G.O. Corporation I, Inc. v. Damon DoRemus / JD Young
Claim Number: FA1609001695886
Complainant is G.O. Corporation I, Inc. (“Complainant”), represented by Z. Peter Sawicki of Westman, Champlin & Koehler, P.A., Minnesota, USA. Respondent is Damon DoRemus / JD Young (“Respondent”), represented by Shawn M. Dellegar of Crowe & Dunlevy, P.C., Oklahoma, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gofreshusa.com>, registered with DNC Holdings, Inc..
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 28, 2016; the Forum received payment on September 28, 2016.
On September 30, 2016, DNC Holdings, Inc. confirmed by e-mail to the Forum that the <gofreshusa.com> domain name is registered with DNC Holdings, Inc. and that Respondent is the current registrant of the name. DNC Holdings, Inc. has verified that Respondent is bound by the DNC Holdings, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 3, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@gofreshusa.com. Also on October 3, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on November 17, 2016.
On November 21, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons as Panelist.
On November 22, 2016, Complainant filed Additional Submissions which were determined to have been made in a timely manner according to the Forum's Supplemental Rule #7.
On November 28, 2016, Respondent filed Additional Submissions which were determined to have been made in a timely manner according to the Forum's Supplemental Rule #7.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts common law trademark rights in G.O. FRESH which it alleges has been in continuous use since 2003 in respect of the wholesaling of fresh produce. Complainant further asserts registered trademark rights as later described.
Complainant submits that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Further, Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
Complainant states that it has not authorized Respondent to use the G.O. FRESH trademark. Complainant states that prior to registration of the disputed domain name, Respondent had done business under and was known by the name, “Tulsa Fruit”. Complainant states that the disputed domain name resolves to a website promoting the sale of fresh produce and that the domain name was registered and used in bad faith in the knowledge of Complainant’s trademark.
B. Respondent
Respondent does not challenge Complainant’s trademark rights but claims that the words “go fresh” are descriptive and are in use by other traders.
Respondent states that a family business selling fruit, produce and other perishable goods had traded under the name “Tulsa Fruit Company” since 1941. Respondent states that in 2009 that business “rebranded as GoFresh” and at the same time the business was incorporated as GoFresh LLC.
Respondent states that since 2009 it has continued to use the name “GoFresh” in connection with that business.
Respondent claims that it registered the disputed domain name without prior knowledge of Complainant’s business or the G.O. FRESH trademark.
Further, Respondent claims that Complainant has been aware of Respondent’s business and use of the “GoFresh” name for many years and that the Complaint should be denied either on application of the Policy or by reason of laches.
C. Additional Submissions
As stated above, both parties filed Additional Submissions which were determined to have been made in a timely manner according to the Forum's Supplemental Rule #7. Panel has taken those submissions into account and refers to them as required in the Discussion which follows.
A. Identification of Respondent
Paragraph 1 of the Rules defines “Respondent” to mean “the holder of a domain-name registration against which a complaint is initiated. Paragraph 3(b)(v) states that the Complaint must “[p]rovide the name of the Respondent (domain-name holder).”
The publicly available WhoIs data for the disputed domain name lists the Registrant Name as “Damon DoRemus” and the Registrant Organization as “JD Young”.
The Complaint identifies the listed Registrant Name and Organization as Respondent. Nevertheless, the Complaint directs all of its submissions towards another legal entity, GoFresh LLC, which it treats as the respondent and other party without explanation.
Paragraph 5(b)(i) of the Rules states that the Complaint must “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain-name holder) to retain registration and use of the disputed domain name.”
The Response identifies GoFresh LLC as Respondent and states that “[w]hilst JD Young is identified in the WHOIS information as the Registrant Organisation, JD Young is Respondent’s marketing, advertising, branding, and information technology service provider and registered the … domain name …on behalf of the Respondent.”
The Response makes no reference at all to the listed Registrant, “Damon DoRemus”, and, like the Complaint, proceeds on the basis that these Administrative Proceedings are between Complainant and GoFresh LLC.
Rule #1(d) of the Forum’s Supplemental Rules states that [t]he Holder of a Domain Name Registration, as used in The Rules (Rule 1), means the single person or entity listed in the WHOIS registration information at the time of commencement.”
Were the Panel to act in strict conformity with these Rules, the Complaint would be denied since it fails to establish critical matters in relation to the Holder of the domain name. However, other panelists applying the Policy have, in limited circumstances, used their discretion to treat a party other than the domain name holder as the respondent for the purposes of assessment of the evidence.
In this case, it is common ground that GoFresh LLC controls the domain name and is responsible for the matter which appears on the resolving website. The Panel’s own enquiries indicate that JD Young is a Tulsa based services provider. Accordingly, the Panel determines that the submissions and evidence in these Administrative Proceedings by or concerning GoFresh LLC can be treated as submissions and evidence in relation to Respondent. Further references are to either Respondent or GoFresh LLC as the context requires.
B. Other legal proceedings
Paragraph 3(b)(xi) of the Rules states that the Complaint must “[i]dentify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the domain name(s) that are the subject of the complaint.” (emphasis added). The Complaint makes the statement in § 15 that “there are no other pending legal proceedings initiated by Complainant, with respect to the <copierrecruits.com> domain registration.”
The Response makes the statement in § 4 that “there are no other pending legal proceedings in connection with or relating to the <gofreshusa.com> domain name that is the subject of the Complaint.”
Aside from the obvious clerical error in the Complaint, both statements are non-compliant with the Rules since the Response exhibits copies of court documents from concluded and related court proceedings in the State of Oklahoma (the “District Court case”).
The District Court case concerned an action (“Complaint for Declaratory Judgment”) brought by Respondent on August 4, 2009 against Complainant and concerned threats of trademark infringement made by Complainant against Respondent in respect of use of the GOFRESH name. The initiating court document refers to “an immediate, real and justiciable controversy exists between the parties” to the action and Respondent sought a declaration of non-infringement together with an order restraining any further allegations of infringement.
The court dismissed the matter without prejudice on June 30, 2010 for failure to timely make service on defendant or show good cause for its failure to make service.
It follows that the District Court case is not dispositive of these Administrative Proceedings.
These matters considered, the Panel now moves onto Findings relevant to the application of the Policy.
The factual findings pertinent to the decision in this case are that:
1. Complainant provides fresh produce by reference to the trademark G. O. FRESH;
2. Complainant is the owner of United States Patent and Trademark Office (“USPTO”) Reg. No. 4,035,172, registered on October 4, 2011, filed on November 18, 2003, for the trademark G. O. FRESH;
3. Respondent is a wholesaler of fresh produce;
4. the disputed domain name was registered on March 27, 2009;
5. on May 26, 2009, GoFresh LLC was incorporated; and
6. there was no pre-existing relationship between the parties nor any relevant permission to use the trademark G. O. FRESH.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trade mark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trade mark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. A trademark registered with a national authority is evidence of trademark rights[i] and Complainant has provided evidence of its USPTO registration for G. O. FRESH. Panel is therefore satisfied that Complainant has trademark rights.
The Panel is also satisfied that the disputed domain name is confusingly similar to Complainant’s trademark. The disputed domain name takes the trademark and adds non-distinctive elements – namely, the gTLD, “.com” and the country designator “USA”, neither being additions which distinguish the domain name from the trademark in any significant way so as to avoid confusion[ii].
The Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
The Panel regards this as a convenient point to make certain additional findings which are of relevance to the later analysis. First is Complainant’s assertion of common law rights (in addition to its registered rights). In that regard, it is enough to refer to pre-Complaint correspondence between the parties’ attorneys and, in particular, to that part of Respondent’s attorney’s letter of July 7, 2009.
While your client may possess common law rights in and to the G.O. FRESH mark, such rights would be limited to geographic areas in which they have actually used the mark in commerce. Based on your client’s website, they are located in Minneapolis, Minnesota and serve customers within a five (5) state region. As such, any common law rights your client may possess do not extend beyond this five (5) state region. As mentioned above, our client, GoFresh, LLC, currently services Oklahoma, Western Arkansas, Southwest Missouri, and Southern Kansas, which do not overlap your client’s five (5) state region of usage. Given that your client’s locus is in Minnesota, and given that your client’s operations do not extend south of Nebraska, and given that produce wholesalers tend to be somewhat local in consumer, we do not believe that there is any likelihood of confusion. Furthermore, any suit against our client would have to be brought here rather than in Minnesota.
The Panel notes that Complainant’s claim to use of its trademark since 2003 is not disputed. It further notes the geographical reach of Complainant’s business. Had paragraph 4(a)(i) of the Policy turned on proof of unregistered trademark rights, Panel would have been prepared to find that such rights existed.
Second is the matter of Respondent’s claim that the words “go fresh” are descriptive and are in common usage by other traders. It states, in particular, that the trademark is “not inherently distinctive and several concurrent users for similar marks exist in the United States.” The Panel notes that there is no evidence put forward to support either of those claims.
Complainant is required to make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests[iii].
Paragraph 4(c) of the Policy states that 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 rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you 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 (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 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 trade mark or service mark at issue.
Complainant asserts that Respondent had been known as “Tulsa Fruit” for 70 years and is not commonly known by the domain name. Complainant states that Respondent has not been authorized to use Complainant’s trademark or to register any domain name incorporating that trademark. Complainant contends that Respondent does not use the domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is used to compete with Complainant by offering substantially similar goods.
The Panel finds that Complainant has made out a prima facie case and so the onus shifts to Respondent to show either a right or legitimate interest in the domain name.
In that respect, Respondent argues that it has used the name “GoFresh” and the disputed domain name since 2009 and so has become commonly known by one or other of those names.
Respondent argues, further, that it had no knowledge of Complainant’s business or trademark at the time it registered the disputed domain name and that before it had any notice of the dispute, it had used the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods.
The evidence given by Respondent in support of those claims comprises the following:
· A company name registration of GOFRESH LLC (made on May 26, 2009) with the Oklahoma Secretary of State;
· An abandoned trademark application (lapsed without achieving registration) for a GOFRESH Logo filed with the USPTO on June 2, 2009;
· A trademark registration for GOFRESH (granted on September 28, 2012) with the Oklahoma Secretary of State;
· Screenshots from the website at www.gofreshusa.com; and
· Various social media pages from November 2016.
None of this material shows that Respondent has been commonly known by the domain name. Proof of registration of a company name is not a substitute for proof of use or reputation. A failed USPTO application is proof of very little. A US State trademark registration (essentially a deposit with no substantive examination) is, likewise, of no benefit in showing that its owner might be commonly known by the trademark. The website describes Respondent’s business and what it sells, when it adopted the “GoFresh” name, and where it operates, but does not establish anything more of relevance in terms of whether the Respondent is commonly known by the name. The social media pages show some current blogs, of no value in determining that question. In short, there is nothing to substantiate Respondent’s claim under paragraph 4(c)(ii) of the Policy.
Whether or not the same material shows that Respondent had used the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods before any notice of the dispute for the purposes of paragraph 4(c)(i) of the Policy is another matter.
The first issue for determination is the date when it could be properly said that Respondent had notice of the dispute. That date is not necessarily the date of notification to Respondent of the Complaint in these proceedings. The language of the Policy refers simply to “the dispute”.
The District Court case concerned use of the name “GoFresh”. The District Court case was preceded by (and presumably sparked by) a June 30, 2009 “cease and desist” letter from Complainant to Respondent. Panel determines the relevant date as being the date on which that demand letter was received by Respondent. For the avoidance of any doubt, the Panel will treat July 7, 2009 as the relevant date, being the date on which Respondent’s attorneys replied in writing to the demand letter.
The question becomes whether or not Respondent had made bona fide use of the “GoFresh” name in relation to its business before July 7, 2009.
Given that Respondent’s business is substantially identical to Complainant’s business, the bona fides of Respondent’s actions hinge on the evidence of its state of mind prior to July 7, 2009. In that respect I note the declaration made by Gabe Johnson, CEO of Respondent, wherein it is declared that Respondent was unaware of Complainant or its trademark at the time Respondent registered the domain name in March 2009.
Complainant argues that Respondent had, at least, constructive notice of its trademark rights by reason of the fact that its USPTO registration dates back to its November 18, 2003 filing date. However, despite a populist view that a respondent in UDRP proceedings is on constructive notice of a complainant’s trademark rights by reason of the existence of a Federal trademark registration, the predominant viewpoint of UDRP panelists has been to reject that argument and insist on a respondent’s actual knowledge of a complainant’s trademark rights.[iv]
Nonetheless, it is Respondent which at this time bears the onus of proof and on the basis of Panel’s expanded remarks under “Bad Faith” set out below, there is no clear evidence of Respondent’s bona fide use of the domain name before July 7, 2009.
For these reasons Panel finds that Respondent has not discharged the onus of proof which fell to it and accordingly Panel finds that Complainant has established the second element of the Policy.
Complainant must prove, on the balance of probabilities, both that the disputed domain name was registered in bad faith and that it is being used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
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.’
It is to be noted that although all four scenarios set out above are conclusive of bad faith registration and use for the purposes of paragraph 4(a)(iii) of the Policy, paragraphs 4(b)(i)-(iii) turn on bad faith registration whilst paragraph 4(b)(iv) hinges simply[v] on bad faith use. In this case Panel finds that Respondent’s actions fall under paragraph 4(b)(iv) for the following reasons.
Panel has already found the domain name to be confusingly similar to the Complainant’s trademark. Panel also accepts that Complainant has common law trademark rights. Accordingly, the confusion that exists is of the likely source or affiliation of Respondent’s website. Further, the website exists for commercial gain.
It is clear that by July 2009 Respondent was on notice of Complainant’s claimed trademark rights (and had recognized its possible common law trademark rights) and by 2012[vi] was on notice of its Federally registered trademark rights. Respondent continued to use the domain name and did so in bad faith according to paragraph 4(a)(iv) of the Policy.
Although that might be the end of the matter, it has been observed that paragraph 4(a)(iv) of the Policy should not be applied when there is plainly no evidence of registration in bad faith.
That cannot be said with confidence in this instance. The parties are competitors in the same business. The evidence is that, in spite of their geographical separation, Complainant was well aware of Respondent’s “rebranding” in a matter of a few months. Panel finds it likely that Respondent would be aware of its competitors and certainly those trading in several States of the US for six years prior to its rebranding. Further, notwithstanding the lack of evidence attendant upon that rebranding exercise, the facts are that Respondent’s unincorporated business had operated since 1941 under an entirely different name. Selection of a new company name, trademark and domain name involves a level of due diligence and should have, at least at the time of registration of the disputed domain name, brought to Respondent’s notice Complainant’s domain name. Further, a perfunctory USPTO trademark search would have uncovered Complainant’s pending application for registration of a substantially identical trademark.
Finally, there is no evidence before the Panel of either of Respondent’s claims that the expression “go fresh” is not distinctive or that “several concurrent users for similar marks exist in the United States”. The insinuation that the expression “go fresh” is generic is therefore unfounded.
It is against this background that the Panel must weigh the evidence that Respondent was unaware of Complainant’s business and trademark. On balance, it cannot be said that there is clear evidence that the domain name was registered in good faith. Accordingly, Panel’s finding under paragraph 4(b)(iv) remains undisturbed.
Complainant has established the third and final element of the Policy.
These findings are dispositive of the matter, but for Respondent’s submission that the Complaint should be denied based on the doctrine of laches.
A legal claim may be denied on equitable grounds in the case of unreasonable delay in asserting or prosecuting a claim or where a claimant has acquiesced in the face of actionable conduct.
Much of Respondent’s Additional Submissions are occupied by elaboration of the argument, put simply, that Complainant had been aware of Respondent’s use of the name “GoFresh” and the disputed domain name for seven years prior to the filing of the Complaint, during which time it took no concerted action to enforce its asserted rights.
On the evidence, there was much agitation on Complainant’s part in 2009 and later in 2012, but little at other times. Respondent therefore argues that Complainant acquiesced for long periods of time in the knowledge of Respondent’s activities and use of the domain name and so the Complaint should be barred.
Whether or not Respondent’s argument is properly one of laches or some other equitable estoppel is less important than the fact that these are discretionary matters, even for a Court, and although disentitling conduct by a complainant has been successfully argued under this Policy, the better view was expressed in Square Peg Interactive Inc. v. Naim Interactive Inc., FA 209572 (Forum Dec. 29, 2003) where the panelist noted that:
“[a]lthough laches by itself is not a defense to a complaint brought under the Policy, Complainant's delay in seeking relief is relevant to a determination of whether Respondent has been able to build up legitimate rights in the Domain Name in the interim, and whether it is using the Domain name in bad faith.”
Any use Respondent made of the domain name after July 7, 2009 was done in the knowledge of Complainant’s assertion of trademark rights and insistence that Respondent should adopt another name. The District Court case brought by Respondent for unjustified threats of trademark infringement was not pursued by Respondent and was dismissed by the Court.
The pause in the flow of Complainant’s demand letters after that time until 2012 is readily explained by fact that Complainant’s USPTO registration was not granted until the end of 2011.
Panel notes that no opposition proceedings were brought by Respondent against that application and there is no evidence that Respondent has later sought to revoke the registration.
The period between Federal registration of Complainant’s trademark and these Administrative Proceedings is three years, not an inordinate length of time in the circumstances.
To the extent that there might be said to have been some sort of delay, it was not delay which then made Respondent’s use bona fide, or which permitted Respondent to build up legitimate interests in the domain name, bearing in mind what the Panel has already found.
The Panel finds that there is no reason on the facts to set aside its conclusions under the Policy on the basis of delay.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gofreshusa.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: November 30, 2016
[i] See State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Nat. Arb. Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”); see also Mothers Against Drunk Driving v. phix, FA 174052 (Nat. Arb. Forum Sept. 25, 2003) finding that the complainant’s registration of the MADD mark with the United States Patent and Trademark Office establishes the complainant’s rights in the mark for purposes of Policy paragraph 4(a)(i).
[ii] See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar; see also InfoSpace, Inc. v. domains Asia Ventures, FA 198909 (Nat. Arb. Forum Nov. 10, 2003) dealing with the disputed domain name <dogpileuk.com> where the integer “uk” was added to the DOGPILE trademark; Dollar Fin. Grp., Inc. v. Jewald & Assocs. Ltd., FA 96676 (FORUM Apr. 6, 2001) (“The addition of ‘US’ or ‘USA’ does not alter the underlying mark held by the complainant.”); see finally U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (FORUM Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”).
[iii] See Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000); see also Hanna‑Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006).
[iv] See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Panel notes incidentally that Complainant’s USPTO trademark application did not mature to registration until October 4, 2011 and had a colourful prosecution history, something heavily relied upon by Respondent.
[v] See following discussion.
[vi] By which stage Complainant had provided Respondent with proof of its Federal registration.
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