Barnesandnoble.com LLC v.
John Frank Frank Rosenblum
Claim Number: FA0710001089020
PARTIES
Complainant is Barnesandnoble.com LLC (“Complainant”), represented by Kevin
R. Haley, of Brann & Isaacson,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <noble.com>, registered with Network
Solutions, Inc.
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.
The Honourable Neil Anthony Brown QC as
Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on October 4, 2007; the
National Arbitration Forum received a hard copy of the Complaint on October 4, 2007.
On October 4, 2007, Network Solutions, Inc. confirmed by e-mail to
the National Arbitration Forum that the <noble.com> domain name is registered
with Network Solutions, Inc. and that the
Respondent is the current registrant of the name. 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 October 11, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of October 31, 2007 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@noble.com by e-mail.
A timely Response was received and determined to be complete on October 23, 2007.
An Additional Submission was received from Complainant on October 25,
2007. The Additional Submission was received in time, in accordance with Rule 7
of the National Arbitration Forum’s Supplemental Rules, but was not accompanied
by the additional submission fee as required by that Rule. However, the fee was
received on the following day and the Panel in the exercise of its discretion
has decided to accept the submission and consider it.
An Additional Submission was received from the Respondent and
determined to be complete on October 30, 2007.
On November 1, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed The Honourable Neil Anthony Brown QC as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends that the disputed domain name should be transferred to it because it can make out each of the three criteria prescribed under paragraphs 4(a)(i)-(iii) of the Policy. Complainant maintains, first, that the domain name <noble.com> is confusingly similar to Complainant’s trademarks, BARNESANDNOBLE.COM (and design), BARNES AND NOBLE.COM, BARNES & NOBLE.COM (and design) and BARNES & NOBLE .COM and others registered with the United States Patent and Trademark Office (“USPTO”). Complainant contends that this is so because the domain name incorporates a substantial portion of Complainant’s marks.
Complainant then argues that Respondent has no rights or legitimate interests in the disputed domain name because the domain name has no relationship to Respondent or its services, Respondent has no federal trademark in the name NOBLE and does not do business under those names. Moreover, the Respondent has procured the domain name to siphon off traffic destined for the Complainant and divert it to <amazon.com> to earn click-through fees by means of a “click fraud.”
Thirdly, Complainant contends that the disputed
domain name was registered and is being used in bad faith, which has been
proven because the Complainant’s trademarks are famous and because the process
has been engaged in to garner an economic benefit by means of typosquatting and
“click fraud.”
B. Respondent
Respondent denies each and every allegation of Complainant’s. He says,
first, that the domain name is self evidently not confusingly similar to any of
the trademarks. He contends, secondly, that he has a right or legitimate interest
in the domain name because “noble” is a generic word and because, in any event,
he has been using the domain name in a legitimate business for over thirteen
years. Thirdly, he maintains that the domain name was neither registered nor
used in bad faith; that is so because of his legitimate use of the domain name
for business purposes and because he could not have registered it to siphon
business away from the Complainant’s website as that website did not exist at
the time he registered the domain name.
The Respondent also contends that under all the circumstances the Panel
should make a finding against the Complainant of Reverse Domain Name Hijacking.
C. Additional Submissions
In its Additional Submission, Complainant contends that Respondent is not
a legitimate businessman, that the Response did not
deny using the domain name to siphon business off to <amazon.com> and it
reiterates its submission that Respondent has engaged in a “click-fraud
scheme.” Complainant then contends that the Panel should not make a finding of
Reverse Domain Name Hijacking.
In his Additional Submission, Respondent denies that the domain name
resolves to any website other than itself, reiterates that it never had any
intention to steal business traffic from Complainant and maintains that there
is no evidence to support any of the elements required to be proved by
Complainant under paragraph 4(a) of the Policy. Respondent then contends that
his case for a finding of Reverse Domain Name Hijacking has been strengthened
by Complainant’s persistent misrepresentation of the facts of the case. Respondent also “respectfully requests that his full and correct
name appear on all finalized documents.” The reason for that request is
that Respondent is described in the documents as “John Frank Frank Rosenblum”
whereas his real name is “John Frank Rosenblum.”
FINDINGS
Complainant is a well-known retailer of
books, magazines, software and related merchandise which it sells through its
bookstores and online.
Respondent is the owner of JFR Enterprises
Ltd., which creates programs that are distributed on the Internet, television,
film and other means of dissemination.
Complainant has trademark rights in the following trademarks:
(a)
Trademark
number 2,463,172 registered with the United States Patent and Trademark Office
(“USPTO”) on June 26, 2001 for BARNESANDNOBLE.COM (and design);
(b) Trademark number 2,290,269 registered with the USPTO on November 2,
1999 for BARNESANDNOBLE.COM;
(c) Trademark number 2,519,777, registered with the USPTO on December
18, 2001 for BARNES&NOBLE.COM (and design);
(d) Trademark number 2,512,356, registered with the USPTO on November
27, 2001, for BARNES&NOBLE.COM;
and several other trademarks (all of which trademarks are hereinafter
referred to collectively as “the trademarks”).
Respondent’s correct name is
John Frank Rosenblum.
Respondent registered the
disputed domain name on September 29, 1994.
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 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
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.
It is clear from the wording of paragraph 4(a)(i) of the Policy that Complainant must establish that it
has rights in a trademark or service mark and that the disputed domain name is
identical or confusingly similar to that mark.
In this case, Complainant relies on the
trademarks set out above. Strictly speaking, there is no evidence that
Complainant has rights in any of those trademarks, as they are owned not by
Complainant, as alleged, but by Barnes & Noble College Bookstores, Inc. The
evidence is that Complainant is a wholly-owned subsidiary of Barnes &
Noble, Inc. and if that company were the registered owner of the trademarks the
Panel would, of course, apply the normal principle that the subsidiary has
rights in the trademarks of the parent. However, in the present case
Complainant asserts that the trademarks are owned not by the parent company but
by Complainant, which they clearly are not.
The Panel, however, assumes that the
registered owner of the trademarks is also a member of the same corporate
family as Complainant and that Complainant also has rights of some sort in the
trademarks. The Panel will therefore not exclude Complainant from proceeding,
but notes that the issue under discussion is an essential element to be proved
under the Policy and that it should be done by evidence.
On the more substantial issue, Complainant
contends that the domain name is confusingly similar to the trademarks. In
substance, this is an argument that the domain name <noble.com> is confusingly similar to the trademark BARNESANDNOBLE.COM.
Merely to state the proposition shows that it
has little to commend it. The test to be applied is whether an objective
bystander, presented with both the wording of the domain name and the wording
of the trademark would probably conclude that the ‘noble’ of the domain name
was referring to the ‘noble’ of the trademark and hence to the trademark as a
whole. The Panel finds that no reasonable bystander could reach that
conclusion. That is so for the following reasons.
First, the word ‘noble’ is a common or
dictionary word or what is often referred to in the present context as a
generic word. That being so, the reasonable bystander would almost certainly
conclude that the word was being used in its natural and ordinary meaning,
namely that the object or concept being referred to, whatever it may be, was
dignified or illustrious, for that is the meaning of the word “ noble”. That
conclusion would be drawn because there is no reason why the word, standing
alone, would be used in any but its natural and ordinary meaning and there is a
presumption that words carry their natural and ordinary meaning, unless it is
made clear that they do not.
Secondly, the overall thrust of the trademark
is “BARNESANDNOBLE” and its dominant feature is not “ NOBLE”
but “BARNES”, for it is the first element seen by the reader. There is no
reason at all why a reader would assume that a domain name using, not the words
of the trademark itself (BARNESANDNOBLE)
or even the first element of the trademark (BARNES), but the least dominant
part of it (NOBLE), was invoking the trademark.
Thirdly, Complainant argues that the use of
the word “noble” by itself identifies Complainant and its prestigious chain of
bookshops. But there is no evidence that consumers in
general or even some consumers believe that “noble” identifies the Complainant.
Moreover, if this were so, it is curious that Complainant has chosen as
trademarks, which are the marks by which it claims to be identified, at least
three that do not include the word “noble” at all. It must be remembered that
Complainant’s case is that the domain name is confusingly similar to all of the
trademarks that it relies on, including trademarks for MYBNLINK, BN.COM and
B&N. This tends to suggest that
Complainant does not identify itself with the word “noble” standing alone,
which makes it even more unlikely that others would do so.
Fourthly, the arguments advanced by
Complainant as to why the domain name is confusingly similar to the principal
trademark BARNESANDNOBLE.COM are themselves of no substance. Complainant
contends that Respondent has engaged in what it refers to as “typosquatting”
which it defines as “relying on common variants or misspellings of a trademark
in order to capture web users who inadvertently type the wrong keystrokes or
who add a common term to the domain name ….” Presumably Complainant means “…add a common
term to the trademark.”
As to the first element, the present is not a
case of typosquatting, for no part of the wording of the trademark has been
misspelled. The reasonable bystander would assume not there had been a
misspelling, deliberate or otherwise, but that the name “noble” had been spelt
correctly and chosen for the domain name without any awareness of or reliance
on any of the trademarks or any attempt to confuse the one with the other.
Typosquatting is amply demonstrated by the
decided cases involving Complainant itself and of which it is presumably aware.
For example, in Barnes & Noble College Bookstores, Inc. v.
Leasure Interactive D2001-1216
(WIPO, March 25, 2002), the Respondent had
registered the domain name <bunsandnoble.com>, which was an obvious case
of typosquatting, for the Respondent had misspelled the famous mark BARNES
& NOBLE to ensnare internet users who made a typing mistake. The panel was
therefore able to say that the domain name was confusingly similar to the
trademark because it was “similar in sound to Complainant's marks”. Likewise, the 34 obvious misspellings of the Barnes & Noble
name, such as<barnesandnobele.com>,
<barnesandnpble.com> and <varnesandnoble.com> in
In any
event, it must again be remembered the substance of the Complainant’s case.
That case is that Respondent registered the contentious domain name on September 29, 1994 deliberately to ensnare internet users who were on a
search for <barnesandnoble.com> and that having ensnared them, it
contrived to divert them away from Barnes and Noble to the website of its rival
<amazon.com>. It is therefore an essential element of Complainant’s case
that Respondent engaged in this conduct deceptively and improperly. Respondent
registered the domain name on September
29, 1994. But Complainant’s trademark BARNESANDNOBLE.COM (and design) was not
registered until June 26, 2001 and had not been applied for until October 30, 1998; BARNESANDNOBLE.COM was not registered until November 2, 1999 and had
not been applied for until October 30, 1998; BARNES&NOBLE.COM (and Design) was not
registered until December 18, 2001 and had not been applied for until October 17, 2000; BARNES&NOBLE.COM was not registered until November 27, 2001 and
had not been applied for until October 17, 2000; its own domain name was not
registered until August 10, 1995 and according to <archive.org> it did
not have a website until December 2, 1998; and <amazon.com> did not have
a website until December 12, 1998. All of
these events occurred well after Respondent registered the contentious domain
name.
Accordingly, it is extremely unlikely that Complainant was engaging in
typosquatting to invoke Complainant’s trademarks at a time when they had not
been registered or applied for.
It must also be clear that there has been no
breach of what Complainant gives as the second example of typosquatting.
Nothing has been added to the trademark to create the domain name. The domain
name simply consists of one of the four words that go to make up the trademark,
showing that it has virtually no similarity to the trademark.
It is difficult to find an arguable reason for concluding that the
domain name is confusingly similar to the trademarks and the Panel’s conclusion
must be that it is not confusingly similar.
Accordingly Complainant has failed to make out the first of the three
elements that it must establish.
It is therefore unnecessary to examine the remaining two additional
elements. The Panel will, however, give its conclusions on those issues as they
are relevant to the Panel’s decision on Reverse Domain Name Hijacking.
Under paragraph 4(a)(ii) of the Policy, Complainant has the burden of establishing that Respondent has no rights or legitimate interests in respect to the domain name.
But by virtue of paragraph 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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.
Thus, if a respondent proves any of these elements or indeed anything else that shows it has a right or legitimate interest in the domain name, the complainant will have failed to discharge its onus and the complaint will fail.
Respondent relies, first, on paragraph 4(c)(i) of the policy and says that for some 13 years prior to the dispute he used the domain name “in connection with a bona fide offering of goods or services…” or in other words that he used it in his business.
As has already been noted, Respondent registered the domain name on September 29, 1994. The evidence is that since then, Respondent has been using the domain name in its business of creating “high quality professional programs for distribution on the internet” and other forms of media. Respondent specifically asserts that “[t]he company has conducted its digital media trade under the <noble.com> name since the company’s first internet client in 1994.” In addition, Respondent says that he has used the domain name for name servers, to host websites and to provide email addresses.
To this, Complainant replied by repeating its primary allegation that Respondent has no right or legitimate interest in the domain name as he was “using it to further a click-fraud scheme.” The “click-fraud scheme” is said to be the linking of the domain name to the website of Complainant’s well-known competitor <amazon.com>. Indeed, Complainant alleges that the plan to siphon business away from Complainant and to <amazon.com> was the reason why Respondent “procured” the domain name in the first place.
Complainant’s original submission was that the domain name resolved automatically to <amazon.com>. In its Additional Submission Complainant says that the domain name previously resolved to <amazon.com> “within seconds,” but that “[a]fter filing of the Amended Complaint by B&N, Respondent appears to have changed the site so as no longer to resolve to www.amazon.com.”
That does not seem to be entirely correct but it is partly correct. The domain name did not resolve to <amazon.com> on June 30 or August 5, 2007, the dates of the two most recent pages revealed by the Wayback Machine at <archive.org>. Those dates were prior to the filing of the Amended Complaint on October 10, 2007 and the material on the website on those dates related to the services of <noble.com> and had no reference to <amazon.com>. It is therefore not correct to say that that the domain name ceased to resolve to <amazon.com> only after the Amended Complaint was filed.
However, it also appears from the Wayback Machine that, although for several years the domain name resolved to <noble.com>, the website had no content other than advertisements for <amazon.com> and, before that, advertisements for Barnes and Noble amongst others.
It can also be ascertained from the Wayback Machine that, at times, the domain name resolved to <noble.com>, although users were then automatically diverted to <amazom.com>.
The other difficulty is that there is no evidence on when Respondent was given notice of the dispute, a fact which is crucial to determining whether there is a right or legitimate interest in the domain name under paragraph 4(c)(i) of the Policy. In the absence of any such evidence the Panel must assume that Respondent received notice of the dispute on or shortly after the date of the Amended Complaint, namely October 10, 2007.
Accordingly, taking all this material together, it appears that, whatever use the Respondent made of the domain name to link internet users to <amazon.com> and whatever the propriety of his doing so, he nevertheless used the domain name for other purposes of his own which can only be described as being “in connection with a bona fide offering of goods or services; ...” and did so prior to notice of the dispute.
The evidence is that Respondent used the domain name in his business of making programs and also in connection with name servers, hosting websites and providing email addresses. In addition, it appears from the Wayback Machine that the domain name was used for a website devoted solely to the services offered by Respondent on June 30 and August 5, 2007 and the period around those dates, which is also a use “in connection with a bona fide offering of goods or services; …” and prior to notice of the dispute.
On the balance of probabilities, the Panel therefore concludes that before the dispute arose, Respondent was using the domain name in the course of its business and “in connection with a bona fide offering of goods or services; …” within the meaning of paragraph 4(c)(i) of the Policy.
Accordingly, Respondent has established that it has a right or legitimate interest in the domain name, which is sufficient by itself to defeat the Complaint.
Respondent also relies on paragraph 4(c)(iii) of the Policy to say that it has made a fair use of the domain name because it consists of a generic, common or descriptive word. If established, that situation has long been regarded as giving rise to a right or legitimate interest in the domain name and the Panel finds that it clearly does in the present case. The situation is analogous to many decided cases, one of which, cited by Respondent is sufficient to illustrate the point.
That decision is Energy
Source Inc. v. Your Energy Source, FA0101000096364 (Nat. Arb. Forum, Feb. 19,
2001) which concerned the domain name <yourenergysource.com>. The panel found that the respondent on
general principle had a right or legitimate interest in the domain name,
observing:
Second, Respondent claims that it is making a fair use of
the domain consistent with Paragraph 4(c)(iii) of the
Policy. See Rollerblade, Inc. v. CBNO and
Ray Redican Jr., D2000-0427 (WIPO Aug. 24, 2000) (finding that
"genericness, if established, will defeat a claim of trademark rights,
even in a mark which is the subject of an incontestable registration");
see also SOCCERPLEX, INC. v. NBA Inc.,
FA 94361 (Nat. Arb. Forum May 25, 2000) (finding that the Complainant failed to
show that it should be granted exclusive use of the domain name
"SOCCERZONE.COM", as it contains two generic terms and is not
exclusively associated with its business). Respondent has persuasively shown
that the domain name is comprised of generic and/or descriptive terms, and, in
any event, is not exclusively associated with Complainant’s business.
Those remarks are equally applicable to the present case, for “noble” is a generic or dictionary word that is not exclusively associated with Complainant.
Respondent thus has a right or legitimate interest in the domain name because it is a generic or common word and it is now well established that the registration of such a name creates a right or legitimate interest for the purposes of the Policy.
On this second ground, also, Respondent has thus shown that he has a right or legitimate interest in the domain name.
Complainant must prove on the balance of probabilities both that the domain name was registered in bad faith and that it is being used in bad faith: Telstra Corp. Ltd. v. Nuclear Marshmallows, D2000‑0003 (WIPO Feb. 18, 2003).
Paragraph 4(b) of the Policy sets out four circumstances, any one of which is evidence of the registration and use of a domain name in bad faith, although other circumstances may also be relied on, as the four circumstances are not exclusive. The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, 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 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, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on‑line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.
The substance of Complainant’s argument is
that “Respondent’s registration of the domain name was intended to further its “click
fraud scheme.” The subsidiary allegation
is also made that not only was Respondent’s use of the domain name in bad
faith, but his actual registration of the domain name was also in bad faith.
Clearly that cannot be so, because the domain name was registered prior
to all of the trademarks, prior to the registration of Complainant’s own domain
name <barnesandnoble.com> and before both Complainant and <amazon.com>
started their own websites: according to <archive.org>, Complainant did
not have a website until December 2, 1998 and <amazon.com> did not have
website until December 12, 1998, both well
after the registration of the domain name on September 29, 1994.
These facts make it improbable, if not impossible, for Respondent to
have conceived the alleged fraud on September 29, 1994 when he registered the
domain name. Indeed, if Respondent had wanted to institute such a fraud, he
would presumably have registered <barnesandnoble.com> which was available
until August 10, 1995 or some other domain name more appropriate than <noble.com> which the Panel has
already found does not suggest to the reasonable bystander the name of
Complainant.
Accordingly, this case is a clear example of a domain name having been
registered prior to Complainant’s trademarks, which is now well-established, in
the absence of countervailing facts, as preventing a finding of bad faith
registration, especially as the domain name <noble.com> was a generic or common word that had not
acquired any distinctiveness or identification with Complainant; see, as an
example of this principle, the case cited by Respondent, Trek Bicycle Corp. v. Image G? Ikonographics, FA 852695 (Nat. Arb.
Forum Jan. 19, 2007).
That being so, Complainant
cannot establish the essential requirement under paragraph 4(a)(iii) of the Policy, namely that the disputed domain name
had been “registered ” in bad faith.
REVERSE DOMAIN NAME HIJACKING
Respondent has asked that a finding be made against Complainant of Reverse Domain Name Hijacking.
Paragraph 15(e) of the Rules provides inter alia:
If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.
Paragraph 1 of the Rules defines reverse domain name hijacking as “using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name.”
A useful statement of the test to be applied by panels in considering Reverse Domain Name Hijacking in cases such as the present is to be found in Proto Software, Inc. v. Vertical Axis, Inc/PROTO.CO, D2006-0905 (WIPO Oct. 10, 2006), where a three-person panel said:
Initiating domain name dispute resolution proceedings
necessarily involves putting the parties to a considerable expenditure of time
and in many cases cost and the Policy must not be used unless the complainant
has a reasonable and credible belief it is entitled to succeed. In particular,
proceedings must not be commenced in a brash and totally unjustifiable attempt
to pressure a domain name owner into releasing a legitimately held domain name
that considerably pre-dates any trademark rights held by the complainant, see Sustainable Forestry Management Limited v. SFM.com
and James M. van Johns “Infa dot Net” Web Services, WIPO Case No. D2002-0535.
There are certainly facts in the present case that, in the
absence of anything else, would justify a finding of Reverse Domain Name
Hijacking: the prospect of having a panel decide that <noble.com> was confusingly similar to BARNESANDNOBLE.COM was
excessively optimistic; moreover, a proper examination of the facts should have
revealed to any close observer that Respondent could not have registered the
domain name in bad faith, because Complainant’s trademark rights were acquired
after the registration of the domain name, no matter what intention Respondent
may have formed after the date of registration.
On the other hand, it is clear that for considerable
periods of time the domain name, although it resolved to www.noble.com, was
linked to <amazon.com> and that at other times <noble.com> carried extensive advertisements for
<amazon.com> which was and is a commercial rival of Complainant.
This must have given rise to a concern on behalf of
Complainant that there was indeed some concerted plan afoot to divert its
business to Amazon and Complainant was reasonably entitled to bring the
Complaint to try to take control of the domain name at the centre of any such
plan, even if, as subsequently transpired, it was unable to establish any of
the three elements it was required to prove under the Policy.
For that reason, the Panel will not
make a finding of Reverse Domain Name Hijacking.
THE RESPONDENT’S CORRECT NAME