Chernow Communications Inc. v. Jonathan D. Kimball

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE PANEL DECISION

Chernow Communications, Inc. v. Jonathan D. Kimball

Case No. D2000-0119

1. The Parties

1.1 The Complainant is Chernow Communications, Inc., a corporation organized

under the laws of the State of Colorado, United States of America, having its

principal place of business at 900 20th Street, Boulder, Colorado,

United States of America.

1.2 The Respondent is Jonathan D. Kimball, an individual having an address

at 167 East 77th Street 3, New York, New York, United States of America.

2. The Domain Name(s) and Registrar(s)

The domain name at issue is <ccom.com>, which domain name is registered

with Network Solutions, Inc., based in Herndon, Virginia.

3. Procedural History

3.1 A Complaint was submitted electronically to the World Intellectual Property

Organization Arbitration and Mediation Center (the "WIPO Center")

on March 3, 2000, and the signed original together with four copies

was received on March 6, 2000. An Acknowledgment of Receipt was sent by the

WIPO Center to the Complainant, dated March 6, 2000.

3.2 On March 5, 2000, a Request for Registrar Verification was transmitted

to the registrar, Network Solutions, Inc. ("NSI") requesting it to: (1) confirm

that the domain name at issue is registered with NSI; (2) confirm that the person

identified as the Respondent is the current registrant of the domain name; (3)

provide the full contact details (i.e., postal address(es), telephone number(s),

facsimile number(s), e-mail address(es)) available in the registrar’s Whois

database for the registrant of the disputed domain name, the technical contact,

the administrative contact and the billing contact; (4) confirm that the

Uniform Domain Name Dispute Resolution Policy (the "Policy") is in effect; (5)

indicate the current status of the domain name.

3.3 On March 6, 2000, NSI confirmed by reply e-mail that the domain name <ccom.com>

is registered with NSI, is currently in active status, and that the Respondent,

Jonathan D. Kimball, is the current registrant of the name. The registrar also

forwarded the requested Whois details, and confirmed that the Policy is in effect.

3.4 The WIPO Center determined that the Complaint satisfies the formal requirements

of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the

"Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute

Resolution Policy (the "Supplemental Rules"). The Panel has independently determined

and agrees with the assessment of the WIPO Center that the Complaint is in formal

compliance with the requirements of the Policy, the Uniform Rules, and the Supplemental

Rules. The required fees for a three-member Panel were paid on time and in the

required amount by the Complainant.

3.5 No formal deficiencies having been recorded, on March 8, 2000, a Notification

of Complaint and Commencement of Administrative Proceeding (the "Commencement

Notification") was transmitted to the Respondent (with copies to the Complainant,

NSI and ICANN), setting a deadline of March 27, 2000, by which the Respondent

could file a Response to the Complaint. The Commencement Notification was transmitted

to the Respondent by e-mail to the e-mail addresses indicated in the Complaint

and specified in NSI’s confirmation. In addition, the complaint was sent by

express courier to the postal address given. Having reviewed the communications

records in the case file, the Administrative Panel finds that the WIPO Center

has discharged its responsibility under Paragraph 2(a) of the Uniform Rules

"to employ reasonably available means calculated to achieve actual notice

to Respondent." In any event, evidence of proper notice is provided by

the evidence in the record of the Respondent’s participation in these proceedings.

3.6 On April 10, 2000, in view of the Complainant’s designation of a three-person

panel, the WIPO Center appointed David E. Sorkin and John Terry to serve as

Panelists in Case No. D2000-0119, having taken

into consideration the panelist nominations provided by the parties and having

received Statements of Acceptance and Declarations of Impartiality and Independence

from each of them.

3.7 On April 10, 2000, the WIPO Center gave each party a list of five candidates

for the Presiding Panelists to rank in order of preference. On April 20, 2000,

the WIPO Center notified the parties that M. Scott Donahey had been appointed

as Presiding Panelist and set the projected decision date as May 4, 2000. This

date was later extended to May 19, 2000.

4. Factual Background

4.1 Complainant registered the trade name "C-Com" in Colorado.

4.2 Complainant is in the business of communications services in connection

with telephone calling and Internet access services. Complainant's customers

are located throughout the United States. Complainant has expended money to

advertise its services in the telecommunications field and Complainant's mark

and name have acquired considerable good will and are assets of the business.

Complainant has done business under these marks for some years.

4.3 Complainant registered the service mark with the United States Patent and

Trademark Office and the registration issued on January 21, 1997, for "communication

services, namely long distance telephone services." A copy of the registration

was attached to the Complaint as Exhibit A.

4.4 Respondent registered the domain name <ccom.com> on August 14, 1997.

A copy of the Whois information concerning the domain name at issue is attached

to the Complaint as Exhibit B.

4.5 Respondent has alleged that "a search on the Internet yellow pages

directory, Switchboard.com yields [sic] 19 listings for companies with C COM

or CCOM in their name, and a search on the popular web site AltaVista.com yield

[sic] 11,413 Internet web pages containing the word CCOM."

4.6 Respondent contends that his purpose in registering the domain name at

issue was to "reserve for itself a generic domain name that combines the letter

'c,' which is commonly known among Internet users as a short-hand description

for 'relating to computers,' and the top level domain ('TLD') 'com,' as an abbreviation

for communication and commercial, and is the most popular TLD for commercial

entities."

4.7 The domain name at issue resolves to a web site which states "[t]his website

is currently under construction . . . for info about partnership opportunities

or domain availability, send email to jon.kimball@icapital.com. You are visitor

number:" followed by a counter which records the number of hits on the site.

The majority determined these facts by entering "www.ccom.com" and reviewing

the web page to which it resolved.[1] The

majority believes that this is the equivalent in a domain name case to the practice

of taking judicial notice. See, e.g., the United States Federal Rules

of Evidence, Rule 201.

5. Parties’ Contentions

5.1 Complainant

Complainant contends that Respondent has registered as a domain name a mark

which is identical to the service mark and trademark registered and used by

Complainant, that Respondent has no rights or legitimate interests in respect

to the domain name at issue, and that Respondent has registered and is using

the domain name at issue in bad faith.

5.2 Respondent

Respondent contends that the Second Level Domain ("SLD") name at issue is different

from Complainant's service mark in that the SLD "ccom" does not contain the

hyphen in "c-com." Respondent contends that there is no likelihood of confusion,

that there is no evidence of actual confusion, that Complainant has failed to

prove that Respondent has no rights to or legitimate interests in respect of

the domain name at issue, and that Complainant has failed to prove that Respondent

has registered and is using the domain name at issue in bad faith.

6. Discussion and Findings

6.1 Paragraph 15(a) of the Rules instructs the Panel as to the principles the

Panel is to use in determining the dispute: "A Panel shall 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."

Since both the Complainant and Respondent are domiciled in the United States,

and since United States’ courts have recent experience with similar disputes,

to the extent that it would assist the Panel in determining whether the Complainant

has met its burden as established by Paragraph 4(a) of the Policy, the Panel

shall look to rules and principles of law set out in decisions of the courts

of the United States.

6.2 Paragraph 4(a) of the Policy directs that the Complainant must prove each

of the following:

1) that the domain name registered by the Respondent is identical or confusingly

similar to a trademark or service mark in which the Complainant has rights;

and,

2) that the Respondent has no legitimate interests in respect of the domain

name; and,

3) the domain name has been registered and used in bad faith.

6.3 The SDL "ccom" is not a generic name.

6.4 The majority of the Panel rejects the Respondent's contention that the

domain name at issue is not identical to the Complainant's service mark. The

majority of prior Panel decisions, which are consistent with United States Court

decisions dealing with trademarks, have held that the use or absence of punctuation

marks, such as hyphens, does not alter the fact that a name is identical to

a mark. The Channel Tunnel Group Ltd. v. Powell, ICANN Case

No. D2000-0038; Seek America Networks, Inc. v. Tariq Masood and Solon

Signs, ICANN Case No. D2000-0131; Hewlett-Packard

Company v. Cupcake City, ICANN Case No. FA0002000093562; InfoSpace.com,

Inc. v. Tenenbaum Ofer, ICANN Case No. D2000-0075;

EFG Bank European Financial Group SA v. Jacob Foundation, ICANN Case

No. D2000-0036; Colgate-Palmolive Company v. Charles Kasinga, ICANN

Case No. FA0002000094203; Marriott International, Inc. CafÈ au lait,

ICANN Case No. FA0002000093670; Slep-Tone Entertainment Corporation d/b/a

Sound Choice Accompaniment Tracks v. Sound Choice Disc Jockeys, Inc., ICANN

Case No. FA2002000093636; NFL Properties, Inc. v. Rusty Rahe, ICANN Case

No. D2000-0128.

The majority believe that the discussion of the dissent and those cases it

cites elevates form over substance [2]. Moreover,

this disagreement over what is necessary for a second level domain name to be

identical to a trademark or service mark, rather than merely confusingly similar,

is more than academic. If the dissent's reasoning were accepted it would be

very easy in the future for a prospective cybersquatter, by inserting or deleting

a hyphen, to avoid the impact of the holding in Shirmax Retail Ltd./Detaillants/Shirmax

LTEE v. CES Marketing Group, Inc., Case No. AF0104 (sometimes referred to

as the "thyme.com case").

In the thyme.com case, the Panel found that if it were determined that a domain

name is identical to a mark, then such a determination would satisfy the first

of the three prong test for bad faith under the Policy, and there is no need

to show a likelihood of confusion. If the dissent's reasoning were to be adopted,

a would-be cybersquatter could simply eliminate the hyphen in "Hewlett-Packard"

or insert a hyphen in "Microsoft" and thereby avoid an automatic finding of

bad faith under ¶4(a)(i) of the Policy. Such conduct should not be encouraged.

6.5 Indeed, decisions have held that such conduct is in and of itself evidence

of bad faith. "Bad faith on the part of the Respondents is to be inferred

from using a hyphen as a device to obtain what is to all intents and purposes

a domain name which is identical to Claimant’s service mark and earlier registered

domain name." SeekAmerica Networks Inc. v. Tariq Masood and Solo Signs,

ICANN Case No. D2000-0131.

6.6 Rule 15(a) provides in pertinent part that the "Panel shall decide a complaint

on the basis of the statements . . . submitted . . . ." Complainant has stated

in its certified Complaint that "[Respondent] has no rights or legitimate interest

in the domain [<ccom.com>] based on [Complainant's] continuous and long

prior use of its mark ccom." Complaint, ¶ 9, at 3.

6.7 Complainant's statement shifts the burden to Respondent to rebut this allegation.

See, e.g., Policy, ¶ 4(c).

6.8 Respondent failed to make any of the showings described in Paragraph 4(c)

of the Policy.

6.9 Moreover, Complainant's registration of its service mark preceded Respondent's

registration of the domain name at issue by some seven months. Thus, at the

time Respondent registered the domain at issue, it had constructive notice of

Complainant's service mark. Finter Bank Zurich v. Gianluca Olivier, ICANN

Case No. D2000-0091; Barney's, Inc. v. BNY

Bulletin Board, ICANN Case No. D2000-0059.

The Panel believes the reason for finding constructive notice is both realistic

and practical. It is easy to do a trademark search online to determine whether

the domain name which one intends to register is identical or confusingly similar

to someone's registered mark. Indeed, Respondent performed similar searches

prior to filing his Response, and Respondent found 19 listings for companies

with "c-com" or "ccom" in their names and 11,413 Internet web pages containing

the word, "ccom." Had Respondent, prior to registration, performed a Trade Mark

search or searches similar to those he performed prior to filing the response,

and had he been acting in good faith, Respondent might have registered a different

name entirely.

6.10 The failure of Respondent to produce evidence sufficient to rebut Complainant's

allegations entitles the Panel to conclude that Respondent has no such rights

or legitimate interests in respect of the domain name at issue. Ronson, Plc

v. Unimetal Sanayal ve T.A.S., ICANN Case No.

D2000-0011; Parfums Christian Dior v. QTR Corporation, ICANN Case

No. D2000-0023.

6.11 The most difficult question facing the Panel is whether the Respondent

has registered and is using the domain name at issue in bad faith. Policy, ¶ 4(a)(iii).

6.12 Respondent's conduct does not bring it within any of the illustrations

of bad faith registration and use set out in Paragraph 4(b) of the Policy. However,

the majority believes that all of the facts, when taken together, are evidence

of bad faith registration and use. Telstra Corporation Limited v. Nuclear

Marshmallows, ICANN Case No. D2000-0003.

6.13 As set out, supra, at ¶ 6.8, Respondent had constructive notice

of Complainant's registered service mark at the time that Respondent registered

the domain name at issue. To the extent that Respondent has established that

others have registered "ccom" as a mark in other commercial fields or geographical

areas, Respondent would have had constructive knowledge of any marks registered

prior to his registration of the domain name at issue.

6.14 The facts that the domain name at issue resolves to a web site at which

the SLD name does not appear, that the site indicates it is "under construction,"

that it is suggested that the Respondent be contacted regarding domain name

availability, that a counter is prominently featured which registers the number

of visits to the site, and that the Respondent has failed to make a bona fide

use of the domain name at issue for almost three years, when taken together

constitute bad faith use.

6.15 It has been held that failure to make a bona fide use of a domain name

during a two-year period following registration constitutes bad faith. Mondich

and American Wine Biscuits, Inc. v. Brown, ICANN Case

No. D2000-0004. The majority believes this reasoning is sound. A registrant

should be given sufficient time to make preparations to use the registered domain

name, but the "parking" of a domain name is evidence of bad faith registration

and use. Beverages and More, Inc. v. Glenn Sober Mgmt., ICANN Case No.

AF-0092.

6.16 It has also been held that the use of a counter at the web site to which

the domain name resolves without other content is tantamount to an offer to

sell the domain name. Home Interior & Gifts, Inc. v. Home Interiors,

ICANN Case No. D2000-0010. In World Wrestling

Federation v. Bosman, ICANN Case No. D1999-0001, the Panel held that under

¶4(b)(i) of the Policy, an offer to sell the domain name at issue for more than

the costs incurred constituted evidence of bad faith registration and use.

6.17 Finally, the Panel refers to the decision in Ventura Foods LLC v. Pathi,

ICANN Case No. AF-0136, in which the Panel held: "The Respondent must be

shown to be using the domain name in bad faith. The Respondent has caused a

web page to appear announcing a future web site to internet [sic] users who

enter the domain name in their browsers. This is a use of the domain name, and

further is a use which gives effect to the bad faith with which the name was

registered."

6.18 Under all of the facts and circumstances present here, the majority finds

that Respondent has registered and is using the domain name at issue in bad

faith.

7. Decision

For all of the foregoing reasons, the majority of the Panel decides that the

domain name at issue is identical to the service mark which had previously been

registered by the Complainant, that the Respondent has no rights or legitimate

interests in respect of the domain name at issue, and that the domain name at

issue has been registered and is being used in bad faith. Accordingly, the Panel

requires, pursuant to paragraph 4(i) of the Policy, that the domain name at

issue be transferred to the Complainant.

M. Scott Donahey

Presiding Panelist

John Terry

Panelist

DISSENTING OPINION

Chernow Communications, Inc. v. Jonathan D. Kimball

Case No. D2000-0119

I respectfully dissent from the decision of the majority of this panel.

The domain name registered by Respondent, "ccom.com," is plainly not identical

to Complainant's trademark for long distance telephone services, "C-COM," and

under the circumstances presented in this proceeding I would not find it confusingly

similar to Complainant's trademark.

A domain name that incorporates an unhyphenated variant of a hyphenated trademark

is not identical to the trademark. Draw-Tite, Inc. v. Plattsburgh Spring

Inc., ICANN Case No. D2000-0017 (WIPO Mar.

14, 2000) (holding that "drawtite.com" is confusingly similar but not identical

to trademarks "DRAW TITE" and "DRAW-TITE"); see also Pep Boys Manny, Moe

& Jack of Cal. v. E-Commerce Today, Ltd., ICANN Case No. AF-0145 (DeC

May 3, 2000) (holding that "pep-boys.com" is confusingly similar but not identical

to trademark "PEP BOYS"); Gateway, Inc. v. Pixelera, Inc., ICANN Case

No. D2000-0109 (WIPO Apr. 6, 2000) (holding that "gate-way.com" is confusingly

similar but not identical to trademarks "GATEWAY" and "GATEWAY.COM"); A.P.

Møller v. Web Society, ICANN Case No. D2000-0135

(WIPO Apr. 15, 2000) (holding that "maersksealand.com" and "maersk-sealand.com"

are confusingly similar but not identical to trademarks "MAERSK" and "SEA-LAND");

Durham Herald Co. v. Erwin S., ICANN Case No. FA94312 (NAF Apr. 14, 2000)

(holding that "heraldsun.com" is confusingly similar to trademark "The Herald-Sun,"

without addressing issue of identicality); Creo Products Inc. v. Website

in Development, ICANN Case No. D2000-0160

(WIPO May 1, 2000) (holding that "creo-scitex.com" is confusingly similar to

trademark "CREOSCITEX," without addressing issue of identicality).

It is true that there have been UDRP decisions that reach a contrary result,

including the decisions cited by the majority. In most of those cases, however,

identicality has been at most an alternative basis for the panel's holding.

The panels in five cases found both identicality and confusing similarity. See

Channel Tunnel Group Ltd. v. Powell, ICANN Case

No. D2000-0038 (WIPO Mar. 17, 2000); SeekAmerica Networks, Inc. v. Masood,

ICANN Case No. D2000-0131 (WIPO Apr. 13, 2000);

Colgate-Palmolive Co. v. Kasinga, ICANN Case No. FA94203 (NAF Feb. 28,

2000); Marriott International, Inc. v. Café au lait, ICANN Case No. FA93670

(NAF Feb. 9, 2000); and NFL Properties, Inc. v. Rahe, ICANN Case

No. D2000-0128 (WIPO Apr. 26, 2000). In Hewlett-Packard Co. v. Cupcake

City, ICANN Case No. FA93562 (NAF Mar. 31, 2000), the respondent's domain

name was spelled differently than the complainant's trademark, and the panel

found it "phonetically identical to and confusingly similar to" the trademark.

In Slep-Tone Entertainment Corp. v. Sound Choice Disk Jockeys, Inc.,

ICANN Case No. FA93636 (NAF Mar. 13, 2000), the panel found the respondent's

domain name "virtually identical" to the complainant's trademark based upon

a likelihood of confusion. In only two of the cases cited by the majority, InfoSpace.com,

Inc. v. Ofer, ICANN Case No. D2000-0075 (WIPO

Apr. 4, 2000), and EFG Bank European Financial Group SA v. Jacob Foundation,

ICANN Case No. D2000-0036 (WIPO Mar. 22, 2000),

did the panels find identicality without also finding confusing similarity.

It seems obvious to me that there cannot be many different domain names that

are all identical to the same trademark. If Complainant's trademark is identical

to a domain name, that domain name is "c.com," or perhaps "c-com.net" or "c-com.com."

But it is not simultaneously identical to all three of these, and it certainly

cannot be identical to them and also to "c-com.org," "ccom.com," "ccom.net,"

"c-c-o-m.com," "c--com.com," and numerous other permutations of these characters

and top-level domains.

Furthermore, I see no need to interpret the identicality requirement so liberally,

since the UDRP applies to domain names that are confusingly similar as well

as those that are identical. As noted in Shirmax Retail Ltd. v. CES Marketing

Group Inc., ICANN Case No. AF-0104 (DeC Mar. 20, 2000), identicality merely

relieves the trademark owner of the need to prove that confusion is likely.

In particular, a domain name that merely adds or subtracts a hyphen from a trademark

is almost certain to be found confusingly similar to that trademark, but it

clearly is not identical to the trademark.

The domain name and trademark at issue in this case are so similar that confusion

seems almost inevitable. Yet Complainant has not even alleged that Respondent's

domain name is confusingly similar to its trademark. Complainant's only allegation

on the issue of identicality or confusing similarity is as follows: "Kimball's

domain name, 'ccom.com,' is identical to Chernow's registered trademark CCOM."

Of course, Complainant's trademark is "C-COM," not "CCOM," although the discrepancy

appears more likely to be a typographical error than a deliberate attempt to

mislead the panel. Nonetheless, the fact remains that Complainant has alleged

identicality but has not alleged confusing similarity.

Complainant may have elected not to pursue a claim of confusing similarity

for strategic reasons, or (perhaps more likely) due to oversight. Had Complainant

chosen to raise the issue of confusing similarity, Respondent might well have

been able to present a plausible counterargument. Identicality and confusing

similarity are two distinct theories -- confusing similarity is not merely a

lesser included version of identicality, and alleging one of these does not

automatically allege the other. In any event, Complainant was represented in

this proceeding by capable legal counsel, and I see no need to supplement the

allegations that Complainant actually made with others that Complainant chose

not to include, or to afford Complainant a second opportunity to allege what

frankly is an obvious component of a prima facie case under the UDRP.

I would hold that Complainant failed to satisfy the first element of the UDRP,

identicality or confusing similarity.

With regard to the second element, I agree with the majority's conclusion that

Complainant has met its burden of proving that Respondent has no rights or legitimate

interests in respect of the domain name at issue.

Finally, with regard to the third element, I would find that Complainant has

failed to meet its burden of proving that Respondent has registered and is using

the domain name in bad faith.

The majority finds bad faith registration and use based upon the totality of

circumstances in this case, even though Respondent's conduct admittedly does

not satisfy any of the illustrations set forth in Paragraph 4(b) of the Policy.

This case bears so little resemblance to Telstra Corp. v. Nuclear Marshmallows,

ICANN Case No. D2000-0003 (WIPO Feb. 18, 2000),

cited by the majority to support this proposition, that a comparison of the

two cases would be pointless. The only fact properly before this panel that

is even relevant to the question of bad faith registration (apart from Respondent's

statement that he was unaware of Complainant's trademark when he registered

the domain name) is that Respondent registered the domain name "ccom.com" on

August 14, 1997, nearly seven months after Complainant obtained its trademark

registration for "C-COM." The majority notes that the domain name at issue here

resolves to a web site that suggests that the name may be for sale, and that

Respondent has failed to make a bona fide use of the domain name for almost

three years. However, neither of these facts is properly before the panel, and

indeed neither fact has even been alleged by Complainant.

The existence of a prior trademark registration does not automatically render

a domain name registration in bad faith. In Finter Bank Zurich v. Olivieri,

ICANN Case No. D2000-0091 (WIPO Mar. 23, 2000),

cited by the majority, the respondent had offered two domain names for sale

to the complainant only twelve days after he registered them. In Barney's,

Inc. v. BNY Bulletin Board, ICANN Case No. D2000-0059

(WIPO Apr. 2, 2000), the other decision cited by the majority on this point,

the panel inferred bad faith registration of the respondent's domain name from

the fame and presumably the distinctiveness of the complainant's mark, not merely

from the fact that the trademark registration predated the domain name registration.

To the extent that Mondich v. Brown, ICANN Case

No. D2000-0004 (WIPO Feb. 16, 2000), holds that bad faith registration need

not be proved if a domain name owner fails to make "bona fide use" of the name

for two years, I believe the decision is contrary to the clear language of the

UDRP, which requires that both registration and use be in bad faith. See, e.g.,

World Wrestling Federation Entertainment, Inc. v. Bosman, ICANN Case

No. D1999-0001 (WIPO Jan. 14, 2000) (inferring bad faith registration from

registrant's attempt to sell domain name to complainant three days after registering

it). Passively holding or "parking" a domain name for an extended period may

well be relevant to bad faith use, but it does nothing to show that the

name was originally registered in bad faith. In Beverages & More, Inc.

v. Glenn Sobel Mgt., ICANN Case No. AF-0092 (DeC Mar. 9, 2000), the panel

considered the respondent's "admissions, evasive tactics, gratuitously vituperative

and wholly unsupported allegations about the purported motives and actions of

opposing counsel, as well as the other facts and circumstances adduced by Claimant"

in concluding that the respondent had registered its domain name in bad faith.

Similarly, in Telstra Corp. v. Nuclear Marshmallows, the panel found

bad faith registration based in part upon the respondent's deliberate attempts

to conceal its identity and the fact that the respondent must have known at

the time that it registered the domain name that it could not possibly make

legitimate use of the name.

I do not believe there is a sufficient basis in this record to support a finding

that Respondent has registered or is using the domain name in bad faith.

Since I believe that Complainant has failed to meet the first and third requirements

set forth in the UDRP, I would deny its request for relief. I therefore respectfully

dissent from the decision reached by my fellow panelists.

David E. Sorkin

Panelist

Dated: May 18, 2000

1. It is curious that, in the middle of panel deliberations,

the Respondent (or his agent or assignee) changed the link to the web site,

so that www.ccom.com now resolves to a site offering computer products for sale

copyrighted by vstore.com. Such changes in conduct following the onset of proceedings

cannot be allowed to affect their outcome. See, e.g., Ingersoll-Rand v. Frank

Gully, d/b/a Advcomren, ICANN Case No. D2000-0021;

Ventura Foods LLC v. Pathi, ICANN Case No. AF-0136.

2. For example, the first case cited by the dissent, Draw-Tite,

Inc. v. Plattsburgh Spring Inc., ICANN Case No.

D2000-0017 is cited for its holding "that ‘drawtite.com’ is confusingly

similar but not identical to trademarks ‘DRAW TITE’ and ‘DRAW-TITE.’" However

it is instructive to read the Panel’s language on this point:

While the domain name DRAWTITE.COM is not identical to Complainant’s registered

trademarks DRAW TITE and DRAW-TITE and Design, this Panel finds that the subject

domain name is confusingly similar to the Complainant’s registered trademarks.

Addition or deletion of a hyphen or space between the two words of the mark

makes an insubstantial difference to the appearance, pronunciation and meaning

of the terms.

Emphasis added.