EM Consulting Group, Inc. v. co Administrator
Claim Number: FA1211001470350
Complainant is EM Consulting Group, Inc. (“Complainant”), represented by Paul F. Evelius of Wright, Constable & Skeen, L.L.P., Maryland, USA. Respondent is co Administrator (“Respondent”), represented by Farage Yusupov, New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <helion.com>, registered with ! #1 HOST KOREA, INC.
Each of the undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Karl V. Fink (Ret.), as Panelist
Douglas M. Isenberg, as Panelist
Roberto A. Bianchi, as Chair
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 8, 2012; the National Arbitration Forum received payment on November 8, 2012.
On November 8, 2012, ! #1 HOST KOREA, INC. confirmed by e-mail to the National Arbitration Forum that the <helion.com> domain name is registered with ! #1 HOST KOREA, INC. and that Respondent is the current registrant of the name. ! #1 HOST KOREA, INC. has verified that Respondent is bound by the ! #1 HOST KOREA, 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 9, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 29, 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@helion.com. Also on November 9, 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 29, 2012.
A deficient Additional Submission was received from Complainant on December 5, 2012.
A timely Additional Submission was received from Respondent on December 10, 2012.
On December 13, 2012, pursuant to Respondent’s request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (ret.) and Douglas M. Isenberg as Panelists, and Roberto A. Bianchi as Chair.
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
In
its Complaint, Complainant contends the following:
The disputed domain name is identical or confusingly similar to the HELION service mark, in which Complainant has rights. Complainant registered this mark with the United States Patent and Trademark Office (“USPTO”) since June 12, 2012. Complainant has used the service mark in commerce for many years. Complainant’s use of the service mark is evidenced by the Internet website of Helion Automotive Technologies, a name under which Complainant has traded for many years. Complainant has maintained that website, prominently associating the word “Helion” with the services that it offers, for many years.
On February 6, 2012, Complainant registered the domain name <helion.co> that is almost identical to the disputed domain name, with Network Solutions, LLC, a domain name registrar. Since on or about that same date, the domain name <helion.co> has resolved to the website of Helion Automotive Technologies, the business in which Complainant uses the service mark.
Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no evidence that Respondent has made any use of, or engaged in demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not, as an individual, business, or other organization, been commonly known by the disputed domain name. Respondent is making no legitimate non-commercial or fair use of the disputed domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the service mark. Complainant has no relationship whatsoever with Respondent and has never authorized Respondent to use the disputed domain name or any other domain name. These facts, by themselves, demonstrate that Respondent has no rights or legitimate interests in the disputed domain name.
The disputed domain name currently resolves to a directory website featuring links to a third-party website unrelated to Complainant’s business. This fact supports the inference that Respondent receives pay-per-click fees from those links and is further evidence that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent has listed the disputed domain name for sale at the auction website <Sedo.com>. This fact further demonstrates a lack of rights or legitimate interests in the disputed domain name.
The disputed domain name was registered and is being used in bad faith: There are circumstances indicating that the disputed domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant or to a competitor of Complainant, for valuable consideration in excess of Respondent’s out-of-pocket costs directly related to the disputed domain name, and that, by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with Complainant’s service mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location.
Respondent registered the disputed domain name on October 7, 2012. The disputed domain name is already listed for sale at <Sedo.com>. This is evidence that Respondent registered and is using the disputed domain name in bad faith. The disputed domain name currently resolves to a directory website featuring links to a third-party website unrelated to Complainant’s business. This fact supports the inference that Respondent receives pay-per-click fees from those links and is further evidence that Respondent registered and is using the disputed domain name in bad faith. A “reverse” Whois database search reveals that Respondent has registered many domain names other than the disputed domain name.
Also, the HELION mark was registered with the USPTO at the time Respondent[1] registered the disputed domain name. These facts support the conclusion that, at the time it registered the disputed domain name, Respondent had actual knowledge of Complainant’s service mark[2]. See Grundfos A/S v. Tex. Int’l Prop. Assocs., D2007-1448 (WIPO Dec. 14, 2007)(stating that “those who register domain names, and particularly those who register domain names in large numbers using automated programs and processes, are not allowed to simply turn a blind eye to the possibility that the names they are registering will infringe or violate the rights of trademark owners. That responsibility derives from paragraph 2 of the Policy, and in particular the words: ‘It is your responsibility to determine whether your domain name registration infringes or violates someone else’s rights.’”).
B. Respondent
In its Response, Respondent contends as follows:
The disputed domain name is not identical or confusingly similar to a trademark or service mark in which Complainant has rights. Respondent does not dispute that Complainant’s service mark may on its face appear similar to the <helion.com> domain. However, Respondent requests the Panel to consider the timeline of Complainant’s use of the “Helion” name and its service mark application in the context of the domain name’s history. According to its website, Complainant claims to have been in business for 14 years. However, Complainant disclosed in its service mark application that it became known as Helion Automotive Technologies as late as 2005 (which coincides with the time it registered the domain name <heliontechnologies.com>, a full decade after <helion.com> was established and had been used by The Helion Design. Of equal importance is Complainant’s decision to apply for the HELION service mark as recently as October 2011, knowing that the <helion.com> domain continued to be in a rightful and uninterrupted chain of ownership.
Complainant’s argument regarding confusion is further undermined by the fact that it knowingly chose to trade under a generic name, such as Helion, knowing that a myriad of companies were already using that name in a variety of fields and industries, including Complainant’s own field of information technology, both in the United States and around the world.
Furthermore, several companies had already registered identical trademarks with the USTPO, both in 2005 when Complainant adopted the name Helion Automotive Technologies, and in October of 2011 when Complainant applied for the HELION service mark. Complainant knew it was entering a crowded group of companies known as “Helion” and could not have reasonably expected to have rights in the service mark insofar as claiming confusion between a long-established site and a newly registered service mark. Complainant’s registration of the <helion.co> domain name in 2012 bears no relevance to any of Complainant’s arguments and does not grant Complainant any rights to the disputed domain name. Complainant uses the <helion.co> domain name merely as a forwarding address to the “<www.heliontechnologies.com>” website and does not use the <helion.co> address in any marketing or promotional materials.
Respondent has rights or legitimate interests in respect of the disputed domain name. Respondent is a bona fide web publisher and developer and has a legitimate business interest in attracting web traffic to its published websites, from which it derives advertising, sales, or commissions revenue. Regularly purchasing domain names for current and future development projects is an inherent and prerequisite part of a web publisher’s business. Due to the scarcity of premium, generic domains, web publishers regularly commit significant financial resources to purchasing valuable domains from existing owners or intermediaries, as Respondent has with the purchase of the <helion.com> disputed domain name. Contrary to Complainant’s allegation, Respondent did not “register” this domain name for a mere nominal fee. Respondent thoroughly researched the meaning of the word, the domain name’s history, and chain of ownership, and entered a highly publicized auction held by a legitimate owner of the domain.
Respondent uses free domain management tools offered by <sedo.com> (“Sedo”) and similar tools offered by other companies to manage its domain names, including those in active development and host live sites. The tools offered by Sedo include tracking visitor traffic by country, language, referring URL, and related keywords. That, in turn, allows the publisher to study the domain name’s audience and determine a development direction in light of the existing visitors’ interests. While Sedo’s default settings automatically mark newly parked domain names as “for sale,” Respondent, contrary to Complainant’s allegations, has never listed <helion.com> for an auction and has since removed any reference that might incorrectly mark the domain as “for sale.”
A generic word, such as “helion,” does not imply any specific goods, products, or services, and thus has a broad marketing appeal, which explains the high closing price it reached in the auction. “Helion” can be used for web publications serving industry news, unique content, or community forums related to financial services, insurance, media, entertainment, design, real estate, or any other industry that customarily uses phonetically pleasing, premium names.
As a bona fide web publisher and developer, Respondent is in a unique position to use the domain to further its legitimate business interest without being commonly known by the name contained in the domain. Not dissimilar to public relations companies, which create brands for a living, web publishers develop sites in a variety of fields and subject matters, and successful sites often become known by their domains and become brands in and of themselves. Respondent has created several such sites and has in fact been a frequent target of cybersquatting, where third parties use misspellings of Respondent’s brands to confuse Respondent’s audience and collect advertising fees
Complainant has provided no evidence of Respondent’s “intent for commercial gain misleadingly to divert consumers or to tarnish the Service Mark.” As such, Respondent, being a bona fide web publisher and developer, has the right and a legitimate business interest to use the disputed domain name it has rightfully purchased, for its web development projects.
The disputed domain name was not registered and is not being used in bad faith. There are no circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant or its competitor for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name. Respondent has never approached Complainant about possibly selling or otherwise transferring the disputed domain name to Complainant. In fact, Respondent has never communicated with Complainant for any reason and was not aware of Complainant’s interest in the disputed domain name. The first time Respondent had heard from Complainant was when it was served with the Complaint.
After purchasing the disputed domain name, Respondent began to collect traffic statistics about visitors to the domain in order to study its audience and explore possible uses for the domain name in Respondent’s business. From November 5 to November 29 (partial day statistics), <helion.com> has had 559 visitors, of which 71% came from outside the United States, namely from Europe (53% of all visitors) (Annex 13). Given that Complainant and its business are based in the United States, the majority of the visitors to the disputed domain name are not in Complainant’s market, and Complainant would be far from the best potential buyer of the domain, had the domain actually been for sale. Even in the United States, there are a number of prominent companies who trade under the “Helion” name, including those who have been doing business for much longer than Complainant has and those who own registered trademarks to the word “helion” in various lines of business.
Given Complainant’s extremely limited market consisting exclusively of car dealership employees, as stated by Complainant (Annex 2), it is highly unlikely that any significant portion of the visitors to “<www.helion.com>", if any and all, constituted Complainant’s customers or customers of Complainant’s competitors.
Complainant makes an assumption that Respondent paid a mere registration fee or a nominal price for the domain. On the contrary, Respondent committed significant financial resources to purchasing the domain for its own development portfolio and paid an aftermarket price similar to aftermarket prices of other generic domain names. As described in Section 4 [a], Respondent is a web publisher and developer and is not in the business of selling domain names. A “valuable consideration in excess of Respondent’s out-of-pocket costs” would likely price the domain name out of reach of most, if not all alleged buyers. Paying such a high price for a domain name with the mere hopes of selling it for a significant profit would be an imprudent business decision and an expensive gamble at best. Complainant fails to explain why it believes Respondent intended to sell the domain to Complainant for a valuable consideration in excess of Respondent’s out-of-pocket costs.
As discussed earlier, Respondent uses Sedo domain management tools to manage its domains, and Sedo marks all newly added domains for sale by default. Respondent has never promoted a sale of the domain or listed it for auction and has corrected all settings that might incorrectly mark the domain as “for sale.” Furthermore, even if the domain had been promoted for sale, given the documented traffic statistics to the domain, Complainant or its alleged competitors (whom Complainant has not listed) would make extremely unlikely candidates for the purchase of the domain.
Respondent carefully researched the domain name’s history and ownership chain, and the meaning of the word “helion” prior to entering the auction and made the decision to purchase the domain based on its evident and well-documented generic value for Respondent’s future web development projects.
Respondent did not acquire the domain in bad faith. Complainant’s allegation that Respondent acquired the domain for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant or a competitor of Complainant for valuable consideration in excess of Respondent’s out-of-pocket costs directly related to the domain name is not supported by evidence.
Respondent has not used the disputed domain name in bad faith. When building a site on top of a domain name that has existed for many years, it is a common and recommended practice among web developers to study the audience that the domain name already has and to analyze any existing traffic patterns, which is precisely what Respondent has done. “Parking” a domain with a company that provides free traffic analytics is the easiest and most cost-efficient way to study the traffic and allow the domain name to become indexed with search engines which often penalize expired domains names by de-indexing them from search listings.
While a “parked” domain name does generate an advertisement feed with the potential to earn revenue, in the case of <helion.com>, such revenue is de minimis, which was clearly evident from the first day it was parked. From November 6 to November 29, 2012 the domain name has generated $5.78, which amounts to 23 cents per day. On an annualized basis, this revenue would amount to a 0.89% APY, hardly an attractive return on a $9,445 investment. Thus, Complainant’s inference that the presence of advertisements on the <helion.com> page while Respondent was studying traffic to the domain name constitutes using the domain in bad faith is unsupported.
Complainant further makes an unsupported allegation that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with Complainant’s HELION mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location. Complainant includes a printout of advertisements in the annex to the Complaint. However, these advertisements are unrelated to Complainant’s business and create no likelihood of confusion between Complainant’s business and the advertiser companies.
Complainant includes a list of domains registered to Respondent and makes a baseless allegation that Respondent uses automated programs and processes to register domain names. The allegation is false. Respondent does not use automated programs to register domain names and has purchased all domain names in direct dealings with the rightful owners. Furthermore, owning multiple domain names is consistent with Respondent’s business and does not indicate or infer bad faith in Respondent’s purchase or use of the <helion.com> domain name.
Complainant states that at the time Respondent “registered the Disputed Domain Name, Respondent had actual knowledge of the Disputed Domain Name.” Respondent does not entirely understand what that claim states or alleges.
Complainant cites Grundfos A/S v. Tex. Int’! Prop. Ass0cs., D2007-1448
(WIPO Dec. 14, 2007) which states that “those who register domain names, and particularly those who register domain names in large numbers using automated programs and processes, are not allowed to simply turn a blind eye to the possibility that the names they are registering will infringe or violate the rights of trademark owners.” Complainant fails to show how this citation is relevant to its alleged bad faith argument. In fact, Complainant makes no argument that Respondent has infringed or violated its rights. Respondent’s acquisition of the domain is not an infringement of Complainant’s mark. The citation merely states that potential buyers must not infringe on others’ rights, which Respondent has not done.
Reverse Domain Name Hijacking. Complainant has attempted to deprive Respondent of a legally purchased and long-established domain name merely by registering a trademark and filing an aggressive complaint unsupported by substantial evidence. Filing such arbitrary complaints is an abuse both of the arbitration system, which in its turn is intended to relieve courts of excessive litigation, and of United States trademark law. The purpose of trademark law is not to grant one party a monopoly over a word, particularly a generic word, but to prevent customer confusion by instituting and enforcing rules against unfair competition. Complaints such as these cause significant financial stress to legitimate businesses by creating unnecessary legal expenses and wasted time. This case is particularly unsettling because Complainant is but one of several trademark owners of a generic word and the absolute newcomer to the large group of businesses already known by that name, yet it attempts to obtain the .com (the most desired and expensive) domain name at the cost of an arbitration complaint. Given Complainant’s limited market, filing such complaints is both unethical and unfair to countless other companies who have done business under the name for many years. Being an information technology specialist, Complainant is sophisticated enough to have knowledge about expiring domains and how to acquire them. Complainant could have easily looked up the expiration date of the domain name in a WhoIs database and entered the auction to bid against all other bidders (and would have likely won, given its much larger budget). Instead, Complainant chose to forgo the expense of purchasing the domain at an aftermarket price and attempted taking it by force from the auction winner. Respondent would also like to direct the Panel’s attention to what appears to be tampered evidence in the Complaint’s Annex 9, which is a printout of <helion.com> in a parked state. The footer of the exhibit indicates a referring URL of <Google.com> with the rest of the URL cut off. This is clear evidence that Complainant entered <helion.com> while conducting a Google search, likely in combination with another search word, instead of typing <helion.com> directly in the address bar. Such practices are common when the visitor is trying to induce a parked page to display certain advertisements by influencing the ad feed algorithm. It is likely that Complainant was attempting to cause <helion.com> to display advertisements related to Helion Automotive Technologies or its competitors but failed in doing so and forgot to re-enter the site directly prior to printing the exhibit. Respondent requests that the Panel makes a finding of reverse domain name hijacking against Complainant.
C. Additional Submissions
The Panel accepts Complainant’s additional submission despite the apparently late filing under NAF Supp. Rule 7(a), given Complainant’s unrebutted statement that it did not receive the Response until November 30 (and Complainant submitted its supplemental filing apparently on December 5). Although a strict reading of NAF Supp. Rule 7(a) would allow supplemental filings only “within five (5) Calendar Days after the date the Response was received by the Forum” (emphasis added), the Panel has the authority under Rule 10(a) to “conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules.”
The Panel, having decided to accept Complainant’s Additional Submission, reviewed this submission and found that none of the arguments therein contained changes the fact that the disputed domain name had been registered and used prior to the date Complainant began using its trade names containing the “Helion” term, and also prior to Complainant’s application for registration of its HELION service mark with the USPTO, a fact alleged in the Response, confirmed by the Panel, and a decisive reason for the Panel in finding that registration in bad faith was not proven. As a consequence, the Panel need not consider Respondent’s (timely) Additional Submission.
Complainant is a company providing computer maintenance and other IT services to automotive dealerships in the United States.
Complainant owns a USPTO registration for the word mark HELION, Registration No. 4,157,542, Registration Date June 12, 2012, filed on October 14, 2011, covering Installation, repair and maintenance of computers and computer peripherals; Maintenance and repair of computer networking hardware; Maintenance of computer hardware systems, of International Class 37. First use/First use in commerce: February 1, 2005.
Respondent is in the business of web publishing and developing websites.
The disputed domain name appears to have been registered and used in a website by third parties since 1996, prior to Complainant’s first use of the HELION mark in 2005.
The disputed domain name was registered on October 7, 2012. On October 12, 2012, Respondent purchased the disputed domain name in an auction held at <Snapnames.com> for US$ 9,445.
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.
By its trademark registration with the USPTO (Principal Register), Complainant has shown that it owns rights in the HELION service mark. See “Findings” above.
Since the disputed domain name, aside from the generic top-level domain (“gTLD”) “.com,” consists exclusively of the “helion” string, the Panel finds that the disputed domain name is identical to Complainant’s mark.
Since Complainant failed to prove bad faith pursuant to Policy paragraph 4(a)(iii) – see below – the Panel need not make a finding as to rights or legitimate interests in the disputed domain name. See Bidmania Co. v. Dale Cumming / Euro PC, D2012-0632 (WIPO May 12, 2012) (“Given the Panel’s findings in relation to the second element of Paragraph 4(a) of the UDRP Policy, consideration of the third element is not necessary as the elements are conjunctive.”)
Respondent has shown that the disputed domain name has been registered and used by other domain name holders much before Complainant began using the HELION mark – according to Complainant’s statement in its trademark application – or the “Helion” term in its trade name “Helion Automotive Technologies” in 2005. In fact, the first result of the “Wayback Machine” at the “<www.archive.org>” website visited by the Panel on December 23, 2012, shows that The Helion Design, a web designer, used the disputed domain name from 1996 to 1998 to offer its services; that from December 1998 to 2000 the website showed a webpage under the title of “Helion Videonica;” that from 2001 to 2006 the “<www.helion.com>” website showed again the title “The Helion Design,” and that in 2007 and 2008 the website was used by Stewart Securities, a full-service NASD broker and dealer. [3]
Complainant does not consider the priority issue in its Complaint, or contest it in its Additional Submission. Thus, Respondent’s explanation for having registered the disputed domain name mainly for being a “generic” domain name, is plausible, not because the term “helion” is truly “generic,” i.e. a sign defining the category or type to which certain goods or services belong, but because it corresponds to various different things, or refers to different persons. Confirming Respondent’s evidence, the Panel has done research on the Wikipedia at “<en.wikipedia.org/wiki/hellion>”, and found a disambiguation page listing the following meanings for “Helion”: Helion (chemistry), helium nucleus; Helion (meteoroid); Hélion de Villeneuve (c. 1270 – 1346), a medieval knight; Jean Hélion (1904–1987), a French painter; Helion Lodge; Helion, a character in John C. Wright's trilogy “The Golden Age”; Helion (publisher), a Polish publisher, and Helion (magister officiorum). The Panel notes that these meanings relate neither to Complainant, nor to its HELION mark or to Complainant’s maintenance services.
Nor did a Google search conducted by the Panel on December 23, 2012, suggest otherwise. In fact the first ten results consist of “Helion” companies and/or websites unrelated to Complainant. One has to read the second page of results to find Complainant’s trade name “Helion Automotive Technologies” and its website “<www.heliontechnologies.com>" for the first time, at the eleventh place.
It is true that the disputed domain name was once marked by the parking website <Sedo.com> as being “for sale.” However, Complainant failed to show that Respondent has “registered or […] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant […], pursuant to Policy paragraph 4(b)(i).” Obviously, this purpose of transferring the disputed domain name for profit requires previous knowledge of a complainant, a fact that Respondent flatly denies, and that Complainant failed to show. In its Response, Respondent contends that the first time it had heard from Complainant was when it was served with the Complaint. In the Panel’s view, Complainant failed to prove the opposite. It is true that Complainant had registered the HELION mark before Respondent acquired the disputed domain name, but it is equally true that the <helion.com> domain name was registered and used since as early as 1996 by other domain name holders, much prior to when Complainant began using or registered a trade name containing the “Helion” term, and before it applied for registration of the HELION service mark, in 2005.
For these reasons, the Panel finds that Complainant has not shown that Respondent registered the disputed domain name with Complainant’s mark in mind, a well-established requisite for finding domain name registration in bad faith. See Jet Marques v. Vertical Axis, Inc., D2006-0250 (WIPO May 26, 2006) (a finding of bad faith registration requires that respondent registered the domain name with complainant’s trademark in mind). This failure to prove registration in bad faith entails failure to prove jointly bad faith registration and bad faith use, as it is required in Policy paragraph 4(a)(iii), which is sufficient for a panel to deny a complaint.
Accordingly, the Panel finds that Complainant failed to prove the bad faith element.
Although Complainant failed to prove that Respondent acted in bad faith, the Panel did not find any element of bad faith in the Complaint, or that the Complaint was brought in an attempt at Reverse Domain Name Hijacking.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <helion.com> domain name REMAIN WITH Respondent.
Roberto A. Bianchi, Chair
Honorable Karl V. Fink (Ret.), Panelist
Douglas M. Isenberg, Panelist
Dated: December 26, 2012,
[1] In its Complaint, Complainant wrote “Complainant” but it is obvious that its argument refers to Respondent.
[2] Again, Complainant mistakenly wrote “Disputed Domain Name” instead of “Complainant’s mark HELION”.
[3] The Wayback Machine did not show any web pages posted on “ <www.helion.com>" after May 29, 2008.
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