Interactive Data Corporation v. Maharaja Global c/o Tamal Das Gupta
Claim Number: FA1001001305447
Complainant is Interactive Data Corporation (“Complainant”), represented by Ronald E. Shapiro, of Shapiro and Silverstein PLLC, Virginia, USA. Respondent is Maharaja Global c/o Tamal Das Gupta (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <esignalindia.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. O’Connor as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 29, 2010. With its Complaint, Complainant also chose to proceed entirely electronically under the new Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”) and the new Forum’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”) by submitted an “opt-in” form available on the Forum’s website.
On January 29, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <esignalindia.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that the Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 12, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 4, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@esignalindia. Also on February 12, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Respondent did not indicate assent to participate in an electronic process; therefore Respondent’s submission was required to be sent in hard copy per the version of Rule 5 currently in effect.
A Response was received on March 4, 2010, that was deemed deficient by the National Arbitration Forum because it was not received in hard copy prior to the Response deadline.
On March 15, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. O’Connor as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
The complaint is based upon the following United States registrations, which are owned by Interactive Data Corporation:
i. Registration No.: 2,432,180
A. Mark: ESIGNAL
B. First Use in Commerce: At least as early as May 3, 1999
C. Registration Date: February 27,2001
D. Description of Services: In international Class 36 - financial market
quotes; news, information, analysis, and commentary all related to financial markets and investments; all provided via a global computer network; and in International Class 42 - news agencies, namely, gathering news and disseminating news via a global computer network
ii. Registration No.: 3,113,831
A. Mark: eSignal Pro
B. First Use in Commerce: At least as early as March 21,2001
C. Registration Date: July 11, 2006
D. Description of Services: In International Class 36 - financial market
quotes; news, information, analysis, and commentary all related to financial markets and investments; all provided via a global computer network; and in International Class 41 - news agencies, namely, gathering news and disseminating news via a global computer network.
Interactive Data Corporation has made continuous use of the above-described registered service marks in connection with its provision of the aforementioned services since registration. In connection with its provision of such services, Interactive Data Corporation has continuously operated the website <esignal.com> since 1999.
The domain name <esignalindia.com> is virtually identical and confusingly similar to the service mark ESIGNAL, in which Complainant has rights under Registration No. 2,432,180.
In this case, the term "india" does not alter or detract from the overall impression of the dominant part of the domain name (Comp1ainant's mark), which denotes the services of Complainant. "India" is simply a geographically descriptive term denoting that Registrant directs at least a portion of its services to providing data on stocks, futures and commodities in India. It has little, if any, trademark significance. By itself, "india" cannot serve as a source identifier or trademark and does not affect the virtual identity of the domain name and the mark.
Similarly, for the reasons enumerated above, and as hereinafter described, the domain name <esignalindia.com> is virtually identical or confusingly similar to the service mark eSignal Pro, in which Complainant has rights under Registration No. 3, 113,831. The only difference between <esignalindia.com> and eSignal Pro is the substitution of the descriptive term "india" in the domain name for the term "Pro." Even if a domain name is not identical to a Complainant's mark, it is confusingly similar where it incorporates the primary, distinctive element of that mark.
Here, Respondent has commandeered the use of Complainant's registered marks for its own commercial benefit. Such use is in direct competition with Complainant. It is inconceivable that Respondent could have registered the disputed domain names in ignorance of Complainant's rights in the marks, since the goods and services offered by Respondent on the <esignalindia.com> site are in direct competition with those offered by Complainant. Even if Respondent were to claim ignorance of Complainant, Complainant's federal registration of its ESIGNAL mark prior to Respondent's registration of the <esignalindia.com> domain name was constructive notice of Complainant's exclusive rights in the ESIGNAL mark. As such, Respondent either knew, or should have known, of Complainant when Respondent registered the <esigna1india.com> domain name. Such knowledge at the time of registration, by itself, constitutes per se bad faith registration.
Respondent is not commonly known by the domain name or any portion thereof. In fact, according to the materials posted on the home page of the <esignalindia.com> website, the copyright in the contents of the website is owned by "FINOSYS." Moreover, the web page containing contact information related to the website directs that correspondence be sent to FINOSYS at an address that differs from that listed in the WHOIS registry for the domain name <esignalindia.com>. In addition, the legal disclaimer page of the website indicates that the "website site is owned by FINOSYS, a firm under the Maharaja GLOBAL group of firms."
Respondent is not making legitimate noncommercial or fair use of the domain name without the intent for commercial gain. The action of Respondent in knowingly adopting a domain name similar to Complainant's marks creates a presumption that the public will be deceived.
Respondent's registration and use of the disputed domain name is intended to attract internet users to Respondent's competing website by creating a likelihood of confusion with Complainant's ESIGNAL and eSignal Pro marks as to the source, sponsorship, affiliation, and endorsement of Respondent's goods and services. Internet users interested in web content of the type provided by Complainant under its ESIGNAL and eSignal Pro marks and pertinent to India are likely to search for that content by typing in the disputed domain name, <esigna1india.com>. Once such users have arrived at Respondent's site, they are likely to believe that the site is associated or affiliated with Complainant due to the similarity of the content provided and the similarity of the domain name to Complainant's marks. Even if the site informed such users that it is not associated or affiliated with Complainant, Respondent's use of the domain name would still infringe Complainant's marks because of the initial interest confusion that drove those users to Respondent's site in the first instance.
Further, Respondent's use of the domain name does not constitute fair use. That Respondent's use of the domain name is for commercial gain is evident from the fact that Respondent offers its goods and services (namely, its "Intra Day Data," "Intra Day Data for Commodities," "End of Day Data," "Technical Analysis and Education Course," and "Expert Trading System") for sale through links on the home page of the <esigna1india.com> website. Such parasitic use, which, at its essence, relies on instigating and exacerbating user confusion, does not constitute bona fide noncommercial or fair use, and thus does not give rise to any legitimate rights or interests in the domain name.
Given that Complainant and Respondent are competitors, "it is reasonable to infer that Respondent registered and used the contested domain name in order to disrupt Complainant's business."
Respondent is acting in bad faith by using the domain name to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with Complainant's marks as to the source, sponsorship, affiliation, or endorsement of Respondent's website or Respondent's products or services. Respondent's registration and use of the <esignalindia.com> domain name amount to an "attempt to 'piggyback' on the goodwill and brand recognition created by the Complainant in its marks and is intended to confuse consumers into believing the services provided by the Respondent are affiliated with or endorsed by the Complainant, when, in fact, that is not the case.
The two words “e” and “signal” both got their own meaning. “e” is very popular abbreviated form of electronics and there are many sites in web, which starts with “e” (the most famous are eBay etc). “e” may be considered the most generic term in virtual world just like “signal” is also very generic term in the world of science and technology. The Complainant cannot claim exclusive rights on these two words simply because they have registered them.
India is a geographic term, without going into the legal documentation as quoted by the Complainant, it may be noted that the “Air India” and “Air France” are not same though they are providing similar services. Similarly whether America online is same as India online may please be left to discretion of netzens.
So esignal and esignal
It is not confusing because as per web design, packaging, product, pricing, location, company status, target customers are concern esignalindia is different in all respect to the Complainant.
Respondent is mainly a data vendor for one specific third party software; technical analysis course is based on general principles of Technical analysis. Respondent provides data for very limited selected exchanges like lot of other data vendors provides in India. Where as the Complainant provide 100s exchanges. Respondent doesn’t provide any charting platform where as Complainant provide highly commendable and efficient charting platform with sophisticated packaging with high price range. The target of “esignal India” is to provide low-cost data for the common man and small traders. The products offered by “esignalindia” are limited to India only, where as the Complainant offer much wider range of product and services worldwide. The Complainant is a 25 year’s old experienced company; we are touching 5 years only confined in India having only one office at Kolkata, India. Hence the learned customers (internet users) have little scope to confuse with esignalindia with the Complainant.
Finally, to avert any confusion a legal disclaimer is put up on the site categorically allying any confusion in this regard. The Panel is also requested to clarify the legal “locus standee” of disclaimer while delivering judgment on this case.
Regarding “eSignal Pro”, it may be mentioned that the name is registered on July 11, 2006 and the domain name in dispute was created in November 5. 2005. Therefore, if that domain name is alleged for confusing similarity since it came into existence on a later date than ESIGNAL, the same charge can be leveled against eSignal Pro by this Respondent on the same ground.
Respondent doesn’t have any intention to compete directly or indirectly with the Complainants. There are differences in almost all respects. There are two remote similarities: the data (graph) National Stock Exchange of India (NSE) and Indices, includes NIFTY of selected scrips, and Multi Commodity Exchange India (MCX) of selected scrips. Moreover the Complainant’s data is better in quality, with longer back history and superior technique, higher priced and packaging in all respect. There are lots of data vendors in India who provide data like Respondent, which doesn’t provide any own charting software like the Complainant. Targeted customers are also different because Respondent caters to very low-end clients that may be seen from the price comparison between the two concerns.
FINOSYS is a proprietary firm having much lesser turnover. The target is to provide low priced solution to low budget traders comprising of most common people. To keep the product price low, Respondent reduced its overhead by not registering the name (sic) which otherwise costs substantial amount of money in India, no other intention is there. Moreover if Respondent was aware of this Policy and some how expected the objection of the Complainant, Respondent would not go for this domain name with investing money in booking and maintenance from last 5 years.
Respondent find the allegation, that it is not commonly known by the domain name, to be not acceptable since the Complainant i.e. Interactive Data Corporation is also not known by their domain names. The only difference between us that they have registered the names (sic).
Respondent makes an argument concerning “intraday data” that is not understood by the Panel.
If Internet users type in search <esignalindia.com>in normal process they will get Respondent’s website details. If they type “esignal” they will get the web details of the Complainant details only. Nothing confusing with that, it means the Internet user is well aware of what he is searching for.
Respondent has not registered or not acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant or to the competitor of the complaint, for valuable consideration in excess of Respondent’s out–of–pocket costs directly related to the domain name in dispute.
Respondent never has tried to contact or what so ever to the Complainant for any monetary gain in lieu of the domain name in dispute
Respondent has not engaged intentionally in pattern of any conduct to prevent the Complainant of the trademark or service mark from reflecting the mark in a corresponding domain name.
Respondent has no intention disrupting the business of the Complainant because the parties have very littlie similarity in product, pricing etc.
Respondent has not intentionally attempted to attract, for commercial gain, internet users to its website or other on- line location, by likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or services on its website or location. Respondent’s website is a self-explainer regarding source, sponsorship, affiliation, or endorsement and Respondent has already mentioned all the differences and negligible similarity (if any) with the Complainant.
Although Respondent did not expressly assent to electronic processing of this matter, the Respondent did electronically and timely file the Response (constituting an implied assent to electronic processing). The Panel finds that Respondent’s technical violation of the Rules as recently amended should not bar consideration of the Response. See J.W. Spear & Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that where the respondent submitted a timely response electronically, but failed to submit a hard copy of the response on time, “[t]he Panel is of the view that given the technical nature of the breach and the need to resolve the real dispute between the parties that this submission should be allowed and given due weight”).
The Panel finds that Complainant has rights in the ESIGNAL and eSignal Pro trademarks and that the disputed domain name is confusingly similar to those trademarks. The Panel finds that Respondent has no rights or legitimate interests in and to the disputed domain name. Finally, the Panel finds that Complainant has failed to establish that Respondent registered and used that domain name in bad faith.
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
The Panel finds that Complainant has established rights in the ESIGNAL mark pursuant to Policy ¶ 4(a)(i) through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,432,180 issued February 27, 2001). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
The Panel finds that it is not necessary for Complainant to have registered its ESIGNAL mark in the country of Respondent’s residence (India). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant argues that Respondent’s <esignalindia.com> domain name is confusingly similar to Complainant’s ESIGNAL mark pursuant to Policy ¶ 4(a)(i). Complainant alleges that Respondent’s disputed domain name is comprised of Complainant’s mark, adds the geographically descriptive term “India,” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of a geographically descriptive term to a registered mark does not avoid confusing similarity. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the addition of geographic terms, such as “cancun” to the end of the CHEAPTICKETS mark in the <cheapticketscancun.com>, <cheapticketscancun.biz>, <cheapticketscancun.net>, and <cheapticketscancun.org> domain names, does not overcome a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Skype Ltd. & Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004) (“…it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.”).
The Panel also finds that the addition of a gTLD is irrelevant in distinguishing a disputed domain name from an established mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
Respondent contends that the use of a disclaimer on its web site allays any confusion between the disputed domain name and the ESIGNAL mark.
That disclaimer states, in part:
This website is owned by Finosys, a firm under the Maharaja GLOBAL group of firms. Any similarity in name or whatsoever is purely coincidental. Neither this site, nor anyone associated with Finosys and its web site esignalindia.com, is responsible for any confusion or whatsoever in this regard.
Just saying that similarity is coincidental and that Respondent is not responsible for any confusion doesn’t make it so. Also notable is the fact that Respondent’s disclaimer does not make any reference to Complainant, does not appear on the main or initial page of Respondent’s web site, and can be reached by the user only by clicking on a link on that main page.
Complainant has pointed out that the use of a confusingly similar domain name results in “initial interest” confusion in which a user is drawn to Respondent’s web site by the use of that domain name. See Sony Corporation v. Times Vision, Ltd., FA 095686 (Nat. Arb. Forum, Mar. 9,2001) (“Complainant contends that the facts of this case justify resort to the doctrine of initial interest confusion … even though Internet users accessing a domain name web site immediately realize that they have reached a site wholly unrelated to the registered mark holder whose name is identical or similar to the domain name used by another without permission of the holder of the mark, the domain name operator will still have gained a customer by appropriating the goodwill that the holder of the mark has developed. The Panel agrees that initial interest confusion has occurred and will in the future occur regarding the domain name JUMBOTRON.COM).
The Panel finds that Complainant has met its burden of proof under ¶ 4(a)(i) of the Policy.
Rights or Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made such a prima facie showing. Respondent is using the domain name in dispute for financial informational services within the scope of those for which Complainant has secured rights in the trademark ESIGNAL.
¶ 4(c) of the Policy lists three circumstances in particular, without limitation, that demonstrate rights or legitimate interest of a domain name registrant to a domain name, for the purposes of ¶ 4(a)(ii) of the Policy:
(i) before any notice of the dispute, the Respondent’s 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 and services; or
(ii) the Respondent, as an individual, business, or other organization, has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or
(iii) the Respondent is making a legitimate non‑commercial 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.
Complainant presents the relevant WHOIS information identifying the registrant of the disputed domain name as “Maharaja Global c/o Tamal Das Gupta.” There is no evidence in the record to suggest that Respondent is otherwise commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent’s disputed domain name resolves to a website offering financial information services in exchange for fees. The Panel finds that this commercial use of the disputed domain name makes the defense of ¶ 4(c)(iii) unavailable to Respondent.
Regarding the defense of ¶ 4(c)(i), the issue is whether Respondent made a bona fide use of the Domain name in dispute prior to notification of this dispute.
The Panel disagrees with Complainant’s contention that its US
Registration provided constructive notice of the dispute. Only
The Complainant has not established any actual notification to Respondent of this dispute, prior to these proceedings.
Was Respondent’s use prior to notification bona fide?
Respondent’s use postdates the establishment of Complainant’s rights in the trademark ESIGNAL.
Both Complainant and Respondent provide real-time securities data to their customers. Respondent provision of such data is limited to three exchanges in India: the National Stock Exchange (NSE), the Bombay Stock Exchange, and the Multi Commodity Exchange India (MCX). Complainant also provides such data for these three Indian exchanges, and for many more exchanges worldwide. Nothing has been shown to the Panel that would preclude customers in India from using the services of Complainant, or that would preclude customers in the US from using the services of Respondent, to obtain data for securities on these three exchanges.
Complainant and Respondent are thus direct competitors, using domain names (and trademarks) that are confusingly similar.
Respondent’s contention that the components “e” and “signal” of the ESIGNAL mark are generic, absent any evidence that the combination of those letters is also generic, is immaterial to the issue of whether or not Respondent’s use is bona fide.
Respondent’s contention that it provides a lower quality service than does Complainant does not legitimatize its service. Rather, that contention supports Complainant’s contention that Respondent’s use is not legitimate.
The Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods and services. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”).
Complainant has met its burden of proof under ¶ 4(a)(ii) of the Policy.
Registration and Use in Bad Faith
The circumstances of ¶ 4(b) of the Policy are illustrative but not exhaustive of the circumstances under which bad faith registration and use under ¶ 4(a)(iii) can be established.
¶ 4(b) of the Policy reads:
[T] he following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(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 on-line 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.
In each of the circumstances listed in Policy ¶ 4(b), the Complainant
must establish that Respondent intentionally and actively registered and used
the domain name for the purpose of causing injury to the Complainant.
Complainant only makes general contentions as to the bad faith of Respondent, repeating and parroting the circumstances of ¶ 4(b). Complainant makes no attempt whatsoever to offer any specific factual contentions or introduce any documentary evidence that would establish that Respondent’s acts fall within those circumstances.
The fact that both parties are competitors, while sufficient to establish Respondent’s lack of rights or legitimate interest in the domain name, does not show that Respondent has registered and used that domain name to disrupt the business of Complainant:
Respondent’s website using the domain name at issue does not emulate in any way the website of Complainant using the ESIGNAL trademark;
Complainant has not established that its ESIGNAL trademark is so well known that Respondent can be presumed to have been intended to trade on Complainant’s reputation and goodwill in registering and using the domain name in dispute;
Respondent specifically denies each of Complainant’s contentions regarding bad faith.
Lack of rights or legitimate interest under Policy ¶ 4(a)(ii) does not automatically translate into a finding of bad faith under Policy ¶ 4(a)(iii).
Proof of ¶ 4(a)(iii) generally requires more than assertions of bad faith. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
The Panel finds that Complainant has failed to carry its burden of proof under ¶ 4(a)(iii) of the Policy.
Complainant not having established all three elements required under the Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the Complaint be dismissed.
Bruce E. O’Connor, Panelist
Dated: March 29, 2010
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NATIONAL ARBITRATION FORUM
 This contention is more properly considered with reference to the issue of rights or legitimate interest under Policy ¶ 4(a)(ii) and bad faith under Policy ¶ 4(a)(iii). A determination of “confusing similarity” under Policy ¶ 4(a)(i) involves only the comparison of a disputed domain name and a trademark. That determination is different than the test for trademark or trade name infringement based on “likelihood of confusion” or “confusing similarity” that also involve a comparison of the markets in which the parties operate.
 See www.esignal.com./exchanges/exch_list.aspx, available on Complainant’s <esignal.com> website.
 Respondent uses the trademark ESIGNALINDIA.COM on its <esignalindia.com> website.