national arbitration forum

 

DECISION

 

Word of God Fellowship, Inc. d/b/a Daystar Television Network v. Domain Administrator / DomainSmarty

Claim Number: FA1210001469447

 

PARTIES

Complainant is Word of God Fellowship, Inc. d/b/a Daystar Television Network (“Complainant”), represented by John T. Lynch of Adams, Lynch & Loftin, P.C., Texas, USA.  Respondent is Domain Administrator / DomainSmarty (“Respondent”), represented by Henri Straforelli, Washington, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <daystar.org>, registered with eNom, Inc.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Darryl C. Wilson, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on October 30, 2012; the National Arbitration Forum received payment on October 30, 2012.

 

On October 30, 2012, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <daystar.org> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name.  eNom, Inc. has verified that Respondent is bound by the eNom, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On November 1, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 21, 2012 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@daystar.org.  Also on November 1, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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.

 

A timely Response was received and determined to be complete on November 20, 2012.

 

Complainant submitted an Additional Submission on November 26, 2012 that was deemed to be in compliance with Supplemental Rule 7.

 

Respondent submitted an Additional Submission on December 3, 2012 that was deemed to be in compliance with Supplemental Rule 7.

 

On December 6, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

1.    Complainant owns or controls and operates a network of over 121 over-the-air television stations in the United States and broadcasts 24 hours a day, seven days a week, faith-based, Christian, interdenominational, multicultural programming. 

2.    Complainant broadcasts domestically on every major cable system, as well as internationally via cable and satellite, reaching over 680 million households globally.

3.    Complainant owns a service mark with the United States Patent and Trademark Office ("USPTO") for the DAYSTAR mark (Reg. No. 3,457,799 filed Nov. 6, 2007; registered July 1, 2008). 

4.    The name DAYSTAR has been established as the logo and trade name of Complainant in all of the business and Internet activities of Complainant for at least 20 years.  As a result of Complainant’s television reach and activities the DAYSTAR mark has become widely recognized as the brand and identity of Complainant, and a secondary meaning and common law trademark has been established for the DAYSTAR mark since prior to the filing of its service mark in 1995. 

5.    Complainant registered its primary domain name of <daystar.com> on March 5, 1995. 

6.    Respondent’s <daystar.org> is identical or confusingly similar to Complainant’s DAYSTAR mark because people who search for Complainant’s website online may come across the disputed domain name instead of Complainant’s official website. 

7.    Respondent registered <daystar.org> on February 12, 2004.

8.    Respondent has no rights or legitimate interests in the disputed domain name because;

                                                  i.    Respondent is not commonly known by the disputed domain name.

                                                 ii.    In the eight years since registering the disputed domain name Respondent has failed to use the disputed domain name or make demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, or any other legitimate use for the website.  Respondent’s website in connection with the disputed domain name has simply stated, “Daystar Ministries,” “We are updating our website and will be back soon,” and “For questions or enquiries please contact info@daystar.org.” 

                                                iii.    Respondent, after receiving notice of the Complaint, changed the text of the website, but this action has done nothing to resolve the conflict. 

9.    The <daystar.org> domain name was registered and is being used in bad faith because;

                                                  i.    Respondent’s only actual use of the disputed domain name has been to use the e-mail address associated with the vacant website to reply to confused Internet users seeking Complainant by stating libelous and damaging comments regarding Complainant. 

                                                 ii.    Respondent’s defamation of Complainant shows Respondent’s bad faith regarding the disputed domain name. 

                                                iii.    Respondent appears to have registered the domain name primarily for the purpose of disrupting Complainant’s business.

                                               iv.    Respondent has intentionally attempted to attract, for defamation purposes, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. 

                                                v.    Respondent has stated that its purpose in maintaining its website is to cause erosion and damage to the financial support of Complainant. 

                                               vi.    Respondent’s actions attempt to dissuade donors from Complainant’s ministries and charitable work with false statements about Complainant, coupled with crude and inappropriate language about Complainant and its operations. 

 

B. Respondent

1.    Daystar Ministries Society is the actual Respondent and true owner of the disputed domain name, and DomainSmarty is acting as a proxy registrant for Daystar Ministries Society.

2.    Respondent has used a privacy service to avoid spam that would otherwise appear through a public WHOIS profile. 

3.   The allegedly defamatory e-mails sent to Complainant were sent by someone who was fraudulently using the “info@daystar.org” e-mail account.  Respondent does not know how or when “the hacker” was able to steal the disputed domain name website and e-mail username and password.  The hacker also changed Respondent’s website to the “coming soon” page and took over the e-mail account. 

4.   Because the members of Daystar Ministries Society all have individual e-  mail addresses (not the info@daystar.org address), and because they are not tech-savvy people, they didn’t realize their website had been compromised.

5.    When Respondent’s representative received the first e-mail notice from Complainant it was then that Respondent first knew of the hacked website, and Respondent changed all passwords and usernames for the website and e-mail addresses. 

6.    At the current time, the new Daystar Ministries Society website is not yet finished, and the hacker deleted all of the backups for the previous website, so the “coming soon” page is the best that Respondent can do right now.

7.    Removing the disputed domain name from Respondent would “significantly disrupt and harm their ability to communicate with those who are booking or communicating with the members of their organization.”

8.    Respondent, as verified through <archive.org>, has had an active public website since the beginning of 2005.  Having a “coming soon” website does not indicate that the domain name has been abandoned or not been actively in use within the Respondent’s organization. 

9.    Respondent has not tried to mislead, divert or tarnish Complainant’s reputation. As noted, Respondent’s website and e-mail address was hacked and used without the knowledge of Respondent or its employees.

10. Respondent is known as Daystar Ministries Society, as reflected in its Certificate of Incorporation as a nonprofit organization. Respondent was incorporated in British Columbia in 1990 and has been well known as Daystar since that time. 

11. In addition to using the disputed domain name for e-mail and a website, the disputed domain name is included prominently on all printed material used by Respondent such as advertising, posters, and flyers distributed by churches and public venues. 

12. Respondent has continually used the disputed domain name since 2005. 

13. The disputed domain name was not registered to sell it, and was legitimately registered by Respondent in 2004 for use with Respondent’s nonprofit business.

14. Respondent’s website does not intentionally create confusion with Complainant’s mark or its website, as evidenced by the differences between the two active websites.

15. Respondent requests that the Panel find reverse domain-name hijacking.  In 2004, Respondent legitimately registered the disputed domain name and Respondent has used it for all internal and external communication with its supporters and donors.  The assertions made by Complainant are ridiculous and knowingly untrue, especially given the fact that Complainant has been in contact with Respondent several times over the past eight years to try and purchase the domain name.  Each time Complainant contacted Respondent, Complainant was told that the domain name was actively used and would not be sold for any less than a substantial amount. Respondent believes that Complainant knew that Respondent’s website and e-mail had been hacked and instead of contacting Respondent, Complainant chose to exploit the hacking situation to make its claims under the UDRP.

 

C. Complainant’s Additional Submission

1.    Respondent has not provided any proof of the “hacker” that it blames for the defamatory remarks in emails from Respondent about Claimant.  The logical inferences from the evidence mitigates against Respondent’s assertions.

2.    Respondent falsely claims that “taking away the daystar.org domain name from Respondent…would significantly disrupt and harm their ability to communicate with those who are booking or communicating with the members of their organization.”  In fact, Daystar Ministries Society a/k/a Daystar Ministries situated in British Columbia, Canada as an organization ended or ceased as of May 10, 2012. 

3.    Because Respondent has disbanded, Respondent has no rights or legitimate interests in the disputed domain name.  Since Daystar Ministries has ceased its use of the “Daystar” name and has merged into Vancouver Gospel Orchestra.

4.    Even assuming that there was a hacker, the reason that it took Respondent five months to notice is that Respondent no longer uses the disputed domain name and it has been abandoned.

5.    Complainant was not aware, as alleged by Respondent, that the disputed domain name’s e-mail was hacked and had no knowledge of who the anonymous writer was.

6.    If Respondent is allowed to keep the disputed domain name Complainant will be left open to similar future abuse and attacks, as Respondent has been grossly negligent in managing the domain name.  Complainant will be forced to pay whatever premium Respondent elects to set when there is no further recourse.

 

  1. Respondent’s Additional Submission

1.    Complainant is incorrect that the logical inferences are anything but what Respondent described in the Response.  The disputed domain name was hacked and the e-mails were sent by that hacker.

2.    While Respondent’s practices of not updating its website and using easy passwords may be foolhardy, they are not indicative that Respondent is not actively using the disputed domain name, or is using the domain name in a malicious way.

3.    While it is true that the choral/orchestra part of Daystar Ministries Society is transitioning into a gospel orchestra, the organization has not ended or ceased to operate.  Daystar Ministries Society, as an incorporated entity, continues to exist unchanged, and has every right to continue using the disputed domain name to represent their organization.

4.    Respondent intends to be known by both the Vancouver Gospel Orchestra and Daystar Ministries Society names, and intends to use the disputed domain name to denote the 22 years of history of the Daystar choral/orchestra group’s activity. 

5.    Respondent has no desire to sell the disputed domain name to Complainant or anyone else. 

6.    Complainant’s unfounded claims that Respondent’s hosting company or Respondent intentionally attacked Complainant are libelous and Complainant should provide evidence of such claims as they are wholly untrue and are being used to confuse the Panel.

 

FINDINGS

Complainant is the Word of God Fellowship corporation doing business as (d/b/a) Daystar Television Network who list its business address as Bedford, TX, USA. Complainant provided no information regarding its date of incorporation or whether it was incorporated with the d/b/a or adopted it later. Complainant is the USA registered owner of the service mark DAYSTAR for its television, internet, and satellite broadcasting services. Complainant provided no information regarding when or where its broadcasting began or how it progressed to its present state. Complainant claims to have established common law rights in the DAYSTAR mark that predate the 1995 filing for registration of the mark but no date is given nor support for any proof of usage prior to that time. The year 1995 does coincide with the time that Complainant registered its <daystar.com> domain name. The documents associated with Complainant’s USPTO registration indicate a first use date of DAYSTAR to be in 1997. Those documents also indicate a registration filing date of 2007. Documents also indicate that Complainant and Respondent discussed the potential sale of the disputed domain name at least as early as 2009.

 

Respondent’s assertions are made by an individual, Henri Straforelli, who indicates that “I am authorized to reply on behalf of Daystar Ministries Society, who is the actual Respondent and true owner of <daystar.org> .” Respondent list his location as Blaine, WA, USA. The only additional information given regarding Mr. Straforelli’s relation to the “true owner” is his statement that “the director of Daystar Ministries Society is a personal friend, which is why my company (Domain Smarty) takes care of the “internet stuff” for them.” The Daystar Ministries Society was incorporated in 1990 in British Columbia, Canada. Additional documents provided by the Respondent include a “WHO ARE WE?” letter addressed to the UDRP panel dated November 2, 2012. The letter states “The group is made up of volunteer singers and musicians who dedicated their talents to this ministry.” The letter also states that the focus of the group’s ministry since 1999 is to raise money for churches and orphanages in Russia. The document further indicates that performances have taken place throughout Canada and in parts of  Eastern Europe although no dates or exact locations are provided nor any details concerning the nature of the performances.

 

While Respondent also contends that from 1990 to present it “has been well known as simply “Daystar” since that time” there is no documentation provided to support that claim. Respondent’s evidence of past website activity is limited to email usage and references to archive pages which purportedly prove that the disputed domain and attendant past website(s) indicate a continuous internet presence since 2004. The referenced information does show usage in 2004, 2008, and 2011 but generally fails to reflect a continuous usage from 2004 to the present. Respondent blames its inability to supplement this information on an alleged “hacker” of its website.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

 

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

 

(1)  the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2)  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

 

Complainant asserts that, as a result of the reach of its broadcasting and other operations, DAYSTAR has become widely recognized as its brand and identity, acquiring secondary meaning and common law mark recognition. Complainant also owns a service mark with the USPTO for DAYSTAR (Reg. No. 3,457,799 filed Nov. 6, 2007; registered July 1, 2008). The Panel finds that Complainant’s service mark registration with the USPTO is sufficient for Complainant to establish rights in the DAYSTAR mark under Policy ¶ 4(a)(i).  See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).  In regards to Respondent’s actual physical location being in British Columbia, Canada, the Panel notes that Complainant need not own a trademark or service mark registration under the laws of Canada in order to establish Policy ¶ 4(a)(i) rights in its mark. The Panel recognizes that the Policy does not require that the mark in dispute be registered with any particular entity as a prerequisite to enforcement. 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 and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).

 

Complainant asserts that Respondent’s <daystar.org> domain name is identical or confusingly similar to Complainant’s DAYSTAR mark. The Panel notes that under UDRP Policy ¶ 4(a)(i), the applicable analysis for confusing similarity involves the composition of both the mark asserted and the disputed domain name.  The Panel thus concludes that the disputed domain name contains the DAYSTAR mark entirely, while only adding the generic top-level domain (“gTLD”) “.org.”  The mere addition of gTLD’s is insufficient to distinguish a domain name from another’s mark. Therefore, the Panel finds that the disputed domain name is identical to the DAYSTAR mark under Policy ¶ 4(a)(i).  See Microsoft Corp. v. Mehrotra, D2000-0053 (WIPO Apr. 10, 2000) (finding that the domain name <microsoft.org> is identical to the complainant’s mark); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003), (the addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis because top-level domains are a required element of all domain names).

 

Respondent makes no contentions with regards to Policy ¶ 4(a)(i).

 

The Complainant has proven this element.

 

Rights or Legitimate Interests

 

The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show 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). Complainant has met this burden.

 

Complainant asserts that Respondent is not commonly known by the disputed domain name. Complainant notes that the domain name is registered to a privacy service. Respondent contends that it used the privacy shield within the WHOIS information to avoid spam e-mails, and that such use is an industry standard. Respondent offers no evidence of the industry standards it alludes to. Respondent further claims that it has been well known as simply Daystar since 1990 but provides no support for this bare assertion. Based on its “WHO ARE WE ?” statement one may conclude that Respondent has been known by its corporate name, in full or part, to concert attendees in Western Canada and Eastern Europe, other aficionados of its music who may have bought CD’s on-line, and those associated with the charitable organizations it has been supporting in Russia since 1999. The panel finds that there is insufficient evidence to indicate that the Respondent is commonly known by the disputed domain name. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), (respondent was not commonly known by the disputed domain name if the respondent was not authorized to use the complainant’s mark and the WHOIS information did not indicate that the respondent was commonly known by the disputed domain name).

 

Respondent’s assertion and documentation regarding its July 20, 1990 incorporation as Daystar Ministries Society, as reflected in its Certificate of Incorporation is uncontested. The same is true of Respondent’s contention that it used the privacy shield within the WHOIS information to avoid spam e-mails, and that it has made use of the domain name for both email purposes and marketing. Although the Complainant disputes the quality of the use, the Respondent clearly sold music CD’s, provided concert pictures and posted related information on its website at some times in the past. Respondent argues that in addition to the usage noted above, the disputed domain name is included prominently on all printed material used by Respondent such as advertising, posters, and flyers distributed by churches and public venues. However, Respondent provides no examples of those printed materials. 

 

Respondent’s archive pages do evidence past web usage of a website beginning with its domain name registration in 2004 although continuity is lacking. Respondent principally blames the “hacker” for its current state of affairs, admitting that its “new website is not yet finished” and that “coming soon” is the best it can do. Respondent’s reasoning is plausible in light of the fact that the alleged libel and defamation which Complainant asserts primarily arose from a single recent incident. Complainant had sought out Respondent on multiple occasions prior to that incident in efforts to purchase the disputed domain name. Complainant makes no allegation of defamatory remarks or illicit behavior by Respondent over the years of its correspondence prior to the incident that Respondent blames on hacking. The Panel also notes that the Respondent registered and operated its website for 5 years prior to Complainant’s initial contact regarding purchase of the domain name. While Respondent’s evidence exhibits some weaknesses, the Panel finds that it is sufficient to establish rights and legitimate interests in the disputed domain name. See Workshop Way, Inc. v. Harnage, FA 739879 (Nat. Arb. Forum Aug. 9, 2006) (finding that the respondent overcame the complainant’s burden by showing it was making a bona fide offering of goods or services at the disputed domain name); see also Bankinter S.A. v. BI Fin. Inc., D2000-0460 (WIPO Sept. 5, 2000) (stating that “[b]y September 1999, when first approached by the Complainant, the Respondent or its predecessors had used the <bankinternet.com> website for almost 4 years, thus demonstrating “a bona fide offering of goods and services”).

 

The Complainant has not proven this element.

 

Registration and Use in Bad Faith

 

Because the Panel concludes that Respondent has rights or legitimate interests in the <daystar.org> domain name pursuant to Policy ¶ 4(a)(ii), the Panel finds that Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).  See Lockheed Martin Corp. v. Skunkworx Custom Cycle, D2004-0824 (WIPO Jan. 18, 2005) (finding that the issue of bad faith registration and use was moot once the panel found the respondent had rights or legitimate interests in the disputed domain name); see also Vanguard Group Inc. v. Investors Fast Track, FA 863257 (Nat. Arb. Forum Jan. 18, 2007) (“Because Respondent has rights and legitimate interests in the disputed domain name, his registration is not in bad faith.”).

 

Although the Complainant asserts common law rights in the DAYSTAR mark “for at least 20 years”, or 1992, and “since prior to its filing date in 1995” there is nothing provided to substantiate these claims. No information on Complainant’s corporate and/or business establishment regarding the use of DAYSTAR is provided. Complainant did register its own domain name in 1995 but did not file for registration of its mark with the USPTO until 2007. Complainant’s filing documents indicate a first use date of the mark in 1997.

 

While the Respondent’s statement that it registered the disputed domain name “when it became publicly available in 2004” indicates that the Respondent did search for the availability of “Daystar” as a domain name, Complainant did not own the registered DAYSTAR mark at that time. Complainant provides nothing to indicate that Respondent knew or should have known that Complainant had any rights in the mark at that time. While Respondent’s domain name search should have yielded information regarding Complainant’s similar domain name, domain name registrations do not automatically give rise to protectable trademark rights. At a minimum proof of secondary meaning is required and not a mere assertion that it existed.

 

Normally if the disputed domain name predates the protected mark the complaining mark holder cannot succeed and a full UDRP analysis is unnecessary. See Intermark Media, Inc. v. Wang Logic Corp., FA 139660 (Nat. Arb. Forum Feb. 19, 2003): “To raise a claim against another party that would support transfer of a domain name registration, Complainant must demonstrate interests in a mark that predate the domain name registration.” However, where the Complaining party asserts that it had common law rights that predate the registration of the disputed domain name a full analysis is warranted. Here the disputed domain was not registered until 2004 and the Complainant asserted rights dating back as early as 1992. But because the only evidence provided of Complainant’s earliest usage is it’s domain registration date of 1995 Complainant lacks proof that it had common law rights that would have put Respondent on notice. Therefore Respondent did not register the domain name in bad faith. See General Growth Properties, Inc., Provo Mall L.L.C. v. Steven Rasmussen/Provo Towne Centre Online, D2003-0845 (WIPO Jan. 15, 2004)

(“As a general rule, when a domain name is registered before any trademark rights are established, the registration of the domain name is not in bad faith since the registrant could not have contemplated the complainant's non-existent right. In certain situations, however, when the respondent is aware of the complainant and the circumstances indicate that the aim of the registration was to take advantage of potential complainant rights, bad faith can be found.”).

 

Nothing indicates the Respondent was aware of the Complainant’s claim to ownership of the DAYSTAR mark. Further since Respondent’s usage of the mark began in 1990 and Respondent began making a bona fide offering of legitimate goods and services on its website in 2004 the Respondent did not use the domain name in bad faith.

 

The Complainant has not proven this element.

 

Reverse Domain Name Hijacking

 

Even though the Panel finds that Complainant has failed to satisfy its burden under the Policy, this does not necessarily render a finding of reverse domain name hijacking on behalf of Complainant. The Respondent has not shown that the Complainant acted in bad faith when it filed the instant case. See Church in Houston v. Moran, D2001-0683 (WIPO Aug. 2, 2001) (noting that a finding of reverse domain name hijacking requires bad faith on the complainant’s part, which was not proven because the complainant did not know and should not have known that one of the three elements in Policy ¶ 4(a) was absent).

 

The Panel concludes that no reverse domain name hijacking is presented by the facts of this case and therefore rejects Respondent’s request to find such a violation by the Complainant. The facts indicate that the parties were originally engaged in concurrent use of the word “Daystar” as part of their respective corporate names, for similar goods or services in distinct geographical regions of the world. In cases of simultaneous use in globally divergent venues priority of appropriation is relative. Complainant seems to undoubtedly have been first to use Daystar in full or in part for its goods and services in the USA and was first to register DAYSTAR in the USA. Respondent appears to undoubtedly be the first to use the mark in Western Canada and Eastern Europe. The parties respective presentations only support the territorial limitations of their respective rights. At some point in time the parties became aware of each other and began to take steps to more securely protect their interest in the abbreviated version of their corporate names. Those actions provoked a conflict of almost biblical proportions. Neither party wishes to willingly sacrifice nor have the circumstances brought forth a season of sharing. However, based on the evidence presented neither the spirit of the law nor the UDRP policy dictate that the panel strike down the use of the abbreviated name by conferring favor to one user over the other.

 

The Respondent has not proven this claim.

 

DECISION

Because the Complainant has failed to establish all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be DENIED. Further, because the Respondent has failed to support its claim the Panel concludes that Respondent’s requested finding is also DENIED.

 

Accordingly, it is Ordered that the <daystar.org> domain name REMAIN WITH THE Respondent.

 

 

Darryl C. Wilson, Panelist

Dated: December 20, 2012

 

 

 

 

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