DECISION

 

        Marty Stuart. v. Marty Stuart Fan Page C/O Sherry Mattioli

Claim Number: FA0309000192600

 

PARTIES

The Complainant is Marty Stuart Marty Stuart Tours, Inc., Nashville, TN (“Complainant”) The Respondent is Marty Stuart Fan Page c/o Sherry Mattioli, Nashville, TN (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <martystuart.com>, registered with Register.Com.

 

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.

 

Edward C. Chiasson, Q.C. as Panelist.

 

PROCEDURAL HISTORY

 

The Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on September 3, 2003; the Forum received a hard copy of the Complaint on September 5, 2003.

 

On September 4, 2003, Register.Com confirmed by e-mail to the Forum that the domain name <martystuart.com> is registered with Register.Com and that the Respondent is the current registrant of the name.  Register.Com has verified that Respondent is bound by the Register.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 September 11, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of October 1, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@martystuart.com by e-mail.

 

A timely Response was received and determined to be complete on September 24, 2003.

 

On October 8, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Edward C. Chiasson, Q.C. as Panelist.

 

RELIEF SOUGHT

 

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

 

BACKGROUND AND PARTIES’ CONTENTIONS

 

A. Complainant

 

                        The following information derives from the Complaint. 

 

                        The Complainant is a professional entertainer whose name is recognized world wide.  He has been performing professionally as a musician since 1971.

 

                        The Complainant enjoys a valuable reputation and goodwill of  value as a result of (a) the extensive sales and advertising of numerous musical compositions and recordings bearing his name; (b) the fame and acclaim surrounding his musical services, individually, and the popularity of the various film media in which he has appeared; (c) the widespread public recognition of the name MARTY STUART and the association of that name with the Complainant; and (d) the high quality and nature of the Complainant’s musical compositions, musical recordings and musical services.

 

            This goodwill, which has come to be associated with the unique and distinctive features of the Complainant and his work, has given great monetary value to the Complainant’s exclusive right to exploit the name and trademark, MARTY STUART. 

 

            The Complainant’s common law trademark MARTY STUART has undoubtedly acquired secondary meaning in the mind of the public. 

 

                        The Complainant’s name and trademark is distinctive, famous and widely recognized throughout the United States and the world by millions of music fans. See Roberts v. Boyd, D2000-0210 (WIPO May 29, 2000) (finding that trademark registration was not necessary and that the name "Julia Roberts" has sufficient secondary association with the Complainant that common law trademark rights exist); Jagger v. Hammerton, FA 95261 (Nat. Arb. Forum Sept. 11, 2000) (Complainant held common law trademark rights in his famous name MICK JAGGER); see also Smart Design LLC v. Hughes, D2000-0993 (WIPO Oct. 18, 2000) (holding that ICANN Policy 4(a)(i) does not require Complainant to demonstrate ‘exclusive rights,’ but only that complainant has a bona fide basis for making the complaint in the first place).

 

                        The Respondent registered the subject domain name on August 5, 2000.

 

                        The subject domain name is identical to the Complainant’s trade name and service mark, Marty Stuart, and is confusingly similar.

 

                        A music index Internet site to which the subject domain name resolves, identifies the Respondent’s site as the “Official Fan Site”.  The page contains a link to the Respondent’s website.

 

                        One of the Complainant’s attorneys corresponded with the Respondent in October 2001 in an attempt to resolve the dispute amicably.  Counsel also had several telephone conversations with the Respondent regarding the subject domain name. 

 

                        The Complainant, through legal counsel, offered to reimburse the Respondent for any expenses incurred in the registration and operation of the website to which the subject domain name resolves. The Respondent at first agreed to transfer the subject domain name, but ultimately refused. 

 

                        The Respondent is not known commonly by the trade name or service mark and does not  have any rights to the use of the trade name and service mark, Marty Stuart. The Respondent is not licensed or otherwise authorized to use the Complainant’s mark.    See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark or never applied for a license or permission from Complainant to use the trademarked name); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding that Respondent is not commonly known by the mark contained in the domain name where Complainant has not permitted Respondent to use the NOKIA mark and no other facts or elements can justify prior rights or a legitimate connection to the names "Nokia" and/or "www.nokia.com").

 

                        The Respondent’s use of the subject domain name and mark is in violation of the Complainant’s common law trade name rights and his rights of privacy and publicity.  It is also a violation of the United States Trademark Act of 1946 (15 U.S.C. '1125).

 

                        The Respondent’s use of the domain name has created confusion in the consumer marketplace, as evidenced by a reference to the subject domain name at the end of an recent Associated Press newswire article picked up by the Kansas City Star. 

 

                        The Respondent’s website has numerous advertisements on the home page, linking to such commercial entities as the Country Music Television network, WSM Radio, Country Music Hall of Fame and the Grand Ole Opry.  Even though the Respondent posts a disclaimer at the bottom of the web page, such vivid and colorful advertisements indicate affiliation between these entities and the website and authorization from the Complainant.  These advertisements create a likelihood of confusion as to source and affiliation between the Respondent and the Complainant. 

 

                        The Respondent’s various uses of the Complainant’s mark as a "fan site" does not substantiate Respondent’s rights or legitimate interests. See Marino v. Video Images Prod., D2000-0598 (WIPO Aug. 2, 2000) (stating, "[I]n fact, in light of the uniqueness of the name <danmarino.com>, which is virtually identical to the Complainant’s personal name and common law trademark, it would be extremely difficult to foresee any justifiable use that the Respondent could claim. On the contrary, selecting this name gives rise to the impression of an association with the Complainant which is not based in fact."); see also Kasparov v. Am. Computer Co., FA 94644 (Nat. Arb. Forum May 30, 2000) (finding no legitimate rights and interests when Respondent used Complainant's name as a portal to a website which, without permission, associated the Complainant as an endorser of Respondent's causes).

 

                        The subject domain name is so similar to the Complainant’s trademark name, that a reasonable Internet user would assume that it is somehow associated with the Complainant’s common law mark. See Surface Protection Indus., Inc. v. The Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding the domain name confusingly similar "so as to likely confuse Internet users who may believe they are doing business with Complainant or with an entity whose services are endorsed by, sponsored by, or affiliated with Complainant; hence, satisfying the confusing similarity requirement"); see also Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access Complainant’s website, think that an affiliation of some sort exists between the Complainant and the Respondent, when in fact, no such relationship would exist).

 

                        The Respondent has posted personal messages addressed to the Complainant which imply that it has authority from the Complainant to do so. 

 

                        By its actions, the Respondent is misleadingly diverting consumers away from the Complainant’s website using the subject domain name.  This diverts business away from the Complainant and relies on the goodwill established by the Complainant in over thirty years of performing under the trade name.  An online music listing of official fan websites identifies the Respondent’s website alongside the Complainant’s. 

 

                        The Respondent intentionally misrepresented her contact telephone number in the registration of the subject domain name as 615-111-1111.  This is an indication of bad faith intent.

 

                        The Respondent's conduct prevents the Complainant from identifying his mark, MARTY STUART in a corresponding domain name.

 

                        The Respondent's conduct demonstrates intent to disrupt the business of the Complainant, as described in Paragraphs 4(b)(iii) of the ICANN Uniform Domain Name Dispute Resolution Policy and demonstrates bad faith.

 

                        The Respondent's conduct demonstrates an intent to attract, for commercial gain, Internet users to the Complainant’s website as described in Paragraphs 4(b)(ii) of the ICANN Uniform Domain Name Dispute Resolution Policy and demonstrates bad faith. 

 

                        By the actions described herein, the Respondent is tarnishing the trade name and service mark of the Complainant and preventing him from utilizing his legitimate trade name and mark.  See Canadian Tire Corp. v. 849075 Alberta Ltd., D2000-0985 (WIPO Oct. 19, 2000) (finding that the domain names <ecanadiantire.com> and <e-canadiantire.com> are confusingly similar to Canadian Tire’s trademarks); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that Respondent’s domain name <eebay.com> is confusingly similar to the Complainant’s registered trademark).

 

                       

B. Respondent

 

            The following information derives from the Response

 

The Respondent agrees that the Complainant may have acquired secondary meaning or common law trademark as a country music musician, entertainer. The Respondent further agrees that the subject domain name is identical to the Complainant’s name.

 

The Respondent has been a devoted fan of the Complainant, since November 1991, has attended more than 100 concerts and shows performed by the Complainant, purchased every commercially released album recorded by the Complainant and has spent well over $1,500 on licensed merchandise available for sale to the the Complainant’s fans.

 

The Respondent was an 11-year member of the Complainant’s fan club until the Complainant terminated the membership on May 15, 2003.

 

The Respondent has met the Complainant dozens of times and the Complainant knows the Respondent by name.

 

The Complainant has known about the website to which the subject domain name resolves from talking with his fans and the website was the topic of discussion between the Respondent and the Complainant during a meeting (also attended by the Complainant’s then manager, his fan club president, and the Respondent’s husband) in the Complainant’s office in May 1998 wherein the Complainant offered to pay for the hosting of the Respondent’s website and the Respondent declined the offer.

 

The Respondent has no control over other websites that choose to link its website with theirs or as to how it may be listed. The Respondent works a full-time job and cannot be expected to spend time “policing” the web to find websites that link the website to which the subject domain name resolves with other websites.

 

The Respondent is not familiar with and has never (prior to viewing the Exhibits filed by the Complainant in this proceeding) visited the websites listed in the Complaint.   The Respondent never instructed or requested a link to her website from those websites. She has emailed the webmasters and/or contacts of those websites requesting that the listing be changed to “Unofficial.”

 

The Respondent notes that at the bottom of the Club Nashville links (which currently can be viewed at the top of that webpage) it states: “Here are the official websites of country’s major artists. We’ve also found that some of the more interesting (and sometimes better) are maintained by fans or other 3rd parties. For that reason, we sometimes include a superb non-official site.”

 

            On October 17, 2002 (not 2001 as stated in the Complaint), the Respondent received a telephone call from the Complainant’s attorney. He asked if the Respondent had registered the subject domain name. The Respondent replied that she had. The attorney then asked if the Respondent would transfer the subject domain name to the Complainant as it was a “condition” of the Complainant’s recording contract that the Complainant have control of the subject domain name. The “condition of his recording contract” came up again in the conversation. The Respondent agreed to transfer the subject domain name based on that condition.

 

Nothing in the Complaint or affidavit filed in support alludes to that statement.

 

The Complainant has a signed recording contract without having control of the subject domain name. The Complainant’s attorney attempted to mislead the Respondent into agreeing to transfer the domain name. During the conversation the lawyer also stated that “I know you’re a friend of the family” and that he had heard “good things” about the Respondent’s website. Respondent had one telephone conversation with the attorney, not “several” as stated in the 

 

After realizing she had been misled by the attorney and after researching the web on the issue of domain name disputes, the Respondent realized she had a legitimate right to use the subject domain name and was under no obligation to transfer it to the Complainant.

 

            Respondent launched the Marty Stuart Fan Page on January 25, 1998. It was hosted initially at <designer.com/martystuart> then later at <pagedepot.com/martystuart>.

 

The website has been hosted at the domain name, <martystuart.com> since August 9, 2000. The Respondent created the website on the Complainant (her favorite country music artist) because there was little information on the Internet about the Complainant.  The Respondent wanted an avenue where fans could gather, share information, photographs, concert reviews, memorable Marty moments, fan comments, i.e.: a website for the fans, by the fans. The website features 1,285 webpages and over 1,000 photos.  Since beginning work on the website in September 1997, the Respondent has spent thousands of hours creating and maintaining the website. The Complainant was aware the website existed and has said nothing to Respondent to have it removed.

 

Because the Respondent appears to be the Marty Stuart Fan Page and the Marty Stuart Fan Page has been hosted at the website to which the subject domain name resolves for more than three years, there could be a valid argument that the Respondent has been commonly known by the domain name.

 

The Respondent had no prior knowledge of the article referred to in the Complaint and was not contacted by its author.

 

The website to which the subject domain name resolves has no advertising banners and is not part of any referral programs.  The “advertisements” alluded to by the Complainant are simply colorful links to other country music websites that fans might like to visit. Country Music Television (CMT) and Great American Country (GAC) play the Complainant’s music videos and the Complainant has appeared many times (the latest being within the past two months) on their programs. WSM Radio plays the Complainant’s music and the Complainant has appeared live in the studio on many occasions. The Complainant is a member of the Grand Ole Opry and performs on its stage frequently. The Complainant served as President of the Country Music Foundation (which oversees the Country Music Hall of Fame) for six years. Those links are there for the convenience of the Complainant’s fans who may want to visit those websites from the Respondent’s website. The “vivid and colorful advertisements” featured on the website are graphics or logos through which the links can be accessed via a mouse.

 

The Respondent has never received any income from the website and in addition to spending countless hours a week voluntarily working on and updating the website, pays a monthly fee to have the website hosted.

 

The main page of the website to which the subject domain name resolves clearly reads “The Marty Stuart Fan Page.” The Respondent has a disclaimer at the bottom of the page as well as on the “About This Website” and “Welcome Page” pages.

 

The Respondent has never indicated its website was an official website or an official fan site for the Complainant. An animated display on the main page says “Have a Marty Party, Visit Marty’s Official Website” and it links to the Complainant’s Official Website. Another link to the Official Website appears first on the “Other Marty Links” page.

 

In addition, since 1999, the Complainant’s Official Website (up until a redesigned website was launched after September 8, 2003) provided a link to the Respondent’s website. The Respondent enjoys supporting the Complainant and his music, maintaining an outstanding, informative fan website and providing the Complainant’s fans with information they cannot find anywhere else. The website is updated frequently and provides a legitimate online service to the Complainant and his fans.

 

As a long-time fan of the Complainant, the Respondent has never and would never use the subject domain name for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. In fact, the website to which the subject domain name resolves benefits and promotes the Complainant at no cost to the Complainant.

 

Prior domain dispute decisions have ruled that a fan website may constitute legitimate, noncommercial, fair use of the domain name, i.e.: Van Halen v. Morgan, Case No. D2000-1313 (WIPO, December 20, 2000) (finding status as a fan might perhaps justify a finding of legitimate interests if Respondent provided evidence of offline fan activity of which the website was an extension or if the website had been operational for a sufficient period); The Estate of Tupac Shakur v. Barranco, Case Nos. AF-0348a and AF-034b (eResolution, October 23, 2000) (finding the position asserted by the Claimant, if accepted would effectively prohibit any fan club from being established on the internet if it mentioned in the site name an artist’s name, where part or all of that name related to a registered mark or even perhaps transgressed claims of common law rights in a name. It would also permit persons in the position of this Claimant to unjustly enrich themselves by confiscating the work of fans and admirers in establishing a website supporting their favorite artists without any opportunity for compensation); Estate of Gary Jennings v. Submachine, Case No. D2001-1042 (WIPO, October 25, 2001) (finding legitimate interests when using the domain name in connection with a website to share information on Complainant and where Respondent clearly indicates on its website that it is not affiliated or endorsed by the Complainant and is, therefore, not misleadingly diverting consumers).

 

            The Respondent registered the subject domain name for the express purpose of hosting the Marty Stuart Fan Page for the fans of Marty Stuart and for no other purpose. The Complainant was well aware of the website’s existence at the time it was registered and did not object to it at that time. The Respondent has never offered to sell the domain name to the Complainant or anybody else. There is no commercial gain to the Respondent through use of the domain name. The website generates no income for the Respondent and Respondent pays a fee to have the website hosted.

           

Since 1996, the Complainant’s official website has been hosted at <martyparty.com>.

 

The subject domain name was registered, at that time, to Jim Salmon who had registered several hundred celebrity names and later linked them to an “adult” website. Twenty-seven country music artists filed a class action lawsuit on April 6, 1998 in U.S. District Court and on July 6, 1998 were awarded ownership of their domain names. The Complainant was not a party to the lawsuit and Mr. Salmon retained registration of the name <martystuart.com>.

 

On August 5, 2000, the Respondent checked the availability of the domain names connected with the Complainant and found that <martystuart.net> was registered to the Complainant (through his fan club, although the registration of that domain name has since expired and, as of the date of this Response,<martystuart.net> is again available for registration, but that the subject domain name was available.

 

The Respondent registered the subject domain name upon seeing it was available. The Complainant had an equal opportunity to register the subject domain name. The Respondent had never made note of the expiration date of the registration and had no idea how long the name had been available (one day, one week, one month, six months).

 

Had the Complainant wanted the subject domain name, he could have noted the expiration date in the WHOIS Database and registered it immediately upon its availability. The Complainant has had not one, but two opportunities to control the domain name prior to its registration by the Respondent.

 

In addition, how can the Respondent be preventing the Complainant from identifying his mark when the Complainant has allowed his registration (since 1999) of <martystuart.net> to expire? If the Respondent were to intentionally prevent the Complainant from identifying his mark, it would have registered all available extensions of the Complainant’s name.

 

The Complainant has known the Marty Stuart Fan Page was hosted at the website to which the subject domain name resolves, and the Respondent has had personal contact with the Complainant and his representatives, but the issue of the subject domain name was never raised until October 17, 2002 (again, not 2001 as stated in the Complaint).

 

The Respondent vehemently denies that it is a cybersquatter.  There has been no pattern of such conduct. The Complainant clearly knows that accusation is untrue.

 

The initial registration of the subject domain name contained the correct phone number. It was changed for security reasons because it is the Respondent’s home phone number and the WHOIS database allows access to millions of people. The contact information, address and email address are correct and the correct phone number is listed on the billing information.

 

The Respondent registered the subject domain name for the sole purpose of hosting the Marty Stuart Fan Page website for the fans of the Complainant and for no other purpose. The website was meant to complement the Complainant’s Official website and offer the fans an avenue for sharing thoughts, comments and experiences attending concerts and meeting the Complainant.

 

The Complainant, while accusing Respondent of using the website for commercial gain, has offered no evidence of such.  The allegation is untrue. The Respondent’s website has generated no income over the past six-and-one-half years and the Respondent has spent over $2,500 of her own money to host the website.

 

The Complainant’s Official website is ranked one of the most popular search engines and the Respondent’s listing in the search engines is clearly indicated as the Marty Stuart Fan Page.  Parts of the Respondent’s disclaimer are clearly featured in most of the descriptions.

 

Until a recent (September 2003) redesign of the Complainant’s official website, the Respondent’s website was linked off the “Links” page of the Official Website, implying approval and support of the website and for the Respondent to own and maintain the site.

 

Should there be the appearance of confusion, inadvertently it may have been caused by the Complainant himself after bringing the Respondent into his fan club as co-editor of the fan club newsletter.

 

On June 16, 1998, the Respondent was introduced at the Complainant’s Fan Club Party (attended by several hundred members) by the Complainant’s fan club president. The exact introduction as taken from a videotape of the fan club party was “Sherry has a website and is doing a wonderful job and I know lots of you have written to her.” For some unknown reason, the plan of the Respondent working with the fan club never materialized although the news had been posted on the Complainant’s AOL message board and other email groups and was announced in the Complainant’s fan club newsletter stateding: “New Co-Editor. Also named as the co-editor is Sherry Mattioli. Many of you have met Sherry and her husband Mario at Marty’s shows or at the Opry. She will be helping contribute information for the newsletters. She also has a great fan site on the web at http://www.designer.com/martystuart.”

 

On September 10, 1998, in a face-to-face conversation, the Complainant asked the Respondent to write a column in his quarterly fan club newsletter. In that same conversation, the Respondent said that it would like the Complainant to view its website and mentioned that an employee of the Complainant could show it to the Complainant. The Complainant responded, “I want you to show it to me” and said the Respondent could come by the office “sometime” and show it to the Complainant. That never happened, but the Respondent did write four columns for the newsletter. The Respondent’s website was mentioned in two of those columns (along with a picture of the Complainant with the Respondent) as well as the Respondent’s email address as a point of contact for the fans. Although this was prior to Respondent’s registration of the subject domain name, this appears to associate the Respondent and the Respondent’s website to the Complainant in the eyes of the Complainant’s fans. 

 

The Complainant, his employees and representatives knew the Respondent was using the Complainant’s name in the title of the website and clearly knew the fan site existed. This “implied consent” is evidenced by the discussion of the website in a meeting between the Complainant and the Respondent, the introduction of the Respondent at the fan club party mentioning the website, the link to the Respondent’s website from the Official Website, the mention of the Respondent’s website in the Complainant’s fan club newsletters and in emails to the Respondent from the Complainant’s employees and representatives proving they had viewed the website.

 

The Complainant asked a certain fan if she had seen the Respondent’s website.

 

The Complainant has never requested the Respondent not to use its name in the title of the website and it has never indicated in any conversation with the Respondent that the Respondent could not use its “name”. 

 

The Respondent asserts that many fans of the Complainant have benefited from the website to which the subject domain name resolves.

 

                                                 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

 

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

 

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

(2)    the Respondent has no rights or legitimate interests in respect of the domain name; and

(3)    the domain name has been registered and is being used in bad faith.

 

Reference has been made to domestic court and domain name dispute decisions. While these are neither controlling not binding on this Administrative Panel, often reference to them is of assistance.

 

Identical and/or Confusingly Similar

 

The Complainant asserts that the subject domain name is identical and confusingly similar.  The propositions do not equate and require different analyses.

 

The Respondent concedes that the Complainant has acquired a common law trademark for the words MARTY STUART and that the subject domain name is identical to it.

 

The Administrative Panel is satisfied that the Complainant has met the requirements of Policy Paragraph 4(a)(i).

 

Rights or Legitimate Interests

 

The Respondent registered the subject domain name for the purposes of a fan club of the Complainant.  Standing alone, this supports a legitimate interest in the subject domain name.  The conduct of the Complainant suggests that initially he either supported or did not oppose the Respondent’s efforts to support him, but it is clear that he no longer does so.

 

Much has been written concerning domain names associated with fan clubs and sites that criticize. They both engage considerations of free speech and intellectual property rights.

 

The Complainant has a common law trademark right to the words MARTY STUART. Although the Respondent contends that she is using the subject domain name to support the Complainant, it is that Complainant’s decision who should use its trademark for that purpose.  The Complainant’s objection to the subject domain name deprives the Respondent of a legitimate interest in it.

 

The Administrative Tribunal is satisfied that the Complainant has met the requirements of Policy Paragraph 4(a)(ii).

 

Registration and Use in Bad Faith

 

A finding that a Respondent does not have a legitimate interest in a domain name that is identical to the mark of another does not lead automatically to a conclusion of bad faith, but the facts that give rise to the finding may be relevant to the bad faith inquiry.

 

In this case, the Respondent’s purpose for registering the subject domain name was to support the Complainant.  Her use has had the same purpose.  There is no evidence that she either intended to sell the subject domain name or seeks any personal financial benefit from it.

 

It is clear that the registration and use of the subject domain name blocks the Complainant from acquiring and using it, but standing alone that is not determinative of bad faith.  The fact that the Complainant did little to acquire the subject domain name when others pursued similar domain names and that he has allowed a related domain name to expire, also undermine an adverse finding based on blocking.

 

The Complainant appears not to have been completely frank concerning the exchange between his attorney and the Respondent, but little turns on the Respondent’s reversal of her willingness to transfer the subject domain name in the context of bad faith.

 

On the material presented to it, the Administrative Panel is not satisfied that the Complainant has met the requirements of paragraph 4(a)(iii).

 

DECISION

 

Having not established all three elements required under the ICANN Policy, the Administrative Panel concludes that relief shall be DENIED.

 

It is ordered that the Complaint is dismissed

 

 

 

Edward C. Chiasson, Q.C.

Dated: October 22, 2003

 

 

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