DECISION

 

The Prudential Insurance Company of America v. Rich Arzaga Marketing Company

Claim Number: FA0203000106104

 

PARTIES

Complainant is The Prudential Insurance Company of America, Newark, NJ ("Complainant") represented by Sue J. Nam.  Respondent is Rich Arzaga Marketing Company, San Ramon, CA ("Respondent").

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <mypruweb.com>, <mypruweb.net>, and <pruweb.net>, registered with Network Solutions, Inc.

 

PANEL

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

 

Rodney C. Kyle as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on March 25, 2002; the Forum informs the Panel that the Forum received a hard copy of the Complaint on March 25, 2002, but its Forum date stamp is March 26, 2002.

 

On March 28, 2002, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain names <mypruweb.com>, <mypruweb.net>, and <pruweb.net> are registered with Network Solutions, Inc. and that the Respondent is the current registrant of the domain names.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 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 March 28, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 17, 2002 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@mypruweb.com, postmaster@mypruweb.net, and postmaster@pruweb.net by e-mail.

 

A timely Response was received and determined to be complete on April 17, 2002 but did not include exhibits, which were received on April 22, 2002.

 

Additional Submissions were received in accordance with the Forum's Supplemental Rule 7 on April 22, 2002 from the Complainant and on April 26, 2002 from the Respondent.

 

On April 29, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Rodney C. Kyle as Panelist.

 

RELIEF SOUGHT

Complainant requests that the registrations of the domain names at issue be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

The Complainant makes three main contentions in its Complaint. Those contentions are that with respect to each of the domain names at issue

(1) the domain name registered by the Respondent is 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.

 

More particularly, the Complaint includes

(1) as to the first of those three main contentions:

(i)

(a)     having contended in paragraphs 1 and 2 as to using the name and mark "PRUDENTIAL" and to owning trademark registrations "in over 50 countries, including … over 100 U.S. trademark registrations" (Exhibit 1 being contended as listing marks that consist of "PRUDENTIAL" or that comprise "PRUDENTIAL" plus other subject-matter, together with copies of certificates of registration thereof), in paragraph 3 of the Complaint the Complainant contends that "[the Complainant] owns an extensive family of 'Pru' formative marks (hereinafter referred to as 'Pru Marks'), which it has registered or filed for registration with the U.S. Patent and Trademark Office",

(b)    in paragraph 3 of the Complaint, that "the public and the media often refer to Prudential as 'Pru'",

(c)     in paragraph 4 of the Complaint, that "[the Complainant has used the] Pru Marks in numerous domain names throughout the world",

(d)    in paragraph 5 of the Complaint (seemingly in view of the facts alleged in paragraph 3, and perhaps paragraph 4, of the Complaint), that "consumers and the trade have come to associate 'Pru' exclusively with Complainant",

            in paragraph 6 of the Complaint (seemingly in view of the facts alleged in paragraphs 3, 4, and 5 of the Complaint), that the Complainant "has achieved a tremendous amount of goodwill as a result of its long and continuous use of its well-known … Pru Marks, and they are recognized by millions of people around the world as a symbol of financial strength, quality, and trust",

(e)     in paragraph 7 of the Complaint, that the Respondent "is identified in the Whois records as the registrant of the domain names at issue" and

(f)      in paragraph 12 of the Complaint, that the domain names at issue "all incorporate Prudential’s well-known PRU mark in conjunction with the generic terms 'my' and/or 'web.'  As such, they are confusingly similar to Prudential’s famous PRU mark, satisfying the first element of the ICANN test.  Indeed, it has been held that the addition of such generic terms as 'my' has 'the effect of focusing the reader’s attention on the Complainant’s trademark' and therefore results in a likelihood of confusion.  Sony Corporation v. Sin, Eonmok, Case No. D2000-1007 (WIPO Nov. 16, 2000) (finding 'mysony.com' confusingly similar to Sony’s famous mark).  See also, Oracle Corporation v. Internet Nexus Inc., FA 96336 (Nat. Arb. Forum Feb. 5, 2001) ('Given the prevalence of "my[trademark].com" domain names on the Web, the Respondent’s use of the Complainant’s famous mark ORACLE in myoracle.com would strongly indicate a connection with the Complainant')" and

(ii) that each of the following Complaint Annexes contains evidence that is rationally probative of  the proposition stated herewith:

            (a)  Exhibit 2, as to the "Pru" aspects of "(1)(i)(a)" of this list,

            (b)  Exhibit 3, as to "(1)(i)(b)" of this list,

(c)  Exhibit 4, as to "(1)(i)(c)" of this list and

            (d)  Exhibit 5, as to "(1)(i)(e)" of this list;

(2) as to the second of those three main contentions:

(i)          in paragraph 8  of the Complaint, that the "Respondent is not affiliated

with Prudential, and has not been licensed or otherwise authorized to use the 'Pru' name" and

(ii)             in paragraph 13 of the Complaint, that the "Respondent has no rights or legitimate commercial interest in the [domain names at issue] and has no legitimate interest with respect to the Prudential Marks or Pru Marks"; and

(3) as to the third of those three main contentions:

(i)

(a)     in paragraph 9 of the Complaint, that on "March 5, 2002, Prudential’s counsel sent to Respondent a letter objecting to Respondent’s use of [the Complainant's] Pru Mark in [the domain names at issue]",

(b)    in paragraph 10 of the Complaint, that on "March 20, 2002, Prudential’s counsel followed up with a telephone call to Mr. Rich Arzaga.  Mr. Arzaga acknowledged receiving the letter of March 5, and asked what compensation Prudential would offer for the [domain names at issue].  Counsel responded that Prudential would reimburse the cost of registration and transfer, whereupon Mr. Arzaga indicated that that amount was not sufficient and declined to transfer the [domain names at issue].",

(c)     in paragraphs 15 and 16 of the Complaint, that "In view of the

widespread use and advertising by Prudential and its affiliates of the Prudential Marks and the Pru Marks, there can be no doubt that these trademarks are well known to the consuming public and the trade.  See The Prudential Insurance Company of America v. Garzotto, FA 95917 (Nat. Arb. Forum, December 9, 2000) ('Prudential and its subsidiaries are often referred to by the public and the media as "Pru." As a result of the foregoing, and in particular because of Prudential’s ownership of an extensive family of "Pru" formative marks, and the public’s tendency to abbreviate the Prudential name to "Pru", consumers and the trade have come to associate terms having the prefix "Pru" with Complainant Prudential and its related companies.') ¶ As such, even the mere registration by Respondent of a domain name that incorporates the famous PRU mark, without a legitimate interest in the "Prudential" and "Pru" name, is evidence of bad faith.  See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum, April 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration); Dr. Karl Albrecht v. Eric Natale FA 95465 (Nat. Arb. Forum Sept. 16, 2000) (finding registration in bad faith based where there is no reasonable possibility, and no evidence from which to infer that the domain name was selected at random since it entirely incorporated the complainant’s famous mark); Victoria’s Secret et al v. Hardin, FA 96694 (Nat. Arb. Forum May 31, 2001) (in light of the notoriety of the complainants' famous marks, the respondent had actual or constructive knowledge of the BODY BY VICTORIA marks at the time she registered the disputed domain name and such knowledge constitutes bad faith).",

(d)    in paragraph 17 of the Complaint, that "there can be no question that Respondent is knowingly attempting to trade off the fame of Prudential’s famous PRU mark.  Respondent has not only registered three domain names that directly incorporate PRU, but uses at least one of them in connection with a website that displays Prudential’s famous Rock Logo in connection with a real estate sign.  The site states:   

Welcome to the construction page of www.mypruweb.com. This site will become an important source of training, tools, and ideals for real estate professionals.  The estimated launch date is Summer 2001.  If you have ideas or suggestions, please submit them to the email address below.

                                    The only email address provided is 'mypruweb@aol.com.'"

                              (e)  in paragraph 18 of the Complaint, that the "overall effect of this web page

is to give the impression that it is sponsored or affiliated with Prudential.  Given the fame of the Prudential marks, especially in the real estate business that is the subject of Respondent’s website, a reasonable Internet user cannot but be lead to believe that there is a connection between Prudential and Respondent.  See Sony Kabushiki Kaisha v. Inja, Kil, D 2000-1409 (WIPO Dec. 9, 2000) (finding bad faith and use where it is 'inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant'); The Prudential Insurance Company of America v. Prudential Mortgage Loans, FA 103880 (Nat. Arb. Forum March 20, 2002) (based on fame of Prudential’s mark and the overlap in the parties’ services, holding that 'reasonable Internet user cannot help but to be led to believe that there is a connection between Complainant and Respondent' and 'fact that the Internet user ultimately discovers that a site is not that of Complainant, or that Respondent disclaims any association with Complainant, does not cure the fault').  Respondent clearly is attempting to attract, for commercial gain, Internet users to its domain names by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website and services." and

                              (f)  in paragraph 19 of the Complaint, that the "Respondent’s bad faith is

further demonstrated by its seeking compensation in excess of its registration and transfer costs.  See The Prudential Insurance Company of America v. Douglas Irvine, FA 95768 (Nat. Arb. Forum, November 6, 2000); see also World Wrestling Fed. Entertainment, Inc. v. Boxman, D00990001 (WIPO, Jan. 14, 2000) (finding the Respondent used the domain name in bad faith because he sought the sale of the domain name in excess of any out of pocket costs)." and

(ii) that each of the following Complaint Annexes contains evidence that is rationally probative of  the proposition stated herewith:

(a)     Exhibit 6, as to "(3)(i)(a)" of this list and

(b)    Exhibit 7 (contended as being a print out of the web site dated 21 March 2002) and Exhibit 8 (being a copy of the United States trademark registration certificate 1,616,000 of the Complaint's Rock Logo), as to

"(3)(i)(d)" of this list.

 

B. Respondent

The Respondent contends, in its Response, against various aspects of the Complaint's three main contentions.

 

More particularly, the Response includes

(1) as to the first of the Complaint's three main contentions:

(i)

(a)     in paragraphs 1 and 2 of the Response, that the domain names in issue "are in no way similar to the PRUDENTIAL name and mark", and, in paragraph 12 of the Response, that the "Complainant has not shown that the [domain names at issue] are identical to or confusingly similar to any of Complainant's marks" and more particularly that the domain names at issue "are not identical to any mark used or registered by Complainant" in that the "Complainant has provided no evidence that it has used or registered 'mypruweb.com,' 'mypruweb.net,' or 'pruweb.net,' or any words or terms even close to" them,

(b)    in paragraph 3 (and to some extent paragraph 5) of the Response, that the "Respondent is unaware of any federal trademark registration for the mark PRU except by a company that is not Complainant", and, in paragraph 12 of the Response, that "Complainant's alleged mark PRU is not registered and is not famous",  

(c)      in paragraph 3 (and to some extent paragraph 5) of the Response, that "[t]here are numerous other examples of 'Pru' formative marks that are also not owned by Complainant", and, in paragraph 12 of the Response, that "another company has registered the PRU mark and hundreds of other entities are using it.  The [domain names at issue] are no more confusingly similar or identical to Complainant's marks than any of the hundreds of other domain names that are registered with 'pru' in them and that are not owned by Complainant. In addition, it is highly unlikely that anyone wanting to find the Prudential Insurance Company of America or one of its affiliates would enter the domain name mypruweb.com, mypruweb.net or pruweb.net.",

(d)    in paragraph 4 of the Response, that "none of the domain names with websites mentioned by Complainant have the terms 'my' or 'web' in them",

(e)     in paragraph 4 (and to some extent paragraph 5) of the Response, that "In addition to Complainant's use of the letters 'pru,' hundreds of other entities that have registered and are using domain names containing the letters 'pru,'",

(f)      in paragraphs 6 and 8 of the Response, that "Prudential may have achieved a tremendous amount of goodwill as a result of its use of the Prudential Marks" but that the "Respondent is not using the 'pru' mark by itself" and that the domain names at issue "are significantly different" and "intended to indicate that [they do] not belong to Complainant",

(g)     in paragraph 9 of the Response, seemingly that the Respondent received the letter referred to in "(3)(i)(a)" of the above list, but that the use by the Respondent is merely "the legitimate use of the letters 'pru'" and

(h)    in paragraph 10 of the Response, seemingly that the Respondent had the conversation referred to in "(3)(i)(b)" of the above list, but that "because Respondent was still working on the design for his web site and it was not up and running yet, Respondent offered to transfer [the domain names at issue]to Complainant for their fair market value" and that, in that conversation, the Respondent referred to the domain names at issue as being his "legitimate" domain names and

(ii) that each of the following exhibits submitted by the Respondent contains evidence that is rationally probative of  the proposition stated herewith:           

(a)     exhibit A, as to "(1)(i)(b)" of this list,

(b)    exhibit B, as to "(1)(i)(c)" of this list and

(c)     exhibits C and D, as to "(1)(i)(e)" of this list;

(2)    as to the second of the Complaint's three main contentions: in paragraph 13 of the Response, that "Respondent obtained his real estate agent's license several years ago.  Last year, the license was upgraded to a broker's license.  In the Spring of 2001, Respondent decided to expand his real estate business into several areas.  One of the areas into which Respondent intended to expand was providing training for real estate agents.  After researching various real estate companies, Respondent determined that agents who worked for Prudential franchisees across the country could benefit from his services.  Thus, Respondent decided to target independent sales agents who were associated with independent franchisees of Complainant or one of its affiliates.  There are many thousands of such independent real estate agents who use the Prudential name themselves, although they are not employees, or even independent contractors, of Complainant or its affiliates, and who Respondent believes may be interested in Respondent's services.   Thus, Respondent has a legitimate interest in the [domain names at issue]."; and

(3)    as to the third of the Complaint's three main contentions: in paragraphs 14 - 16, 17 - 18, and 19 of the Response, that "Respondent did not register the [domain names at issue] in bad faith.  While Respondent believed that the [domain names at issue] were not confusingly similar to Complainant's marks, Respondent thought real estate agents who use the Prudential name and were looking for training may be attracted to the mypruweb domain name or pruweb domain name.  This was done in a good faith intent to develop business that would benefit these independent sales agents.  Although in this case any alleged use of Complainant's mark is extremely limited (three letters in domain names of 8 or 6 letters), in other cases where the marks are much more obvious, such use was found to be acceptable, e.g., mercedesshop.com (WIPO Case No. D2001-0160); draw-tite.com (WIPO Case No. D2000-0017); samfrancis.com (WIPO Case No. D2000-0673); cromalin.com (WIPO Case No. D2000-0130); ICQPlus.com (WIPO Case No. D2001-0003) and catparts.com (NAF Case No. FA-95497). ¶ Respondent was not aware that it may not be proper to use the Rock of Gibraltar picture on Respondent's web site.  Respondent will remove the picture from the web site.  In addition, Respondent will post a notice on the web site associated with the [domain names at issue] stating that the web site is not sponsored by or affiliated with Complainant or any of its subsidiary companies. ¶ It is not bad faith to offer, upon being contacted by a third party, to transfer a domain name for more than the registration and transfer costs, as discussed in ['(1)(i)(h)' of this list]."

 

C. Additional Submissions

Complainant's

The Complainant's Additional Submissions are three-fold.

 

First, in response to the Response's contentions of the domain names at issue not being confusingly similar to PRU and of PRU not being famous (seemingly as made in "(1)(i)(a)", "(1)(i)(b)", "(1)(i)(c)", and "(3)" of the above-listed items from the Response), the Complainant contends that "This argument flies in the face of Respondent's concession that the PRU incorporated into the [domain names at issue] is specifically a reference to Prudential.   Clearly, Respondent was aware of the strong association between PRU and Prudential before he registered that name and was attempting to capitalize on that very association."  (The concession appears to be made in "(2)" and "(3)" of the above-listed items from the Response.) The Complainant then proceeds to basically repeat the second half of "(1)(i)(g)" of the above-listed items from the Complaint.

 

Second, in response to the Response's contentions of intent to place a notice of disclaimer on the web sites associated with the domain names at issue (seemingly as made in "(3)" of the above-listed items from the Response), the Complainant contends that "Even the addition of a conspicuous disclaimer of affiliation is not sufficient to dispel confusion.  See Madonna Ciccone p/k/a Madonna v. Dan Parisi and 'Madonna.com,' D2000-0847 (WIPO Oct. 12, 2000) ('Respondent's use of a disclaimer on its web site is insufficient to avoid a finding of bad faith.  First, the disclaimer may be ignored or misunderstood by Internet Users.  Second, a disclaimer does nothing to dispel initial interest confusion that is inevitable from Respondent's actions.  Such confusion is a basis for finding a violation of Complainant's rights.'); The Prudential Insurance Company of America v. Prudential Mortgage Loans, FA 103880 (Nat. Arb. Forum March 20, 2002) ('fact that the Internet user ultimately discovers that a site is not that of Complainant, or that Respondent disclaims any association with Complainant, does not cure the fault'); see also Estee Lauder, Inc. v. estelauder.com, estelauder.net and Jeff Hanna, D2000-0869 (WIPO Sept. 25, 2000) (awarding domain name to the complainant despite disclaimers).  Upon seeing the [domain names at issue], Internet users will believe, at a minimum in the first instance, that Respondent's services are sponsored, affiliated or approved by Prudential, when they are not."

 

Third, in response to the Response's contentions regarding Policy paragraphs 4(a)(ii) and 4(a)(iii) (seemingly made in "(2)" and "(3)"of the above-listed items from the Response), the Complainant contends that "With respect to the second and third ICANN factor, Respondent's submission bolsters the finding that Respondent has no legitimate interests in the [domain names at issue] and that Respondent registered and is using the [domain names at issue] in bad faith.  Respondent does not and cannot claim that he is affiliated with Prudential or that he or his business is legitimately known as 'Pru.' Nor can Respondent claim that the [domain names at issue] are descriptive of his business.   Unlike the registrants of the domain names 'mercedesshop.com,' 'drawtite.com,' 'sanfrancis.com,' 'cromalin.com,' 'ICQPlus.com' and 'catparts.com,' Respondent is not offering Prudential-branded goods and does not have a legitimate, nominative need to refer to Prudential. Instead, Respondent intends to provide training for real estate agents and chose the [domain names at issue] because he 'thought real estate agents who use the Prudential name and were looking for training may be attracted to the mypruweb domain name or pruweb domain name.'  Respondent thus readily admits that his use of Prudential's PRU mark is for the purposes of attracting Internet users who are familiar with Prudential's famous mark. Respondent's efforts to trade off of Prudential's fame as a means of creating traffic to his website is precisely the type of bad faith conduct that the ICANN proceeding was designed to address.   See Madonna Ciccone p/k/a Madonna v. Dan Parisi and 'Madonna.com,' D2000-0847 (WIPO Oct. 12, 2000) (domain name awarded to Complainant, finding intent to trade off name and reputation of the Complainant in operating a domain name that incorporated the Complainant's name).   In short, Respondent should not be permitted to use Prudential's fame and goodwill as a means to an instant customer base."

           

Respondent's

The Respondent's Additional Submissions are three-fold. Generally, they are basically as to the "hundreds" of other instances referred to in "(1)(i)(c)" and "(1)(i)(e)" of the above-listed items from the Response. The Respondent basically repeats that aspect of those items, adds (along the lines of "(2)" and "(3)" of the above-listed items from the Response) that the "hundreds of domain names" include "domain names referring to real estate and used by [thousands of] independent sales agents who do not work for Complainant", and adds three sets of statements that relate to either or both of those contended "hundreds" of realty domain names and those contended "thousands" of realty sales agents.

 

First, seemingly contending against confusing similarity (as contended in the "First" branch of the Complainant's three-fold Additional Submissions), the Respondent contends that "Respondent's domain names are no more confusingly similar than these other domain names.  The SONY and ORACLE cases are easily distinguished as the Panel relied on the very unique, strong marks in those cases, the use of the same mark by the company, and the fact that the domain name only added the 'my.'"

Second, seemingly contending against confusing similarity and its relationship to a disclaimer on a web site (as contended in the "Second" branch of the Complainant's three-fold Additional Submissions), the Respondent contends that:

Furthermore, the tens of thousands of independent real estate sales agents that are associated with franchisees of Complainant, or Complainant's affiliated companies, will not be confused by Respondent's use of the domain names.  Given the hundreds of domain names with "PRU" in them, any association with Complainant will not be assumed and certainly would be made clear with a disclaimer.  There was no bad faith in registering or using the domain names.

Third, seemingly contending against applicability of Policy paragraphs 4(a)(ii) and 4(a)(iii) (as contended in the "Third" branch of the Complainant's three-fold Additional Submissions), the Respondent contends that:

Complainant's new allegations regarding the second and third ICANN factors are untenable.  Complainant argues that it is legitimate to market to Mercedes owners, or Caterpillar owners, BUT it is not acceptable to market to the tens of thousands of independent real estate sales agents who are associated with Prudential franchisees.  This is a vast market (perhaps larger than the market of individuals needing "cat [caterpillar] parts"), and a legitimate market for Respondent to attempt to reach with his services.         

 

FINDINGS

1. The Panel finds the exhibits submitted by the Respondent are to not be part of the Panel's substantive basis for deciding the complaint.

 

2. The Panel finds each party's Additional Submissions are to be part of the Panel's substantive basis for deciding the Complaint but that the exhibits submitted by the Respondent are to not thereby become part of the Panel's substantive basis for deciding the Complaint.

 

3. The Panel finds that, with respect to each of the domain names at issue, it has been proven in this proceeding that within Policy paragraph 4(a)

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

(ii) the Respondent has no rights or legitimate interests in respect of the domain

                              name; and

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

 

DISCUSSION

GENERAL

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."

 

There are both procedural and substantive aspects to this case.

 

PROCEDURAL ASPECTS

The two main procedural aspects of this case are as to the above-mentioned (i) exhibits submitted by the Respondent; and (ii) Additional Submissions.

 

Exhibits Submitted by the Respondent

Rule 5 includes the following:

(a) Within twenty (20) days of the date of commencement of the administrative proceeding the Respondent shall submit a response to the Provider.

(b) The response shall …

(ix) Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents.

Rules 5(a) and 5(b)(ix) apply to this case. The Respondent complied with Rule 5(a) only to the extent of pleadings and arguments, and not as to Rule 5(b)(ix) "documentary or other evidence upon which the Respondent relies". 

 

In view of the immediately preceding paragraph hereof, Rule 14 applies to that aspect of this case. Rule 14 is as follows:

(a)     In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.

(b)    If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.

As a result, and in view of Rule 15(a), the Panel did not consider substantive aspects of the above-mentioned exhibits submitted by the Respondent. (The Panel's decision to not consider substantive aspects of those exhibits is additionally supported by the discussion in the sentence that begins with "Third" in the last paragraph of the discussion below under the heading of "Additional Submissions".)

 

Additional Submissions

Paragraph 1 of the Policy is that

Proceedings under Paragraph 4 of this Policy will be conducted according to the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules of Procedure"), which are available at www.icann.org/udrp/udrp-rules-24oct99.htm, and the selected administrative-dispute-resolution service provider's supplemental rules.

and Rule 8 includes that

All communications between a Party and the Panel or the Provider shall be made to a case administrator appointed by the Provider in the manner prescribed in the Provider's Supplemental Rules.

 

Supplemental Rule 8 is such a supplemental rule and is as follows: "The Complaint, Response, and additional written statements and documents provided in Paragraph 12 of the Rules and Paragraph 7 of these Supplemental Rules constitute the complete record to be considered by the Panel." Supplemental Rule 8 applies to this case. (Rule 12 is as follows: "In addition to the complaint and the response, the Panel may request, in its sole discretion, further statements or documents from either of the Parties." Rule 12 does not apply to this case.)

 

As a result of Supplemental Rule 8 applying to this case, the Panel has considered Supplemental Rule 7 which is as follows:

a. A party may submit additional written statements and documents to the Forum and the opposing party(s) within five (5) calendar days after the date the Response was submitted or the last date the Response was due to be submitted to the Forum, whichever occurs first.

b. Each submission must:

i. be timely received by the Forum;

ii. be accompanied by an additional submission fee of $250;

iii. include proof of service of these submissions upon the opposing party(s);

iv. be submitted in either hard copy or electronic form.

c. The opposing party may respond, in hard copy or electronic form, to an additional submission filed in accordance with Supplemental Rule 7(a); such response must be submitted to the Forum and the opposing party(s) within five (5) calendar days after the date the additional submission was submitted.

d. Additional submissions and responses to additional submissions may not amend the original Complaint or Response.

Supplemental Rule 7 applies to this case and appears to have been complied with by each party's Additional Submissions, so each party's Additional Submissions are to be part of the Panel's substantive basis for deciding the complaint. There are three aspects to that finding, the third of which is a caveat as to the Respondent's Additional Submissions. First, both the Complainant's and the Respondent's Additional Submissions appear to comply with Supplemental Rules 7(a), 7(b), and 7(c). Second, the Complainant's Additional Submissions repeat some of what is in the original Complaint (which repetition appears to be permissible), and by responding to the Response rather than attempting to amend the original Complaint they also comply with Supplemental Rule 7(d). Third, the Respondent's Additional Submissions repeat some of what is in the original Response (which repetition appears to be permissible), but they also implicitly refer to the exhibits submitted by the Respondent (which exhibits were not received until April 22, 2002 which was the deadline for, and was the date of, the Complainant's Additional Submissions); if the Panel were to consider those exhibits as thereby becoming part of the Panel's substantive basis for deciding the complaint then that would amount to allowing the Respondent to use the Respondent's Additional Submissions to amend the original Response so as to include those exhibits (and, even worse, would amount to allowing the Respondent to do so without, it seems, the Complainant having had the opportunity to address those exhibits in the Complainant's Additional Submissions), so the Respondent's Additional Submissions would not comply with Supplemental Rule 7(d). As a result of those three aspects, and in view of Rule 15(a), the Panel therefore found (i) the Complainant's Additional Submissions to be part of the substantive basis for deciding the complaint; and (ii) the Respondent's Additional Submissions to be part of the substantive basis for deciding the complaint but only as pleadings (and arguments) unsupported by the exhibits submitted by the Respondent.

 

SUBSTANTIVE ASPECTS

IN GENERAL

Paragraph 4(a) of the Policy requires that each of the following three elements must be proven for an order to issue that a domain name 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.

 

In view especially of Rule 15(a) and the above discussion under the heading of "Procedural Aspects", the Panel notes three rules and principles of law that it deems applicable to ascertaining whether each of those three elements have been proven. First, that

Both [dispositive] and evidential facts must, under the law, be ascertained in some one or more of four possible modes: 1. By judicial admission (what is not disputed); 2. By judicial notice, or knowledge (what is known or easily knowable); 3. By judicial perception (what is ascertained directly through the senses; cf. "real evidence"); 4. By judicial inference (what is ascertained by reasoning from facts already ascertained by one or more of the four methods here outlined).[1]

Second, especially as to mode "3", that Rule 10(d) provides that "The Panel shall determine the admissibility, relevance, materiality and weight of the evidence." Third, as to construing and applying Rule 10(d), especially as to whether mode "1" rather than mode "3" applies: a complainant’s pleading of fact that is not disputed (or, phrased differently, not "put in issue") by a respondent against whom it is contended, is an admission by that respondent, so evidence tendered as being rationally probative of (i.e. as being "relevant to") establishing that fact becomes immaterial, and hence inadmissible, as to establishing that fact.[2]

 

            Identical or Confusingly Similar

In view of each party's contentions, and the above-noted three rules and principles of law, the Panel makes two findings as to each of the domain names at issue.

 

First, for the purposes of this proceeding (i) the Respondent does not dispute, and therefore admits, that the domain name at issue is "[the Respondent's] domain name" within the meaning of the Policy section 4(a)(i) expression "[the Respondent’s] domain name is identical or confusingly similar to a trademark or service mark in which the [C]omplainant has rights"; and (ii) in relation to establishing the fact that the domain name at issue is the Respondent's domain name, the evidence contained in Complaint Exhibit 5 is immaterial and hence inadmissible.

 

Second, as for whether the domain name at issue is or is not within the meaning of the Policy section 4(a)(i) expression "identical or confusingly similar to a trademark or service mark in which the [C]omplainant has rights", the issue between the Complainant and the Respondent is whether, and to what extent, through use (such as to the point of being famous) or registration of  "PRU" as a trademark or service mark (or as a formative[3] part of one or more trademarks or service marks), such "rights"[4] exist and are owned by the Complainant, and, if they do exist and are owned by the Complainant, then whether the domain name is identical or confusingly similar thereto.

 

In relation to establishing those facts in issue, evidence contained in each of Complaint Exhibits 2, 3, and 4 is therefore material.

 

Complaint Exhibits 2, 3, and 4 indicate three things.

 

First, Exhibit 2 indicates, (i) by what appears to be a list by the Complainant, that the Complainant has registrations for the mark consisting of "PRU" in Korea (58806), Japan (2000-83487), Mexico (649080), and Tunisia (EE990399); (ii) by a copy of what appears to be an e-mailed official filing receipt, that on 2 January 2001 the Complainant filed on-line an application (78/041,385) in the United States Trademark Office under section 1(a) of the applicable Act for registration of "PRU" based on use since 1 January 2000 in association with "Insurance and financial services, namely, insurance underwriting, administration and agency services in the fields of casualty, disability …; real estate brokerage, leasing and management services; and real estate investment services."; (iii) by a copy of a covering letter and of an affidavit (each dated "July 31, 2001" and made on behalf of the Complainant, and which seem to have been intended to be faxed to the United Stares Trademark Office on 31 July 2001 in support of application 78/041,385), that as stated in the affidavit expressly made as a declaration under 37 C.F.R. §2.20 and 37 C.F.R. §2.71(d) and expressly providing that "these statements are made with the knowledge that willful false statements and the like are punishable by fine or imprisonment, or both, under Section 1001 of the United States Code, and that such willful false statements may jeopardize the validity of the application and any resulting registration" the date of first use claimed in the application as originally filed should be amended from 1 January 2000 because instead "the mark [PRU] sought to be registered [by the Complainant] was first used [by the Complainant] at least as early as January 1968, and was first used [by the Complainant]in interstate commerce at least as early as January 1968"; and (iv) by part of the above-mentioned list by the Complainant, that the Complainant owns various registrations (and applications for registrations) of trademarks that include "PRU" along with other letters, including United States registrations 1343273 for PRUNET, 1298024 for PRUFLEX, 1310397 for PRU-MED, 1481897 for PRU-MATIC, 1559250 for PRU-REVIEW, and 1916259 for PRU MONEYMINDER.

 

Second, Exhibit 3 indicates, by copies of thirteen on-line articles from 2002 (dated 4 and 5 March; and 1, 14, and 27 February) and 2001 (dated 1 and 22 October; 29 September; and 13 and 27 August) that third parties (such as the New York Stock Exchange, as the ticker for denoting the Complainant; a named securities analyst, quoted by the author of an on-line article; and at least six named authors of on-line articles for six different investment or business magazines) have referred to the Complainant or its affiliates as "PRU" (by the New York Stock Exchange) or "Pru" (by the analyst and authors). 

 

Third, Exhibit 4 indicates, by copies of printouts from web sites, that web sites expressly authorized by or through the Complainant incorporate the "PRU" mark in their respective domain names, the printouts being (dated 5 November 2001) from <prubank.com>, <prufn.com>, <pru.com.tw>, <pru.co.jp>, and <prufa.com> and (dated 21 March 2002) from <prumerica.com>.

 

The above-mentioned, and other, aspects of Exhibit 2 warrant three sets of comments.

 

The first set of comments as to Exhibit 2 is mainly as to registrations of trademarks or service marks of solely "PRU". The Exhibit 2 list is a contention which is certified by the Complainant (in view of the second paragraph of section 11 that spans from page 3 to page 4 of the introductory part of the Complaint), but it is not made under oath or as a solemn or statutory declaration, and, more particularly, Exhibit 2 does not contain any copies of certificates of registration (or of register extracts) of any of the above-mentioned four contended registrations consisting of "PRU". Moreover, to the extent that judicial notice can be and has been applied by the Panel to those four contended registrations consisting of "PRU", the Panel does not find that said registrations exist. That is not to say, however, that those registrations do not exist, but rather that in this proceeding it has not been ascertained that they exist.

 

The second set of comments as to Exhibit 2 is mainly as to applications for registrations of trademarks or service marks consisting of "PRU". The Panel finds the Exhibit 2 copy of the filing receipt of the 78/041,385 application proves that said application was filed in the United States Trademark Office for registration solely of "PRU" in association with the services quoted above from the filing receipt of that application. The Panel takes judicial notice, through the Panel's knowledge in this field generally and through the United States Trademark Office on-line form for filing an application for trademark registration, that in filing that application the individual acting on behalf of the Complainant made the following declaration as part of that application:

The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. §1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. §1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.

(Emphasis added.) (However, there is no indication, either in Exhibit 2 or to the extent that judicial notice can be and has been applied by the Panel through the United States Trademark Office on-line database, that either of the 31 July 2001 letter or affidavit were ever actually sent to, let alone received by, the United States Trademark Office or, if received by the United States Trademark Office, that the claimed date of first use was ever amended.) In view especially of the 18 U.S.C. §1001 declaration quoted above in this paragraph, the Panel finds that the filing receipt of the 78/041,385 application is rationally probative of, admissible regarding, and to be accorded substantial weight concerning, the Complainant's having Policy paragraph 4(a)(i) "rights" in the trademark or service mark "PRU" for, and based on, use in association with "Insurance and financial services, namely, insurance underwriting, administration and agency services in the fields of casualty, disability …; real estate brokerage, leasing and management services; and real estate investment services."

 

The third set of comments as to Exhibit 2 is mainly as to registrations of trademarks or service marks for "PRU" plus other letters. There is no indication in Exhibit 2 or, by judicial notice to the extent that judicial notice can be and has been applied by the Panel such as through the United States Trademark Office on-line database, that there has been a disclaimer of other than "PRU" in any of the trademark registrations therein listed as including "PRU" plus other letters; though the Panel recognizes that the absence of such a disclaimer is not definitive of the matter, such a disclaimer might have tended towards indicating that "PRU" was distinctive to the Complainant but that what had been disclaimed was not. (For example, the PRUDENTIAL INVESTMENTS certificate in Exhibit 1 contains a disclaimer of "INVESTMENTS" whereas the PRU MONEYMINDER certificate in Exhibit 2 does not contain a disclaimer of "MONEYMINDER", although, having said that, the expression "MONEYMINDER" does seem to have some distinctiveness through apparently being a coined word.) On the other hand, two further points should be, and have been, considered by the Panel. One point is that there is the Complainant's above-mentioned contention of United States registration 1343273 for "PRUNET"; by judicial notice, to the extent that judicial notice can be and has been applied by the Panel through the United States Trademark Office on-line database, the Panel finds that the registration is for the services of "providing and administering prepaid health insurance services", which appears to overlap with the services listed in the Complainant's application 78/041,385. The other point is (i) that Trademark Rule 2.36, 37 C.F.R. §2.36, provides that "Prior registrations of the same or similar marks owned by the applicant should be identified in the application.";[5] and (ii) that the United States Trademark Office on-line database file for the Complainant's United States Trademark Office application 78/041,385, of which on-line file the Panel takes judicial notice, includes under the heading of "Prior Registrations" some registrations listed in Exhibit 2: 1343273 (for PRUNET), 1298024 (for PRUFLEX which is listed in that database as being for "Underwriting Annuity Plans to Fund Individual Retirement Annuities and Other Qualified Programs"), 1310397 (for PRU-MED which is listed in that database as being for "Health Care Insurance Underwriting Services"), 1481897 (for PRU-MATIC which is listed in that database as being for "life and health insurance payment administration services"), 1559250 (for PRU-REVIEW which is listed in that database as being for "insurance underwriting services for all lines of commercial and personal property and casualty insurance, namely, motor vehicle insurance, homeowner's insurance, renter's insurance, watercraft insurance, personal catastrophe liability insurance, accident, sickness, health and disability insurance, all lines of property and casualty reinsurance"), and 1916259 (for PRU MONEYMINDER which is listed in that database as being for "electronic funds transfer, namely automatically deducting funds from, and crediting funds to the bank accounts of users of the service"). In view especially of the two immediately preceding sentences of this paragraph, the Panel finds that the Complainant owns the registrations of formative "PRU" trademarks or service marks (for "PRU" plus other letters) mentioned therein and that said registrations are to be accorded substantial weight concerning the Complainant's having Policy paragraph 4(a)(i) "rights" in the trademark or service mark "PRU" for, and based on, use in association with "Insurance and financial services, namely, insurance underwriting, administration and agency services in the fields of casualty, disability …; real estate brokerage, leasing and management services; and real estate investment services."

 

As for Exhibit 3, the copies of the on-line articles therein do not appear to be evidence of registration or use of  "PRU" as a trademark or service mark, per se, but, as to the sub-issue of fame, some aspects of them are admissible and of some weight. On the one hand, in some of the articles the article authors relate that the New York Stock Exchange uses "PRU" as the ticker for denoting the Complainant, but that does not appear (in this proceeding at least) to either be evidence of use of "PRU" as a trademark or service mark or to be evidence of use that is by or on behalf of the Complainant and which would enure to the benefit of the Complainant as trademark or service mark use; the references do not seem to be relevant and therefore are inadmissible. On the other hand, assuming said trademark or service mark exists (and the two immediately preceding paragraphs of these reasons for decision favor that assumption), then two points follow. First, that the named securities analyst is quoted by an article author as referring to the Complainant or its affiliates as "Pru" is rationally probative of, admissible regarding, and to be accorded at least some weight concerning, whether that trademark or service mark is famous; although hearsay in that it is evidence, by an intermediary (i.e. the article author), of an extrajudicial testimonial assertion (by the securities analyst), where the assertor (i.e. the securities analyst) does not give evidence in this proceeding, the exception for business records appears to be applicable to it.[6] Second, that at least six authors of articles for six different investment or business magazines have themselves referred to the Complainant or its affiliates as "Pru" is rationally probative of, admissible regarding, and to be accorded at least some weight concerning, whether that trademark or service mark is famous. In view of the foregoing paragraph, the Panel finds the "PRU" trademark or service mark is famous.

 

As for Exhibit 4, it is unclear to the Panel whether the copies of the website printouts therein are evidence of use of  "PRU" as a trademark or service mark, per se, or of fame of said mark. In any event, in view of the last sentence of each of the immediately preceding three paragraphs hereof, those aspects of Complaint have been proven without Exhibit 4.

 

As for whether any or all of the domain names at issue are identical or confusingly similar to said mark, they all incorporate said mark in conjunction with either or both of the generic terms "my" or "web" and it has been held that the addition of such generic terms as "my" has "the effect of focusing the reader’s attention on the Complainant’s trademark" and therefore results in a likelihood of confusion. (See for example Infospace.com, Inc. v. Delighters, Inc., D2000-0068 (WIPO May 1, 2000) finding that the domain name <myinfospace.com> was confusingly similar to that complainant’s INFOSPACE mark; and NIIT Ltd. v. Parthasarathy Venkatram, D2000-0497 (WIPO Aug. 4, 2000) finding that the "domain name 'myniit.com,' which incorporates the word NIIT as a prominent part thereof, is confusingly similar to the Complainant’s trade name and trademark NIIT".) Likewise the addition of the generic term "web", which like "net" is a generic on-line word, does not detract from the confusing similarity with the Complainant’s PRU mark. (See for example Am. Online Inc. v. Neticq.com Ltd., D2000-1606 (WIPO Feb. 12, 2001) finding that the addition of the generic word "Net" to Complainant’s ICQ mark, made the <neticq.com> domain name confusingly similar to that complainant’s mark.)

 

In view of all of the above, as to each of the domain names at issue the Complainant's contentions are entirely persuasive over the Respondent's on this point and the Panel finds the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Panel therefore finds Policy paragraph 4(a)(i) is proven.

 

Rights or Legitimate Interests

By Policy paragraph 4(c), in respect of each of the domain names at issue:

Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the Respondent's] rights or legitimate interests to the domain name for purposes of [Policy paragraph] 4(a)(ii): 

(i)         before any notice to [the Respondent] of the dispute, [the Respondent's] use

            of, or 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 Respondent] (as an individual, business, or other organization) 

                  [has] been commonly known by the domain name, even if [the Respondent]

                  has acquired no trademark or service mark rights; or

      (iii)       [the Respondent is] making a legitimate noncommercial 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.

 

The Complainant's contentions are entirely persuasive over the Respondent's on this point. The Respondent’s use of the domain names at issue to direct Internet users to a web site that competes with the Complainant cannot be deemed a bona fide offering of goods or services pursuant to Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy paragraph 4(c)(iii). (See for example Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) finding no rights or legitimate interests where the respondent generated commercial gain by intentionally and misleadingly diverting users away from that complainant's site to a competing web site; and Chanel, Inc. v. Cologne Zone, D2000-1809 (WIPO Feb. 22, 2001) finding that use of a mark to sell complainant’s perfume, as well as other brands of perfume, was not a bona fide use.) Further, the Complainant contends that Respondent is not affiliated with Prudential, and has not been licensed or otherwise authorized to use the “Pru” mark; and there is not even a contention in this case that Respondent is commonly known by any of the domain names pursuant to Policy paragraph  4(c)(ii). (See for example Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) finding that a respondent did not have rights or legitimate interests in a domain name when Respondent is not known by the mark; and Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademark.) No aspect of Policy paragraph  4(c), whether enumerated in the main body of Policy paragraph 4(c) or implied by the preamble of Policy paragraph 4(c), avails the Respondent in this case.

 

In view of all of the above, as to each of the domain names at issue the Panel finds the Respondent has no rights or legitimate interests in respect of the domain name. The Panel therefore finds Policy paragraph 4(a)(ii) is proven.

 

Registration and Use in Bad Faith

By Policy paragraph 4(b), in respect of each domain name at issue,

For the purposes of [Policy paragraph] 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: 

                  (i)         circumstances indicating that [the Respondent has] registered or [the Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the [C]omplainant who is the owner of the trademark or service mark or to a competitor of [the Complainant], for valuable consideration in excess of [the Respondent's] documented out-of-pocket costs directly related to the domain name; or

(ii)    [the Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent has] engaged in a pattern of such conduct; or

(iii)  [the Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv)  by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] web site or other on-line location, by creating a likelihood of confusion with the [C]omplainant's mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent's] web site or location or of a product or service on [the Respondent's] web site or location.

 

The Complainant's contentions are entirely persuasive over the Respondent's on this point. The Policy paragraph 4(b) preamble, and Policy paragraphs 4(b)(i), 4(b)(ii), 4(b)(iii), and 4(b)(iv), avail the Complainant in this case.

 

As to the Policy paragraph 4(b) preamble, the mere registration by the Respondent of domain names that incorporate the famous PRU mark, without a legitimate interest in "Prudential" or "Pru", is evidence of bad faith.  (See for example Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) finding that "[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse".)

 

As to Policy paragraph 4(b)(i), the occurrence and significance of the Exhibit 6 letter and of the subsequent telephone communications are exactly as contended by the Complainant, such that Policy paragraph 4(b)(i) avails the Complainant in this case.

 

As to Policy paragraphs 4(b)(ii) and (iii), the Respondent’s registration and use of the three domain names demonstrates a pattern of behavior calculated to disrupt the Complainant’s business and prevent it from registering domain names that reflect its marks. (See for example YAHOO! Inc. v. Syrynx, Inc. & Hamilton, D2000-1675 (WIPO Jan. 30, 2001) finding a bad faith pattern pursuant to Policy paragraph 4(b)(ii) in that respondent's registration of two domain names incorporating that complainant's YAHOO! mark.)

 

As to Policy paragraph 4(b)(iv), the occurrence and significance of the Exhibit 7 web site and the Exhibit 8 trademark registration certificate are exactly as contended by the Complainant. The Respondent has registered and used the domain names at issue for commercial gain by taking advantage of the fame and notoriety of Complainant’s marks. In so doing, the Respondent has created likelihood of Internet user confusion as to the affiliation or sponsorship of its web sites. Such behavior demonstrates bad faith registration and use pursuant to Policy paragraph 4(b)(iv). (See for example State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) finding bad faith where Respondent registered the domain name <bigtex.net> to infringe on that complainant’s goodwill and attract internet users to that respondent’s web site.)

 

In view of all of the above, as to each of the domain names at issue the Panel finds the domain name has been registered and is being used in bad faith. The Panel therefore finds Policy paragraph 4(a)(iii) is proven.

 

DECISION

The registration of each of the domain names at issue is to be transferred to Complainant.

 

Rodney C. Kyle, Panelist
Dated: May 13, 2002

 

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