National Arbitration Forum

 

DECISION

 

Entre-Manure, LLC c/o Craig B. Stern v. Integriserv c/o Matt "Red" Boswell

Claim Number: FA0606000741534

 

PARTIES

Complainant is Entre-Manure, LLC c/o Craig B. Stern  c/o Bruce Leonard Beal, Esq., 209 Avenida Fabricante 128, San Clemente, CA 92672 (“Complainant”).  Respondent is Integriserv c/o Matt "Red" Boswell (“Respondent”), represented by Lee J. Plave, of DLA Piper Rudnick Gray Cary US LLP, 1775 Wiehle Avenue, Suite 400, Reston, VA 20190-5159.

 

 

REGISTRAR AND DISPUTED DOMAIN NAME 

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

 

PANEL

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

 

Debrett Lyons as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on June 28, 2006; the National Arbitration Forum received a hard copy of the Complaint on June 30, 2006.

 

On June 29, 2006, Register.Com confirmed by e-mail to the National Arbitration Forum that the <entremanure.com> domain name 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 July 3, 2006, the Forum issued a deficiency notice to the Complainant requiring it to amend certain formal matters.  The Complainant did so.

 

On July 5, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 25, 2006 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@entremanure.com by e-mail.

 

A timely Response was received and determined to be complete on July 25, 2006.

 

The Complainant filed an Additional Submission dated July 28, 2006 pursuant to the Forum’s Supplemental Rule #7 which were timely received on July 31, 2006.

 

In response thereto, the Respondent filed a Surreply (Additional Submission) dated August 2, 2006 which was also admitted as it was received in a timely manner according to the Forum's Supplemental Rule #7.

 

On August 3, 2006, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Debrett Lyons as Panelist.

 

After reviewing the parties’ submissions, the Panel requested the Forum to issue the Respondent with an Order (dated August 9, 2006) under Rule 12 of ICANN’s Uniform Domain Name Dispute Resolution Policy requiring it to supply further and better quality copies of certain of its evidence by no later than August 14, 2006.  The Respondent did so in a timely manner.

 

RELIEF SOUGHT

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

 

PARTIES’ CONTENTIONS

 

A. Complainant

 

The Complainant alleges that it and the Respondent are direct competitors in the business of dog waste removal services.

 

It asserts that in 2001 it adopted the business name “Entre-Manure Dog Waste Removal Service” and that on August 3, 2001 it registered the domain name <entre-manure.com>.

 

The Complainant alleges that sometime after February 12, 2002, those in the (United States) business of dog waste removal services founded an organization by the name of APAWS (“Association of Pet Waste Specialists”) aimed at promoting their joint interests.  It asserts that it joined APAWS on February 20, 2002 and that the Respondent joined the organization on February 28, 2002. 

 

The Complainant states that the Respondent was aware of its so-named “Entre-Manure Dog Waste Removal Service” but nonetheless on May 26, 2002 registered the disputed domain name <entremanure.com>.  It asserts that the disputed domain name is virtually identical and is confusingly similar to the Complainant’s domain name.

 

The Complainant alleges that it subsequently discovered that the website associated with the disputed domain name re-directs internet users to the URL <petbutler.com>.  The Respondent is said to conduct its business under the business name “Pet Butler.”

 

The Complainant states that on August 17, 2005 the Respondent filed a trade mark application for the mark “ENTRE-MANURE.”  It states that the USPTO examiner refused the application because it so nearly resembled the Complainant’s prior trade mark registration number 3,060,025 protected for the same/similar services that confusion or deception was likely.  The Complainant goes on to assert that the USPTO examiner also refused the evidence of the date of first use in commerce claimed in the Respondent’s trade mark application.

 

On the basis of these assertions, the Complainant reasons that the Respondent has adopted a domain name confusingly similar to a name in which it has rights and since the Respondent trades under the business name, “Pet Butler,” the registration and use of the disputed domain name to divert internet users to <petbutler.com> are both acts of bad faith.

 

Moreover, the Complainant reasons that the Respondent has no rights or legitimate interests in the disputed domain name because the Complainant had established common law rights in the service mark ENTRE-MANURE before the Complainant registered the disputed domain name. 

 

Finally, the Complainant refers to the letters of demand dated February 23, 2006 and April 21, 2006 from its attorneys to the Respondent which went unanswered as further evidence of both lack of legitimate interest and bad faith on the part of the Respondent. 

 

B. Respondent

 

The Respondent chose to make a series of formal admissions and denials before turning to its grounds of defense. 

 

The Panel has here noted only those admissions and denials which have a bearing on the later reasoning in this decision.

 

The Respondent denies that it conducts business under the name “Integriserv.”

 

The Respondent denies that the Complainant is the common law owner of the service mark ENTRE-MANURE and by implication denies the first use allegations made by the Complainant.

 

The Respondent admits receipt of the Complainant’s correspondence dated February 23, 2006 and April 21, 2006.

 

In its defense, the Respondent states that although the Complainant’s domain name is virtually identical to the disputed domain name, the Complainant is unable to prove that the Respondent has no rights or legitimate interests in the disputed domain name and cannot show that the Respondent registered the domain name in bad faith.

 

The Respondent alleges that it has legitimately used the expression “entre-manure” in connection with “ bona fide offers of pet waste removal services for several years prior to the dispute” and by way of example has submitted in evidence advertisements of its services from November 2000 onwards.  It has also submitted third party evidence.  This evidence is a crucial part of this case and is detailed below under Findings, Section 12.

 

In short, the Respondent goes on to argue that it cannot have either registered or used the disputed domain name in bad faith since it had a legitimate interest in the name.

 

C. Additional Submissions

 

Both parties made Additional Submissions which were admitted and taken into account by the Panel.  For the sake of orderly analysis, those submissions will be addressed where relevant in the Findings and Discussion which follow.

 

FINDINGS

Both sets of submissions carry significant factual inaccuracies and it is partly the intention of this section of the decision to correct them.

 

Generally

 

1.         Complainant alleges, and Respondent admits, that they both conduct dog waste removal businesses.

 

2.         The Panel accepts that the Complainant uses the name ENTRE-MANURE to conduct its business.

 

3.         Respondent admits that it uses the name “Pet Butler” to conduct its business.

 

4.         Complainant is the owner of the domain name <entre-manure.com>, registered on August 27, 2001 (not on August 3, 2001 as claimed).

 

5.         Respondent is the owner of the domain name <entremanure.com>, registered on May 26, 2002.

 

6.         Craig B. Stern is the registered proprietor of United States Federal trade mark registration number 3,060,025 for the mark ENTRE-MANURE in classes 37 and 40 (the “Trade Mark Registration”).

 

7.         United States Federal trade mark application number 78/694,078 for the mark “ENTRE-MANURE” was filed by Pet Butler, Inc. on August 17, 2005 in class 37  (the “Trade Mark Application”).

 

The Evidence

 

8.                  The Complainant provided no evidence of use or reputation or common law rights

in the mark ENTRE-MANURE.

 

9.                  The Complainant provided no evidence of its claim that sometime after February

12, 2002, those in the business of dog waste removal services founded an organization, APAWS, nor that it joined APAWS on February 20, 2002, nor that the Respondent subsequently joined the organization.

 

10.       The Complainant provided no positive evidence of its claim that the Respondent was aware of its so-named “Entre-Manure Dog Waste Removal Service” prior to May 26, 2002 when the Respondent registered the disputed domain name.

 

11.       The Complainant provided no evidence of its claim that the Respondent knew of the Complainant’s use of the mark ENTRE-MANURE prior to May 26, 2002 through what the Complainant described as “personal, website, associational, and competitive interaction” (Complainant’s Additional Submission of July 28, 2006).

 

12.       The Respondent furnished 8 exhibits claiming to support its bona fide adoption and use of the term ENTRE-MANURE (Response, Annexures A-H).  They were:

 

12.1.    A November 2000 advertorial in “City and Country Pets” describing Pet Butler as self-proclaimed “Entre-manures;”

 

12.2.    A December 2000 advertorial in “AAGD Rooflines,” this time referring to Matt Boswell as the self-proclaimed “entre-manuer” (not, “entre-manure” as claimed in the Response);

 

12.3.    A June 2001 advertisement in “AAGD Rooflines” including the words “Call the ‘Entre-manure’” (Exhibit re-sent in response to the Panel Order dated August 9, 2006);

 

12.4.    A 2001 advertisement in the Frisco, Texas “Yellow Pages” including the words “Call the ‘Entre-Manure’;”

 

12.5.    A 2001 advertisement in the Collin County, Texas “Yellow Pages” including the words “Matt Boswell, ‘Entre-Manure’;”

 

12.6.    A December 2004 advertisement in “D Magazine” including the words “Call the ‘Entre-manure’;”

 

12.7.    A Spring 2005 direct mailing advertisement circulated in the Dallas/Fort Worth area ” including the words “Call the ‘Entre-Manure’;”

 

12.8.    An extract (pages 24-5) from the 2003 edition of the book “Top Performance” by author Zig Ziglar describing the business and entrepreneurial style of “Matt Boswell, Entre-manure.”

 

Trade Mark Application

 

13.       The Panel accepts that the Trade Mark Application was rejected primarily because of its conflict with the Trade Mark Registration.

 

14.       The Panel rejects the Complainant’s submission that the “Respondent’s application shows a date of first use in commerce, which evidence was rejected by the USPTO examiner’s response.”  The Panel observes that the Trade Mark Application claimed March 1, 1998 as the date of first use in commerce (Complaint, Exhibit 5).  That date went unchallenged in the examiner’s office action.  Instead, the specimen of use accompanying the Application was found “unacceptable as evidence of actual service mark use for waste disposal services because it is a printer’s proof and not the actual advertisement used in commerce” (Complaint, Exhibit 6).

 

Trade Mark Registration

 

15.       The Panel observes that whilst the application upon which the Trade Mark Registration issued (App. No. 78/458,471) claimed a first use in commerce date of “at least as early as October 31, 2001” (Complaint, Exhibit 2), the Certificate of Registration shows the date of first use in commerce as July 28, 2004.  The Panel accepts this later date to be correct as it is the date accepted by the USPTO examiner.

 

The Letters of Demand

 

16.       The Complainant alleges sending, and the Respondent admits receiving, cease and desist letters dated February 23, 2006 and April 21, 2006.  The Complaint exhibited those letters as Exhibit 7 and 8 respectively.  The Panel notes however that Exhibit 7 is a demand letter from the Complainant’s Solicitor to Matt Boswell of Pet Butler dated January 31, 2005, not February 23, 2006 (hereinafter, the “First Letter of Demand”).

 

17.       There is limited guidance as to the actual date of the First Letter of Demand however both the Respondent’s admission, and the Panel observation that the letter states in one place that “‘ENTRE-MANURE’ is a federally-registered service mark on the Principal Register of the USPTO (No. 3060025)” leads the Panel to decide that the letter was sent sometime after February 21, 2006 when the Trade Mark Registration matured and was first given its registration number.

 

18.       The Panel further observes that the First Letter of Demand carries the statement: “You can imagine Mr. Stern’s chagrin and emotion as he observed his unique servicemark, acquired through hard work and investment, being used by you in commerce, taken from him by you after personally meeting with him” (original emphasis).  The Panel finds nothing more to indicate if and when that meeting might have taken place.

 

The Identity of the Respondent

 

19.       The registrant of the disputed domain name is Integriserv c/o Matt “Red” Boswell.

 

20.       The Respondent is Integriserv c/o Matt Boswell  (not Integriserve as spelt in the Response)

 

            21.       The Response describes the “respondent” as Pet Butler, Inc.

 

22.              In the Response, Pet Butler Inc denies that it conducts business using the name,

            “Integriserv.” (Response, Para I.3)

 

            23.       Having regard to the evidence as a whole, the Panel treats Integriserv, Matt                               Boswell and Pet Butler Inc collectively as the Respondent.

 

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.

 

Identical and/or Confusingly Similar

 

As preliminary findings, the Panel holds the terms, ENTRE-MANURE  and  ENTRE MANURE to be virtually identical and to be confusingly similar.  It accordingly holds the use of one to effectively be use of the other. 

 

The Panel likewise holds that use of any of the terms “Entre-manure,” “Entre-Manure,” “Entre-Manures” or “Entre-manuer” is use of ENTRE-MANURE and ENTRE MANURE.

 

Turning to the specific requirements of Paragraph 4(a)(i) of the Policy, the Panel finds without hesitation that the disputed domain name <entremanure.com> is confusingly similar to the mark ENTRE-MANURE, and the only real question is whether this is a mark in which the Complainant has rights.

 

The Complainant is the owner of the domain name <entre-manure.com> but not of the Trade Mark Registration.  The domain name registration and Trade Mark Registration do not share a common address. The Complaint makes no effort to forge a link between Craig B. Stern and Entre-Manure LLC but it is observed that the Complaint, as originally filed, nominated the complainants as Craig Stern/Entre-Manure LLC and in response to the Forum’s July 3, 2006 deficiency letter (see above) amended the name of the Complainant to Entre-Manure LLC c/o Craig B. Stern.  Whilst the Complainant had the option to make the more elegant amendment to Craig B. Stern and Entre-Manure LLC, the Panel takes the pragmatic view based on the evidence as a whole that the Complainant enjoys the rights given by the Trade Mark Registration.

 

The Complainant therefore satisfies the first limb of the Policy.

 

Rights or Legitimate Interests

 

The Panel finds that the circumstances described in the Complaint are sufficient to constitute a prima facie showing by the Complainant of absence of rights or legitimate interest in the disputed domain name and to shift the evidentiary burden to the Respondent to show that it does have rights or legitimate interests in that name.  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000).

 

The Respondent’s key argument is that it does have legitimate interests in the disputed domain name (and so by extension can not have acted in bad faith).

 

It has been observed by panelists in formative decisions that there is a necessary connection between the elements of legitimate rights, on the one hand, and bad faith, on the other.  In particular, if it can be seen that a respondent in fact had rights in the domain name, then it is generally difficult to assimilate that with a conclusion that the respondent had acted in bad faith.

 

Paragraph 4(c) of the Policy sets out certain circumstances which if found by the Panel to be proved demonstrate the Respondent’s rights or legitimate interests to the domain name for the purposes of paragraph 4(a)(ii) of the Policy.  Those sets of circumstances are not exhaustive and other instances of legitimate interests might be in evidence however it is logical to first test the present facts against those given circumstances.  They are that:

 

(i)    before any notice to the domain name registrant of the dispute, the registrant used , or made demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;  or

 

(ii)   the domain name registrant (as an individual, business, or other organization) has been commonly known by the domain name, even if the registrant has acquired no trademark or service mark rights;  or

 

(iii)  the domain name registrant is making a legitimate non‑commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

Subparagraph 4(c)(iii) has no application to the facts of this case and was not pleaded by the Respondent.

 

Subparagraph 4(c)(ii) may have had application to the facts of this case but was not argued by the Respondent.

 

Subparagraph 4(c)(i) was argued by the Respondent.  Unlike the other scenarios, it requires a certain state of affairs to have existed before the Respondent had any notice of the dispute.  The first matter for the Panel is therefore to determine the earliest date when the Respondent knew of the dispute.

 

The Complainant advanced a number of reasons as to why the Respondent was “on notice” of its rights. One was the Complainant’s presence on the internet, but there is no reference in the Complaint even as to its web location, less still to the fact that the Respondent was somehow on notice of anything there. 

 

The Complainant’s Additional Submission refers to “personal, associational and competitive interaction” with the Respondent but in the absence of greater detail it is impossible to import any knowledge to the Respondent. 

 

There is the transmission of the Complaint itself by the Forum to the Respondent on July 5, 2006 but this is ante-dated by both letters of demand.  The date of the First Letter of Demand has been determined as no earlier than February 21, 2006 (see above) and the reference in that letter to a meeting between the principals cannot be given any value as there is no further evidence from either side that the meeting took place, or if it did, when it took place and what was under discussion.

 

The Complainant repeatedly refers to its trademark rights.  A question exists as to whether the Respondent was on constructive notice of the Complainant’s Trade Mark Registration.  In previous UDRP decisions, opinion has been split as to whether a respondent is on constructive notice of earlier registered trademark rights.  The affirmative viewpoint finds most consistent support where a complainant has a United States registered trademark and the respondent is located in the United States.  See Toronto Star Newspaper Ltd. v. Cohen, DTV2000‑0006 (WIPO Jan. 24, 2001); Kate Spade, LLC v. Darmstadter Designs, D2001‑1384 (WIPO Jan. 3, 2002); Alberto‑Culver Company v. Pritpal Singh Channa, D2002‑0757 (WIPO Oct. 7, 2002); Sterling Inc. v. Sterling Jewelers, Inc and Domain Traffic, D2002‑0772 (WIPO Nov. 13, 2002); The Sportsman’s Guide, Inc. v. Modern Limited, D2003‑0305 (WIPO Jun. 18, 2003).

 

As stated above, the UDRP Rules provide that the Panel may have regard to principles of law that it deems applicable in addition to the Policy. 

 

The Respondent is situated in the United States.  The Complainant is the proprietor of a Federally-registered trademark, registered on February 21, 2006.  The mark is on the Principal Register.  Registration of a mark on the Principal Register establishes constructive notice of the mark as a matter of Federal trademark law.  It can therefore be argued that registration of the mark put the Respondent on statutory notice of the Complainant’s rights in the mark on February 21, 2006.

 

If there is to be any advance on the date of February 21, 2006 it must depend on acceptance of the Complainant’s argument that it had common law rights in the name from as early as October 31, 2001 and that somehow the Respondent was on notice of those rights.

 

That argument does not survive scrutiny.  As previously noted, the Complainant did not provide any evidence of its alleged common law reputation.  Any such reputation hinges upon use of the mark in commerce.  That reputation could not therefore predate the earliest date of use of the mark in commerce accepted by the USPTO.  That date was July 28, 2004. 

 

Moreover, the proper question under Paragraph 4(c)(i) of the Policy is determination of the date when the Respondent first had any notice of the dispute.  Imputed knowledge of the Trade Mark Registration is not notice of the dispute.  Imputed knowledge of when the Complainant first used the mark or had a common law reputation is likewise not notice of the dispute.

 

In the absence of better evidence, the question before the Panel therefore becomes whether what was done by the Respondent prior to February 21, 2006 amounted to use, or preparations for use, of the disputed domain name in connection with a bona fide offering of services. 

 

Earlier UDRP decisions have held that even perfunctory preparations for use have sufficed.  See Shirmax Retail Ltd. v. CES Marketing Group, Inc., AF‑0104 (eResolution Mar. 20, 2000); Lumena s‑ka so.o. v. Express Ventures Ltd., FA 94375 (Nat. Arb. Forum May 11, 2000); Royal Bank of Canada v. Xross, AF‑0133 (eResolution Feb. 29, 2000).  This must follow from the fact that Paragraph 4(a)(ii) of the Policy refers to “rights” or “legitimate interests.”  The Panel takes the view that the draftsmen of the Policy used those two expressions deliberately, comprehending them to mean something different.  The Panel is of the opinion that “rights” implies a higher standard than “legitimate interests”. 

 

The distinction is inherent in subparagraph 4(c)(ii) of the Policy itself.  The Panel is of the view that the distinction between rights, on the one hand, and legitimate interests on the other is found in the parallel requirements of either use of the domain name, or demonstrable preparations for its use, the former giving rise to a “right” and the latter to a “legitimate interest.”  This is but one example and many other exist.

 

In this case, the Respondent has supplied examples of use of a name corresponding with the disputed domain name from as early as November 2000.  The Complainant in its additional submissions has criticized those use examples for a number of reasons which can be summarized as either (i) not constituting trade mark use, (ii) not use of a name sufficiently corresponding with the disputed domain name, (iii) use “blurred” by other, more dominant marks, or (iv) use post-dating the Complainant’s rights.

 

Those criticisms deserve attention and it is helpful, first of all, to revisit the wording of Paragraphs 4(a) (ii) and 4(c)(i) of the Policy.  First, we are reminded that the use must be in connection with a bona fide offering of services.  That is to say, the offering must not be a sham.  Secondly, the offering need only establish a legitimate interest and not necessarily a protectable right.  Finally, the name used must correspond to the disputed domain name.

 

In addressing the examples of use the Panel adopts the same numbering as was used under the section above entitled, Findings.

 

12.1.    The Panel holds that the November 2000 advertorial in “City and Country Pets” describing Pet Butler as self-proclaimed “Entre-manures” does not constitute trade mark usage; that is to say, it does not show use of the name in connection with an offering of goods or services;

 

12.2.    The December 2000 advertorial in “AAGD Rooflines” referring to Matt Boswell as the self-proclaimed “entre-manuer” suffers the same flaw;

 

12.3.    The June 2001 advertisement in “AAGD Rooflines” using the words “Call the ‘Entre-manure’” constitutes clear trade mark usage, notwithstanding the presence of other potential trade mark matter such as “Pet Butler” and the slogan “#1 in the #2 business.”  The Panel holds that the name “Entre-manure” is the distinctive element of the phrase and that the name is not “swamped” by the other potential trade mark material;

 

12.4.    The Panel makes the same finding in connection with the 2001 advertisement in the Frisco, Texas “Yellow Pages;”

 

12.5.    The Panel makes the same findings in connection with the 2001 advertisement in

            the Collin County, Texas “Yellow Pages;”

 

12.6.        The Panel makes the same findings in connection with the December 2004

            advertisement in “D Magazine;”

 

12.7.    The Panel makes the same findings in connection with the Spring 2005 direct

            mailing advertisement circulated in the Dallas / Fort Worth area;

 

Finally, the Panel holds that the extract from the 2003 edition of the book “Top Performance” by author Zig Ziglar referred to in 12.8 above is third party evidence that prior to 2003 the Respondent used the name “Entre-Manure” in connection with a bona fide offering of services.

 

The Panel accordingly finds that notwithstanding the lack of evidence available to satisfactorily identify an authoritative date when the Respondent was first on notice of this dispute pursuant to Paragraph 4(c)(i), there is clear evidence that the Respondent used a name corresponding with the disputed domain name in relation to a bona fide offering of services from at least as early as June 2001.  That date precedes by some years the earliest reliable date by which the Respondent was on notice of the dispute         (February 21, 2006), it predates both the Complainant’s own domain name registration (August 27, 2001) and Trade Mark Registration filing date (July 28, 2004) and officially recorded date of first use in commerce (April 26, 2003) and in the event that the Panel has erred in its decision, predates the Complainant’s first recorded claim to use in commerce of the name, being October 31, 2001.

 

The Panel notes with approval a footnoted comment in the Response that : “Section 4(a)(ii) of the Policy requires merely an analysis of whether Pet Butler has rights or legitimate interests in respect of the domain name and does not require a balancing of the value of Pet Butler’s common law rights to the mark vs. Complainant’s rights pursuant to a registered trade mark.”

 

The Panel remarks that on the facts there is a serious question to be tried in another forum.  The UDRP was not engineered to resolve trade mark disputes. Instead its aim is to stop bad faith registration and use of domain names.  See Lydian Capital Advisors, LLC v. Aldo Aquino/Lydian Capital Advisors SA, D2005-0260 (WIPO Apr. 24, 2005). 

 

So far as this Complaint is concerned, the Panel holds that the Complainant has not discharged its onus to show that the Respondent has no legitimate interests in the disputed domain name and so decides that the Complainant has failed to satisfy the second element in Paragraph 4(a) of the Policy.

 

Registration and Use in Bad Faith

 

For the reasons set out above, it is not necessary to reach a finding on this aspect of the Policy.

 

 

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

 

 

 

Debrett Lyons, Panelist
Dated: August 16, 2006