitimate Interests


The second criterion of the Policy requires the Complainant to show that the Respondent lacks legitimate rights and interests in the domain name. Such rights and interests need not consist of a trade or service mark right, but include such equitable considerations as preparations for use, and bona fide use of, the domain name.


Respondent has registered and is using in the same fashion, other domain names and web sites with the same “wedding” generic term including <>, <>, <>, and <>. The Respondent is merely using a geographic location along with the generic term wedding, and uses such domain names to provide directories of advertisers providing wedding-relevant goods and services in the designated geographic areas.


As noted by the Complainant, the alleged mark is not registered under the Lanham Act nor the Pennsylvania Trademark Act, and the Respondent had no duty of constructive notice of the Complainant’s claimed rights. Furthermore, even if the Respondent had actual notice of the Complainant’s use of similar designations in other domain names, the Respondent would not believe and does not believe the Complainant is entitled to claim rights in a primarily geographically descriptive term.


The Complaint is remarkable in that the Complainant asserts virtually no factual allegations in support of the second or third elements of the UDRP. The only activity of the Respondent described in the Complaint demonstrates that the Respondent registered its domain names less than five years after the Complainant registered its domain names which, if anything, soundly demonstrates that the Complainant cannot claim to have made five years of continuous, substantially exclusive use of the term here at issue, as would be the minimal requirement to attempt to demonstrate acquired distinctiveness under Section 2(f) of the Lanham Act.


There is nothing illegitimate about using a descriptive term to advertise goods and services which are described by that term. Accordingly, the Respondent is not only has legitimate rights in the use of the domain name for a bona fide offering of goods and services prior to notice of a dispute, but the Complainant does not allege or show facts demonstrating otherwise.


Accordingly, the second criterion of the Policy is not proven.


            C. Registration and Use in Bad Faith


The final criteria required to be proven by the Complainant is that the domain name was (a) registered in bad faith, and (b) used in bad faith by the Respondent. The “bad faith” criterion is an element of specific intent directed toward the Complainant, and arising from rights known by Respondent to belong to the Complainant, as shown in the Policy examples all of which relate, at their basis, to a conscious and willful exploitation of the Complainant’s rights.


Here, the Complainant makes no factual allegations whatsoever, but merely recites the Policy. As noted in Channel Intelligence, supra, merely reciting the Policy is to state things which the Complainant might consider showing to exist in the present circumstances. From reading the Complaint, one would not know that the Respondent actually provides a directory of wedding related goods and services in the Berks County area, and provides maps to such advertisers and relevant contact information. While of course this is precisely the type of information one would expect to find at a website denominated by “Bucks County Weddings”, the Complainant avoids disclosing the apparent reality of this Proceeding by avoiding any discussion of the Respondent’s use of the domain names at issue.


The Complaint was filed by presumably competent counsel, who is perfectly able to read the Policy and determine what the Policy requires to be demonstrated in order to obtain relief. While the Respondent does not believe that the Complaint would succeed on the basis of whatever substantive evidence the Complainant could adduce, the Complainant in this Proceeding has not even tried. This is not a mere failure to prevail on the evidence. The lack of evidence or substantive argument on elements required to be shown cannot be understood as anything other than a frivolous attempt to harass the domain name registrant, and should be deemed an abuse of the Policy.


For the foregoing reasons, the Respondent submits the Complainant has failed to demonstrate bad faith registration of the domain names, and that the Complainant has not even attempted to demonstrate bad faith registration of the domain name, thus indicating the Proceeding to have been brought in a classic example of abuse of the Policy.


III. Complainant’s Supplemental Submission


            A. Identical and/or Confusingly Similar


Respondent asserts that Complainant’s domain names would not be entitled to trademark registration. (Resp., p. 2)


            (1) First, Respondent cites the Pennsylvania Trademark Act, Sec. 1111(5)(ii) (54 Pa. C.S.A. § 1111(5)(ii)), which prohibits registration of any mark which “is primarily geographically descriptive....” However, Exhibit “H” to the Complaint, which constituted a complete copy of Section 1111, reveals that the prohibition of registration for descriptive marks does not “prevent the registration of a mark used in this Commonwealth by the applicant which has become distinctive...” and authorizes registration on the basis of distinctiveness for marks which have been in “continuous use ... for the five years before the date on which the claim of distinctiveness is made.” (54 Pa. C.S.A. § 1111(5))


            (2) Second, the Lanham Act, not surprisingly, has been interpreted numerous times to provide protection for descriptive marks which acquired distinctiveness through secondary meaning. See, e.g., Commerce Nat’l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir. 2000), referred to below, and cases cited therein.


            (3) Third, Respondent’s assertions that “Under the UDRP, similar claimed marks have repeatedly been held to be primarily geographically descriptive...” is itself misleading because distinctiveness acquired through secondary meaning is recognized in this arena as well. See, e.g., Zee TV USA, Inc. v. Aamir Siddiqi c/o, FA 721969, in which NAF noted:


Complainant is not required to own a valid trademark registration for the ZEE CINEMA mark in order to demonstrate its rights in the mark pursuant to Policy ¶ 4(a)(i). See British Broad Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”); see also Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (“The Policy does not require that a trademark be registered by a governmental authority for such rights to exist. ‘).


The ZEE CINEMA mark has acquired secondary meaning sufficient for Complainant to establish common law rights in the mark pursuant to Policy ¶ 4(a)(i). See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Nat’l Ass ‘n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) finding that the complainant had provided evidence that it had valuable goodwill in the <> domain name, establishing common law rights in the MINOR LEAGUE BASEBALL mark). The discussion and analysis of the acquired distinctiveness of Complainant’s domain names and business name as viewed from the separate perspectives of state law, federal law and the Policy can be discussed and analyzed collectively.


The seminal Pennsylvania Supreme Court enunciation of the principles of secondary meaning was stated in Koolvent Metal Awning Corp. v. Price, 368 Pa. 528 at 533-34, 84 A.2d 296 at 298-299 (1951):


The law in this class of cases is well established; its application to different facts and circumstances is sometimes difficult. Descriptive, geographical and generic words, as well as words of common or general usage belong to the public and are not capable of exclusive appropriation by anyone. This general principle is subject to the limitation or exception that if a trade name or trade-mark or other word or words have acquired, in the trade and in the minds of the purchasing public , a special or so-called secondary meaning, i.e., have come to mean that the article is the product of a certain manufacturer or of a particular individual or corporation, such trade name or trade-mark or word or words will be  protected against infringement: Quaker State Oil v. Steinberg , 325 Pa. 273, 189 A. 473; Kellogg Co. v. National Biscuit Co ., 305 US. Ill; Thomson-Porcelite Co. v. Harad , 356 Pa_ 121, 51 A. 2d 605; Stroehmann Brothers Co. v. Manbeck Baking Co ., 331 Pa. 96, 200 A. 97. Even though a word or phrase or mark has acquired a special or secondary meaning, the right of protection does not extend a monopoly to every word in the name, but the protection will be afforded only against names or marks which are deceptively similar thereto and consequently are likely to confuse the public: Quaker State Oil v. Steinberg, 325 Pa., supra. Moreover, a trade name or trademark which has acquired a secondary meaning is entitled to the protection of equity even though it may be unregistered or incapable of being registered: Hub Clothing Co. v. Cohen , 270 Pa. 487, 113 A. 677; E.T Fraim Lock Co. v. Shimer , 43 Pa. Superior Ct. 221; National NuGrape Co. v. Guest , 164 F. 2d 874.


Evidence which supports the acquired distinctiveness of Complainant’s domain names and business name consists of the following:


(I)        the extent of-sales and advertising leading to buyer association:


Complainant spent $8,777 on advertising in 2004, $5,721 in 2005, $6,174 in 2006, $7,424 in 2007, and $6,961 in 2008. Expenditures for advertising total $5,948 through June 2009, and $41,007 since the inception of business. See Exhibit “J” (so lettered as to continue the style and sequence of exhibit labeling in the Complaint) attached to and incorporated by reference herein.


(2)        length of use: Complainant’s domain names and business name have been in continuous use since its web site went live in[June?], 2004.


(3)        exclusivity of use: No other domain names containing the word combination “berkscountywedding[s]” have been used in Complainant’s market area, or elsewhere to its knowledge, until Respondent’s use began. Furthermore, no other use of “Berks County Weddings” in any variant style has been used to Complainant’s knowledge at any time since Complainant began its business.


(4)        the fact of copying: The only copying of Complainant’s domain names has been that which is the subject of this Complaint.


(5)        customer surveys: Complainant has no customer surveys to present. However, see Charles Jacquin Et Cie, Inc. v. Destileria Serralles, Inc., 921 F.2d 467, 476 (3d Cir. 1990) (“While consumer surveys are useful, and indeed the most direct method of demonstrating secondary meaning and likelihood of confusion, they are not essential where, as here, other evidence exists.”).


(6)        customer testimony: The Complainant has no customer testimony to present.


(7)        the use of the mark in trade journals:  The Complainant does not know of any trade journals which show the use of its business name or domain names.


(8)        the size of the company: The Complainant is a small company, having only one employee, and sales as shown below.


(9)        the number of sales: Complainant’s annual sales have totaled $24,907 in 2004, $31.681 in 2005, $20,936 in 2006, $33,500 in 2007, and $45,228 in 2008. Year-to-date sales through June 2009 are $25,534. See Exhibit “K” attached hereto and incorporated by reference herein.


(I0)      the number of customers: Due to the web site-based manner in which Complainant (and, presumably, Respondent) conducts business, the “number of customers” is related in terms of number of visitors to the web site. The number of visitors in 2004 totaled 5,289, there was insufficient data for 2005, the total in 2006 was 29,161, in 2007 34,563, and in 2008 50,840. The total number of visitors to Complainant’s web site through June 2009 has been 26,215. See Exhibit “K.”


In addition, Complainant currently has 96 vendors advertising on its web-site. Of that total, 92, or 96%, are headquartered in Berks County. See Exhibit “L” attached hereto and incorporated by reference herein.




(11) actual confusion: Complainant has not, as yet, received any reports of actual confusion from vendors or other visitors to its web site. This fact may be attributable to the fact that Respondent’s domain names were registered merely 4 months ago. Likelihood of confusion, as discussed below, is obvious however. The lack of actual confusion should not be counted against Complainant where it has acted promptly in attempting to thwart actual confusion, before actual confusion may have had a reasonable opportunity to occur.


Respondent’s reference to the decision of WIPO in the UtahBrides case is misleading. When read in its entirety, this case reveals a significantly distinguishing fact from the facts in the present case: namely, the complaining party in UtahBrides adopted “UtahWeddings” only in 2001, and the respondent in that case registered its domain name in June of the same year. (See Accordingly, complainant’s mark or domain name in that case could
not have acquired distinctiveness before that respondent registered its domain name. Conversely, Complainant’s domain names in the present case were first registered precisely 5 years before Respondent’s. For this and additional reasons presented above, Complainant justifiably argues, and presents substantial evidence in support thereof, that its domain names have acquired distinctiveness well before Respondent’s registration.


Respondent attempts to argue that Complainant’s use of “repetitive descriptive text and meta-tags in order to increase search engine relevance of the [web] site” establishes that the Complainant considers its domain names to be merely descriptive. (Resp. p. 6) Respondent cites no authority for this argument, however. It is a well known fact, in contrast to this specious argument, that web sites deliberately make intelligent use of such repetitive text and meta-tags in order to increase the likelihood that generic search requests, such as “wedding services in Berks County,” will bring visitors to one’s web site, regardless of whether the domain name for that web site consists of or includes a distinctive name or mark.


Respondent has not addressed the question of “likelihood of confusion” or “confusing similarity” in its Response, for good reason. There is no reasonable distinction between Respondent’s domain names and Complainant’s. Furthermore, Respondent seeks to capitalize in the same market, with the same customers, as Complainant.


            B. Rights or Legitimate Interests


Policy ¶4c. sets forth standards by which a respondent to a UDRP complaint may establish its rights to and legitimate interests in a disputed domain name. Each of the three enumerated standards in Policy ¶4c. is discussed here:


(i)        “before any notice to you of the dispute, your use, or demonstrable preparation to sue, the domain name ... in connection with a bona fide offering of goods or services;


Respondent registered his disputed domain names on March 11, 2009, ironically exactly five (5) years after Complainant registered its domain name <>: March 11, 2004. Later on in this Supplemental Submission, Complainant will discuss the obvious fact that Respondent certainly must have known of Complainant’s previously registered domain names, and will defer that discussion until then. For the present, such obvious foreknowledge by Respondent defeats any argument that he used or prepared to use the disputed domain names “in connection with a bona fide offering of goods or services.”


(ii)        you (as an individual, business, or other organization) have been commonly known by the domain name, eve if you have acquired no trademark or service mark rights; “


Respondent neither alleges nor demonstrates that it is commonly known by the disputed domain names. Respondent registered the domain names under a name: “Bigtime Ltd.” Respondent has failed to meet its burden under Rule 4c(ii). Furthermore, the fact the Respondent registered his domain names on in March 2009 weighs heavily against any possibility that he could have become “commonly known” by those domain names in such a short period of time, absent an extraordinary expenditure of funds for wide-spread and extremely intensive advertising and marketing, of which no evidence is even hinted to exist.


(iii)       you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers . . .”


Respondent neither alleges nor demonstrates that it is using the disputed domain names for noncommercial use. There can be no doubt that Respondent is using the disputed domain names for commercial gain. To the contrary, Respondent admits, and in fact touts the fact that, he “provides a directory of wedding related goods and services. . .” (Resp. p. 8)


Similarly, Respondent neither alleges nor demonstrates that it is making “a legitimate . . . fair use. . .” of the disputed domains.


Further evidence of Respondent’s lack of legitimate rights or interests in the disputed domain name exists on Respondent’s own web site, as shown collectively in Exhibit “M” attached hereto and incorporated by reference herein, in which Respondent advertises:


¾                Berks County Salons and Spas,” but shows only one salon, which is located in Lehigh County, but none in Berks County;


¾                “a very large assortment of wedding reception sites . . . for Berks County Weddings,” but shows only one reception site, not a “very large assortment,” and that one is not located in Berks County;


¾                “Berks County Wedding Videographers,” showing three videographers from outside Berks County but only one in Berks County;


¾                “Florists in the Berks County area,” showing two florists, both from outside Berks County but none in Berks County;


¾                “Wedding DJs from the Berks County area,” all nine of which are located outside Berks Count, but none in Berks County;


¾                “Chocolate Fountain Rentals in Berks County,” the only one of which is located outside Berks County;


¾                “. . . cakes and desserts from Berks County bakeries,” showing only one bakery which is located outside Berks County, but none in Berks County; and


¾                “A large selection [consisting of 17 in total] of Reading Photographers, Birdsboro Photographers, and Wyomissing Photographers,” of which four are located in Reading or in the suburb of West Lawn, none from Birdsboro or Wyomissing, and the remaining thirteen all from locations outside of Berks County.


This assemblage of evidence from Respondent’s own web site shows clearly and unmistakably that Respondent is generating revenues from referrals to wedding service vendors the great majority of which are located outside of Berks County. It is fairly obvious that Respondent’s web site is likely to mislead consumers into thinking they are being directed to vendors located in Berks County. Furthermore, Respondent’s web site lists 22 categories of services available through it, but in fact does not contain any referral vendors in fully 11, or one-half, of those categories. Undoubtedly, Respondent intends to attract bridal couples who are planning to have weddings in Berks County, but as this evidence shows, very few of the vendors to which his web site provides referrals are located in Berks County, making the name of his web site significantly misleading.


Finally, Respondent does not assert that he is using the disputed domain names “without intent for commercial gain” or deny that he is doing so “to misleadingly divert consumers” from Complainant’s web site. Rather, Respondent admits as much in declaring that it “has legitimate rights in the use of the domain name for a bona fide offering of goods and services....” (Resp. p. 8)


Accordingly, Respondent has not met its burden of demonstrating that it possesses rights to and legitimate interests in the disputed domain names under Policy ¶4c. Respondent’s sole basis for defending its use of the disputed domains is that Complainant’s domain names are “merely geographically descriptive” and thus not entitled to protection. (Resp. pp. 1-6)


            C. Registration and Use in Bad Faith


Registration of a domain name that is confusingly similar to another’s mark, despite knowledge of the mark holder’s rights, is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”). Fair Isaac, supra.


Respondent registered its domain names only on March 11, 2009. At that time he could only register in domains other than “.com,” because, as he undoubtedly found, that domain was already occupied by Complainant. Could Respondent have registered in the “.net” domain without knowledge that his domain names were otherwise identical to Complainant’s? It’s possible. But the likelihood that an ambitious businessperson would deliberately bypass, ignore, and forego, the far more common, recognizable, and probably habitually used “.com” domain in favor of “.net” falls into the same realm of possibility as the planet Earth colliding with the planet Neptune within our lifetimes.


Far more likely is the scenario where Respondent initially sought to register his domain names in the “.com” domain, only to find that Complainant already occupied it with the names that Respondent sought to use. It is therefore most likely that Respondent possessed actual knowledge, or certainly constructive knowledge, of Complainant’s pre-existing domain name registrations when he registered his own. And that foreknowledge would likewise had to have existed at the time Respondent put his domain names in use.


Evidence of registration and use in bad faith may be found in the case of a respondent where


(iii)     you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or


(iv)     by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location


Policy ¶4b(iii) and (iv).


Respondent’s homepage and an internal page of his web site were appended to the Complaint as Exhibits “C” and “D” respectively. A copy of a page from Complainant’s web site is attached to this Supplemental Submission as Complainant’s Exhibit “N”. Not only does the general appearance of Respondent’s home page clearly resemble that of Complainant’s page, certain language from Respondent’s home page bears such striking resemblance to language from Complainant’s attached page as to suggest plagiarism by Respondent, as asserted in page 3 of the demand letter from Complainant’s counsel to Respondent attached as Exhibit “A” to the Complaint.


In the present case, Respondent does not deny that he is a direct competitor of the Complainant. A cursory examination of the parties’ respective web pages put that question clearly beyond dispute. Moreover, he candidly admits that he “provides a directory of wedding related goods and services in the Berks County area ... [with] maps to such advertisers and relevant contact information.” (Resp. p. 8)[1]


As discussed above; Respondent has not denied that his domain name, is confusingly similar to Complainant’s and, except for the domain extension, it is clearly identical to ‘Complainant’s.


Respondent does not deny that he seeks to re-direct web traffic from Complainant’s web site to his own. Respondent does not deny that he seeks to disrupt Complainant’s business. In essence, Respondent does not deny that his conduct falls within any of the examples of evidence of registration and use in bad faith as set forth in Pol. ¶4b.


Respondent’s sole excuse throughout his Response is that Complainant’s trade name “Berks County Weddings” and corresponding domain names are merely geographically descriptive and therefore not entitled to any protection whatsoever.


Respondent attempts to excuse or rationalize his use of his confusingly similar domain names by asserting that “The `bad faith’ criterion is an element of specific intent directed toward the Complainant, and arising from rights known by Respondent to belong to the Complainant . . . [and] relate, at their basis, to a conscious and willful exploitation of the Complainant’s rights.” (Resp. p.8) But rather than cite or refer to any cases which support this assertion, Respondent instead merely refers to the FCC. COM decision which criticized “the inexplicable failure on the part of the Complainant to exhibit a print-out of the Respondent’s homepage ... in finding that the complaint was brought primarily to harass the [respondent].” (Resp. p. 9) While it is understood on what basis the Respondent raises this argument, it is indeed “inexplicable” why he fails to recognize the obvious inclusion of two pages from his own web site as exhibits to the Complaint (see Complaint, Exhibits “C” and “D”), unless for the purpose of drawing the Panel’s attention away from Respondent’s complete failure to present any shred of evidence that might show that his actions do not constitute bad faith.


Above in this Supplemental Submission, under the heading “Lack of Legitimate Rights or Interests,” Complainant has set forth by service category a description of vendor locations for vendors listed in Respondent’s web site. Complainant’s analysis and discussion of the Respondent’s lack of presence in Berks County set forth therein is incorporated by reference in this analysis and discussion of Respondent’s bad faith registration and use of the disputed domain names.


Finally, the Castle Windows case cited above, although not stating so explicitly, clearly demonstrates that “intent” may be found by inference from all of the pertinent facts. The principles under which such inference is drawn in that case clearly apply in the present case as well, i.e., that parties are direct competitors, the domain names in question are identical, products and services offered and sold through the respective web sites are similar, and, in this case by his own admission, Respondent is seeking to attract internet visitors, which he can only accomplish by drawing them away from Complainant’s web site.


Respondent’s only excuse for seeking to appropriate Complainant’s domain names for his own use and profit is the assertion that the names in question are “merely descriptive.” Respondent fails to address the distinctiveness which Complainant’s domain names have acquired over the five (5) years of use since the first of Complainant’s names was registered. Claiming that he has legitimate rights and interests in his own domain names solely on the basis of his rebuttable assertion that Complainant lack such rights, Respondent fails to point that Panel’s attention to the fact that his own web site has minimal contact with or relationship to Berks County vendors of wedding goods and services despite implying so in his domain names and web site name. Finally, relying solely on the same assertion, Respondent fails to present any evidence to refute the obvious facts showing that his registration and use of the disputed domain names is done in bad faith.


IV Response to Complainant’s Supplement


            A. Identical and/or Confusingly Similar


Despite the Policy Rule 12 stating “the Panel may request, in its sole discretion, further statements or documents from either of the Parties”, and the Policy provision limiting the scope of provider supplemental rules, the Complainant has chosen to follow what is the usual course of proceeding under NAF Supplemental Rule 7 to submit a “supplement” of greater length and raising more issues than under the original Complaint.


            A. The Scope of the Policy

The Policy criterion requiring the Complainant to show that the “domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights”. The primary point of the first criterion is the question of similarity between the domain name and a demonstrated mark, as it was apparently not anticipated that the usual course of proceedings under the Policy would be to make deep substantive determinations of whether the Complainant does or does not have rights in what is asserted as a mark. Possession of a trade or service mark is a subordinate issue. In other words, a panel may certainly recognize a trademark registration, and indeed a panel may recognize demonstrated use in commerce of a distinctive term in a common law jurisdiction. The essence of the Complainant’s supplement is that the admittedly descriptive term at issue here, while not registered in Pennsylvania or the United States, would nonetheless be registrable before a competent registration authority.


The Complainant on the first criterion, in essence, seeks to have the Panel make a determination of whether an unregistered descriptive term would be registrable in Pennsylvania on the basis of an assortment of unchallenged evidentiary submissions supporting an assertion of acquired distinctiveness. Of course, such evidence will necessarily be unchallenged, since the Complainant has chosen to raise the issue of acquired distinctiveness within the five-day response context of NAF Supplemental Rule 7, instead of the broader and less perfunctory procedural rules of opposition in either Pennsylvania or the USPTO.


One might think the proper forum in which to determine the question of registrability of a descriptive term might be the appropriate trademark office. While, certainly, a UDRP panel may consider common law claims based on use of a more clearly distinctive term, and while it may be tempting to rule on a disputed issue of material fact, possession of a mark as an ancillary issue under the first criterion of the Policy was intended to be the simplest to clearly satisfy. Possession of a trade or service mark is the “admission ticket” to a UDRP Proceeding, not the intended line of inquiry. Under the guiding principle that the UDRP was not intended to work an expansion of legal rights, the Panel must know that a favorable decision in this forum would, of course, be the primary exhibit to then be taken before a registration authority as evidence that the claimant’s rights had received recognition. The point is that the UDRP is a forum in which to enforce rights, not to obtain them.


B. Complainant’s Evidence of Acquired Distinctiveness


The Complainant glosses over the mention in Keystone Publishing, Inc. v. that, indeed there was an attempt to demonstrate secondary meaning through acquired distinctiveness, such as “pertinent records of billboards, television advertising and Internet hits” and “19 affidavits from its business clients”. With respect to the specific circumstances of “<county name> Weddings” alleged as a mark, the same effort was mounted in:


Deborah Kanani d/b/a Mendocino Weddings v. Ted Kidwell, D2004-0159 (WIPO).


The Panel is satisfied that the disputed domain name is confusingly similar to “Mendocino Weddings”. The addition of a hyphen between “Mendocino” and “Weddings” does not create a new or different mark.


However, the Panel is of the view that the Complainant has failed to establish that it has protectable rights in the phrase “Mendocino Weddings”. Complainant admits that the phrase “Mendocino Weddings” is descriptive of the services performed under Complainant’s business. It immediately calls to mind a wedding planning business for weddings in Mendocino County. Complainant contends, however, that the mark has acquired secondary meaning and is thus protectable under common law rights, due to the length of time of use and consumer recognition. Where, as here, the mark is a highly descriptive term “a party seeking to establish exclusive rights carries a heavy burden of proof in removing the term from the public domain.”, Inc. v. Name Administration Inc., WIPO Case No. D2002-1167 (February 19, 2003). “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.” Id.


While it is undisputed that Complainant has carried out her business under the name “Mendocino Weddings” for over a decade, no other credible evidence concerning the other tests has been introduced. Those letters and testimonials submitted by Complainant, while supporting the claim of long use of the name do not establish consumer recognition. The letters and testimonials are all from people that are suppliers or acquaintances of Complainant. Notably, Complainant has not submitted evidence of total advertising expenditures, the amount of sales under the mark or most importantly, a consumer survey or evidence of media recognition (the sole reference to “Mendocino Weddings” in the article in Martha Stewart Living dated June 20, 1998, Exhibit N to the Complaint is not compelling.) Moreover, as Complainant admits, any consumer recognition is limited to “Mendocino County and its surrounding environs.”

(Emphasis Added)


Ultimately, whether secondary meaning exists is a question of consumer perception. One can, of course spend heavily to promote a generic term. Here, the Complainant has spent a few thousand dollars a year, has no consumer testimony, no evidence of media recognition, a single employee, no evidence of actual confusion and there is no metric to gauge the Complainant’s sales relative to the what is spent on weddings in Berks County, Pennsylvania. Indeed, the annual sales figures themselves compare favorably to the cost of a single wedding in many communities, and the annual advertising figures amount to what the Respondent estimates it may spend on lunch each year.


In connection with the claimed advertising expenses, the Complainant operates a number of businesses, such as “Delaware Valley Bridal”. Nowhere do the invoices shown by the Complainant demonstrate that promotion of “Berks County Weddings” was the subject of such advertising, or was prominently promoted in such advertising, if at all, as a trade or service mark. Indeed, the content of such advertising might itself be revealing, in that the Complainant would have considerable difficulty avoiding non-trademark use of the term at issue.


The evidence submitted by the Complainant is apparently less compelling than that submitted in what amounts to the same dispute relative to Mendocino County, California in connection with ten years of documented use of “Mendocino Weddings”, and is similar to what was considered in connection with “Utah Weddings”. Of course, the fact that panels have found “Utah Weddings” and “Mendocino Weddings” to be primarily descriptive itself suggests that the formation of a domain name by adjoining a geographic term to the word “Weddings” is something of a common means of advertising wedding services in the designated area. The Complainant has not submitted an iota of evidence tending to indicate that relevant consumers regard “Berks County Weddings” as a term distinctively and exclusively associated with a single source. Of eleven factors enumerated by the Complainant, three are minimally present (such as a single employee), eight are absent, and the relative success of the Complainant in obtaining web traffic for a descriptive term is not probative of consumer perception.


Considering that the Complainant’s business consists of the advertisement of wedding service providers, the number of persons seeking such providers in Berks County, and thus coming across the Complainant’s directory is not a measure of consumer perception of a mark so much as it is consumer perception that if one is looking for services relevant to Berks County weddings, those are certainly convenient search terms to use. The notion that such consumers would find the Complainant to be a distinctive provider of such a directory, when such consumers are primarily looking to find the advertisers, and not the Complainant itself, does not stand to reason.


The Complainant falsely claims its use of “Berks County Weddings” is exclusive. While by no means comprehensive, examples of third party use attached as Exhibit A hereto include:


¾                A directory of resources entitled “Berks County Weddings” at <>


¾                A directory of “Berks County – Weddings” resources at <>


¾                A listing of “Berks County, PA Weddings” resources a <>


¾                A portfolio designated “Berks County Weddings” by Reading, PA photographer Jennifer Breton


¾                - Two examples from Bee Tree Trail livery, describing team hitches it uses for “Berks County weddings”


It is of course simple for the Complainant to claim ignorance of third party use of this descriptive term, as the Complainant is not motivated to find any. Nonetheless, the term is indeed used by third parties in a descriptive sense.


Finally, the Complainant does not respond to the issue of estoppel raised by its own use of the term in a descriptive sense, noted in the Response. “A kind of estoppel arises when the proponent of trademark use is proven to have itself used the term before the public as a generic name, yet now claims that the public perceives it as a trademark.” McCarthy on Trademarks § 12:13 at 12-27 (citing, e.g., Turtle Wax, Inc. v. Blue Coral, Inc., 2 U.S.P.Q.2d 1534 (T.T.A.B. 1987)). The Complainant has never claimed, asserted, nor sought registration of the disputed term as a trade or service mark in any other forum, and has used the term as a descriptive term. Only now does the Complainant seek to limit fair competition by claiming a monopoly in a term it has itself used descriptively.


Accordingly, the Complainant has not proven the first element of the Policy.


III. Remaining Issues


While the Complainant has largely reduced this Proceeding to extending an invitation to the Panel to determine whether the alleged mark would be registrable in Pennsylvania, the Respondent has always believed and still believes the term at issue is merely a descriptive term, and the Respondent maintains that belief in good faith.


The Complainant objects that some of the Respondent’s advertisers are actually located in neighboring Lehigh County. That is, of course, a natural consequence of the fact that Respondent operates,,,,,,,, and, and indeed the Respondent offered its Lehigh County advertisers a discount on advertising on the Berks County site. Lest the Panel believe these counties are remote and limited, they are neighboring counties across the boundaries of which commerce is conducted, and the good residents and businessmen of Pennsylvania have availed themselves of the wonders of modern transportation between them. William Penn remains fondly remembered and revered in Pennsylvania, but the Commonwealth has moved on in terms of technology.


Of course the Respondent is using a descriptive term to provide links to wedding resources in the general vicinity of Berks County, Pennsylvania. The suggestion that such things might be found at a site denominated by the domain name is the direct import and primary meaning of the term at hand. The Complainant’s extended discussion of prior decisions, such as the Castle Window dispute, involving inherently distinctive or registered marks in which, of course, using the term at issue for similar purposes necessarily raises an issue of unfair competition. Selection of a distinctive term for competitive purposes is the essence of unfair competition. However, the assertion that this term was chosen because the Complainant operates a similar domain name in com is not supported. Indeed, as noted above, the Respondent operates, and has long operated a portfolio of domain names in .net which consist of “<Geographic Location>>. The domain name here at issue was registered, consistent with such other domain names, because it too consists of the name of a geographic location pre-pended to the word “weddings” for the purpose of advertising wedding service providers – even ones located an entire county away – in that general area; and for no other reason than that. The existence of multiple top-level domain names prevents one party from monopolizing generic and descriptive terms, as the Complainant is attempting to do here.


In summary, the Policy is intended to provide a lightweight administrative procedure for clear cases of cybersquatting, and with relatively predictable results. Filings under the UDRP are not available for public inspection, and every prior case premised on claims such as “Utah Weddings” and “Mendocino Weddings” has indeed been accompanied by various types of evidence seeking to establish acquired distinctiveness in what are prima facie admittedly descriptive terms – one claiming mention by none other than the highly regarded Martha Stewart Living magazine. The Policy is not well suited as a forum for making borderline determinations absent clear and uncontested evidence of a trade or service mark. Here, the Complainant fails to satisfy much of the evidentiary standard which the Complainant itself proposes and fails to submit any evidence of consumer perception which has been repeatedly singled out as the “most important” type of evidence bearing on such a question. This problem is compounded by the presence of evidence contrary to the Complainant’s claims, and even then, we have not left the starting gate of the first element required to be proven under the Policy.


On the remaining two elements, there is no question that the Respondent is using this admittedly descriptive term in association with the services for which the term is descriptive, and the Respondent could certainly not have been privy to such things as the remarkable fact that the Complainant spent the princely annual sum of some $6,000 on unspecified advertising of some kind in recent years. The fact remains that the Respondent did not, and still does not, believe the term at issue to be anything other than a descriptive term subject to multiple uses by parties other than the Complainant, and this eminently reasonable belief does not amount to bad faith.



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



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.



Identical and/or Confusingly Similar Policy ¶4(a)(i)


The Panel finds the issues on this element in favor of Respondent.


Respondent contends that, without a federal trademark registration or even application for the BERKSCOUNTYWEDDINGS.COM and BERKSCOUNTYWEDDING.COM marks, Complainant cannot claim rights in those marks because Complainant has not shown any evidence that those marks have acquired secondary meaning.  Respondent also contends that because the marks are wholly made up of descriptive terms, there is no evidence that the public identifies the marks with Complainant, the supplier of the described services, rather than the services themselves.  The Panel agrees that Complainant has not shown that the BERKSCOUNTYWEDDINGS.COM and BERKSCOUNTYWEDDING.COM marks have acquired secondary meaning, and the Panel finds that Complainant does not have rights in the marks pursuant to Policy ¶ 4(a)(i).  See 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 LLA v. US Tours & Travel, Inc., AF-0284 (eResolution Sept. 9, 2000)  (finding that marks classified as descriptive cannot be protected unless secondary meaning is proven and to establish secondary meaning the complainant must show that the public identifies the source of the product rather than the product itself).


The Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i) because it has failed to establish rights in the marks, the Panel declines to analyze the other two elements of the Policy.  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)).



Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.







Timothy D. O’Leary, Panelist
Dated: August 3, 2009



National Arbitration Forum

[1] While this statement may be perceived to mean that Respondent’s web site provides and directory of wedding related goods and services that are provided by vendors in Berks County, in fact the vast majority of vendors connected to through his web site are not headquartered in Berks County.