Complainant is Everypath, Inc., Santa Clara, CA, USA ("Complainant") represented by Julia Anne Matheson, of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. Respondent is EPJ, Las Vegas, NV, USA ("Respondent").

The domain name at issue is "everypathjapan.com" registered with Network Solutions.

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.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 1, 2001; the Forum received a hard copy of the Complaint on June 4, 2001.

On June 5, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name "everypathjapan.com" is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On June 5, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 25, 2001 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@everypathjapan.com by e-mail.

In the time period between June 5, 2001 and June 7, 2001, the Forum received several confusing emails, from varying email addresses, claiming to represent Respondent. None of these emails complied with the formal response requirements set forth in Rule 5. One such email indicated that a court case was going to be filed regarding the domain name in dispute. The Forum requested a copy of the court documents; however, no documents were ever received by the Forum. The Forum received no further communication from these varying email addresses.

Having received no official Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On June 28, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed the Hon. James A. Carmody as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

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

A. Complainant

B. Respondent

Complainant is a leading provider of scalable, secure wireless application software solutions. Complainant’s products allow companies to use any form of wireless, broadband, or voice devices, such as smart phones, two-way pagers, voice telephones, interactive TV, and wireless PDAs, to access a single data infrastructure.

Complainant has subsidiaries located around the globe including: Everypath Europe Ltd., located in the United Kingdom; Everypath Europe GmbH, located in Germany; Everypath India, located in India; and, most significantly, its newly formed Japanese subsidiary Everypath Japan K.K., located in Japan.

Complainant showcases its products and services at its website, located at <everypath.com.>

Respondent is not and has never been a licensee of Complainant. Respondent is not and has never been otherwise authorized by Complainant to use Complainant's EVERYPATH mark.

Having been widely promoted among members of the general consuming public since 1999, and having exclusively identified Everypath, Complainant’s EVERYPATH mark symbolizes the tremendous goodwill associated with Everypath.

Complainant owns numerous applications for its EVERYPATH mark in the United States and elsewhere throughout the world, including the following representative examples:

Complainant also owns the domain name EVERYPATH.COM, which was registered on September 30, 1999, and which has been used to identify Everypath’s website since on or about that date.

On April 30, 2001, Complainant issued a press release announcing the formation of a new Japanese subsidiary, Everypath Japan K.K. Respondent registered the domain name in question on April 30, 2001.

Respondent currently uses the domain name to display a commercial banner advertisement.

Respondent has an established history of cybersquatting. Respondent registers trademark-related domain names under numerous aliases, including the names Brian Evans, B. Evans, Merry Christmas Everyone!, Website in Development, Entredomains, Inc., Domains, and C.M.E., Inc. Each of Respondent’s aliases shares the same address.

Complainant’s trademark rights in the EVERYPATH mark predate Respondent’s registration of the domain name in question.

On May 24, 2001, Complainant, through its counsel, sent Respondent a demand letter notifying Respondent of Complainant’s exclusive rights in the EVERYPATH mark and name, and demanding that Respondent cease and desist from further use of the domain name.

On that same day, Respondent replied via email and offered to sell the domain name to Complainant for $20,000. In his email, Respondent claimed to be a Las Vegas headliner named Brian Evans, and sought to date his rights in the domain name with a claim that his former distribution company was called "Everypath Japan Distribution." Respondent claimed that the overlap of Everypath’s press release and the Domain Name’s registration date was merely a coincidental result of a recent ownership transfer of the challenged domain name by Respondent from one entity to another. On that same day, Respondent made numerous telephone calls to counsel’s office using a variety of aliases including Brian Evans and Ira Levin, an alleged attorney of Brian Evans, in which he demanded an immediate settlement of the parties’ dispute. In each instance, the caller’s voice was identical.

On May 26, 2001, Respondent sent an additional email to counsel for Complainant, claiming that prior emails were written by a mischievous younger brother, and lowering the demand price for the domain name to $12,000.

On May 29, 2001, Respondent sent yet another email to counsel in which he demanded a response to his settlement demands. On May 30, 2001, Respondent sent another email, and falsely claimed to have received a telephone call from Complainant’s counsel in which Complainant’s counsel offered to settle the dispute.

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."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

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.

Complainant does not hold a trademark registration in the EVERYPATH mark. However, the Policy or Rules do not require a registered trademark in order for a Complainant to claim rights in a mark. See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the Complainant's trademark or service mark be registered by a government authority or agency for such rights to exist).

Prior UDRP Panels have held that pending trademark applications serve as evidence of rights in a mark. See Phone-N-Phone Services (Bermuda) Ltd. v. Levi, D2000-0040 (WIPO Mar. 23, 2000) (finding that the domain name was identical or confusingly similar to the complainant’s pending service mark application); American Anti-Vivisection Soc’y v. "Infa dot Net" Web Servs., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that the fact that the Complainant held the domain name prior to the Respondent’s registration, as well held a pending trademark application in the mark, evidences rights in the domain name and the mark therein contained). Given this, the Panel here determines that Complainant’s exclusive use of the EVERYPATH mark and its pending trademark applications provide evidence of Complainant’s rights in the EVERYPATH mark.

The domain name "everypathjapan.com" fully incorporates Complainant’s trademark and trade name EVERYPATH. The addition of the word Japan does not sever the link between the EVERYPATH mark and Complainant’s business. Therefore, the domain name "everypathjapan.com" is confusingly similar to Complainant’s EVERYPATH mark and name. See CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the domain name <cmgiasia.com> is confusingly similar to complainant’s CMGI mark); Net2phone Inc, v. Netcall SAGL, D2000-0666 (WIPO Sept. 26, 2000) (finding that the respondent’s registration of the domain name <net2phone-europe.com> is confusingly similar to complainant’s mark).

The requirements of Policy ¶ 4(a)(i) have been satisfied.

As revealed above, Respondent has repeatedly and elaborately fabricated the truth about his legitimate interests in the domain name at issue. In addition, Respondent’s use of the domain name and repeated attempts to sell the domain name reveal that he did not register nor intend to use the domain name for any legitimate purpose. FAO Schwarz v. Zuccarini, FA 95828 (Nat. Arb. Forum Dec. 1, 2000) (finding no rights or legitimate interests in the domain names faoscwartz.com, foaschwartz.com, faoshwartz.com, and faoswartz.com where Respondent was using these domain names to link to an advertising website); J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the websites that are located at the domain names at issue, other than to sell the domain names for profit). Therefore, Respondent’s claim to have a legitimate interest in the domain name should be regarded as plainly false.

The Panel holds that Pursuant to Policy ¶ 4(c): (i) Respondent is not using and has not used or is not demonstrating and has not demonstrated an intent to use the domain name in connection with a bona fide offering of goods or services; (ii) Respondent is not and has not been commonly known by the domain name; and (iii) Respondent is not making legitimate noncommercial or fair use of the domain name, without intending to mislead and divert consumers or to tarnish Complainant’s EVERYPATH mark for commercial gain. The Panel concludes that the Respondent has no rights or legitimate interests in the domain name in question, as required by Policy ¶ 4(a)(ii).

Respondent’s registration and use of the domain name meet the bad faith requirements set forth in Policy ¶ 4(b).

Specifically, Respondent registered the domain name "everypathjapan.com" for the purpose of selling it to Complainant for an amount substantially in excess of his documented out-of-pocket expenses. Policy ¶ 4(b)(i). Given Respondent’s registration of the domain name on the same day as Complainant’s Japan expansion announcement and then Respondent’s subsequent offers to sell the domain name, the Panel concludes that Respondent did not have any other purpose in registering the domain name. See Cree, Inc. v. The Domain Name You Have Entered is For Sale, FA 94790 (Nat. Arb. Forum May 25, 2000) (finding bad faith where the Respondent purchased the domain names on the date of the Complainant’s press release regarding a merger and business expansion).

In addition, Respondent has consistently engaged in a pattern of registering trademark-related domain names in order to prevent the owner of the mark from reflecting the mark in a corresponding domain name. Policy ¶ 4(b)(ii). See General Electric Co. v. Forddirect.com, Inc., D2000-0394 (WIPO June 22, 2000) (finding that the Respondent engaged in a pattern of conduct, by registering over fifty domain names such as <amazondirect.com> and <lycosdirect.com>, and intended to prevent holders from using their marks in corresponding domain names).

Lastly, upon information and belief, Respondent is profiting from its use of Complainant’s EVERYPATH mark by receiving commissions for the advertisement on Respondent’s website. The Panel finds that Respondent uses the domain name to intentionally attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s EVERYPATH mark as to the source, sponsorship, affiliation and endorsement of Respondent’s activities. Policy ¶ 4(b)(iv). See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted users to advertisements).

Based on the above, the panel concludes that the Respondent registered and used the domain name in bad faith, as required by Policy ¶ 4(a)(iii).

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "everypathjapan.com" be transferred from the Respondent to the Complainant.