NIHC, Inc.; Nordstrom, Inc. v. Hatching Ideas, LLC/Ryan M. Gordon

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Nordstrom, Inc. and NIHC, Inc. v. Hatching Ideas, LLC

Case No. D2001-0418

1. The Parties

Complainants are Nordstrom, Inc., a corporation with a place of business in

Seattle, Washington, U.S.A., and NIHC, Inc., a corporation with a place of business

in Portland, Oregon, U.S.A. They are referred to collectively in this decision

as complainants.

Respondent is Hatching Ideas, LLC, a corporation with a place of business in

Lawrence, Kansas, U.S.A. Complainant avers that co-respondents are Michael D.

Gordon, "a member of Hatching Ideas, LLC", and Ryan Gordon, "a

member of Hatching Ideas, LLC". All three are referred to here collectively

as "respondents".

2. Domain Names and Registrar

The domain names in issue are:

<norfstrom.com>

<18nordstrom.com>

<18nordstrom.net>

<1-8nordstrom.com>

<1-8nordstrom.net>

<1-8-nordstrom.com>

<1-8-nordstrom.net>

<18norfstrom.com>

<1-8norfstrom.com>

<1-8-norfstrom.com>

The registrar is Tucows, Inc., 96 Mowat Avenue, Toronto, Ontario M6K 3M1, Canada

(Tucows).

3. Procedural History

The WIPO Arbitration and Mediation Center (the Center) received the complaint

via email on March 28, 2001, and in hard copy form on April 2, 2001. The Center

verified that the complaint satisfies the formal requirements of the ICANN Uniform

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

Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform

Domain Name Dispute Resolution Policy (the Supplemental Rules). Complainants

made the required payment to the Center. The formal date of the commencement

of this administrative proceeding is April 4, 2001.

On March 30, 2001, the Center transmitted via email to Tucows a request for

registrar verification in connection with this case. On April 3, 2001, Tucows

transmitted via email to the Center Register’s confirmation that (1) "Respondent"

is the current registrant of the domain names in issue, (2) the Policy applies

to the domain names, (3) Michael Gordon is the administrative and billing contact,

and Ryan Gordon is the technical contact, and (4) the domain names are "currently

on hold within our system. ... to ensure that no changes of ownership or Registrar

occur for the duration of the dispute."

On April 4, 2001, the Center transmitted to respondents Notification of Complaint

and Commencement of the Administrative Proceeding, together with a copy of the

Complaint, via post/courier and email. The Center advised, inter alia,

that the response was due by April 23, 2001, and pointed out the response should

be in accordance with requirements set out in the Rules and the Supplemental

Rules.

On April 24, 2001, the Center received respondents’ response via email, and

on April 24, 2001, in hard copy.

On May 1, 2001, the Center received complainants’ "Clarification/Reply"

via email, and on May 2, 2001, in hard copy. This document was accompanied by

an email message dated April 30, 2001, purporting to explain the need for the

"reply brief", and advising that a copy had been sent to "Respondents

... so that they may provide their own reply, if desired."

On May 1, 2001, Ryan Gordon requested advice from the Center via email as to

whether the "clarification" had been accepted, and the "privilege

to respond."

On May 2, 2001, the Center advised the parties via email that it is in the

Administrative Panel’s sole discretion as to whether supplemental information

will be considered.

On May 15, 2001, the Center received "Response to ‘Clarification’ By Complainant".

On July 31, 2001, the Center advised the parties that the Administrative Panel

had been appointed, comprising Sally Abel, Richard Page, and David Plant (Presiding

Panelist). The Center advised that absent exceptional circumstances, the panel

is required to forward its decision to the Center by August 14, 2001. On August

12, 2001, the presiding panelist advised the Center by email that, due to scheduling

conflicts, the draft decision would not be prepared for at least three weeks,

and inquiring as to a 30 day extension of time.

4. Factual Background; Parties’ Contentions

a. The Trademark

The complaint is based on trademarks and service marks as averred by complainants

as follows:

NORDSTROM has been used since 1901 "to promote retail store services featuring

shoes, clothing, accessories, footwear and leather goods. Over the years, the

goods and services offered under the NORDSTROM mark have continuously grown."

The NORDSTOM service mark is the subject of 1984 U.S. Trademark Registration

No. 1,281,000 for retail clothing store services. (Annex 5 to the complaint;

first use of the mark in commerce is stated to have been in 1972.)

The NORDSTROM trademark is the subject of 1984 U.S. Trademark Registration

No. 1,280,785 for men’s, women’s and children’s clothing and footwear. (Annex

5; first use in commerce is stated to have been in 1972.)

The NORDSTROM service mark is the subject of an August 22, 2000 U.S. Trademark

Registration No. 2,378,940 for credit card services. (Annex 5; first use in

commerce is stated to have been in 1967.)

"Complainant" is using the NORDSTROM trademark and service mark in

connection with a variety of other goods and services.

NORDSTROM 2ND NATURE, NORDSTROM THE CATALOG, NORDSTROM BEST, and NORDSTROM

RACK are the subjects of additional U.S. trademark registrations.

The NORDSTROM trademark is registered in other countries for various goods

and services.

"NORDSTROM, NORDSTROM.COM and other related trademarks and service marks

owned and used by [complainants] are recognized throughout the world as indicators

of a source of such goods and services."

Complainants aver the "NORDSTROM brand" is famous to consumers of

clothing, accessories, leather goods and shoes throughout the U.S. and in Europe.

After more than 100 years, more than 140 stores "in the NORDSTROM retail

chain" extend in to 24 U.S. states and Europe. Also, complainants offer

and sell clothing, etc. to individuals in retail locations "and throughout

the rest of the world" through their online retail store located at <www.nordstrom.com>.

"Consumers in the traditional marketplace and online consumer worldwide

recognize the NORDSTROM brand as indicative of quality products and exceptional

service."

b. The Complaint Re Respondents’ Activities

Complainants contend that the domain names in issue are identical or substantially

identical to the NORDSTROM and NORDSTROM.COM trademarks and service marks. Complainants

point out that in six instances, the domain names incorporate the term "Nordstrom"

preceded by the number 18, sometimes with and sometimes without an hyphen. Complainants

aver none of the numbers has any distinctive value. Thus, these six "Nordstrom"

domain names should be regarded as identical to the NORDSTROM and NORDSTROM.COM

marks.

Complainants contend the remaining four domain names are merely misspellings

of complainants’ marks -- replacing "D" with "F". Complainants

contend that, as the two letters are adjacent on a keyboard, "it appears

that the latter domain names are designed to take advantage of typographical

errors when Internet users attempt to access Complainant’s NORDSTROM.COM web

site."

Thus, complainants conclude that "all of the subject domain names are

either identical or confusingly similar to Complainant’s [sic] registered marks."

In urging that respondents have no rights or legitimate interests in the domain

names in issue, complainants first refer to their letter of November 9, 2000,

to "Respondent",[1] advising that

the six domain names then registered infringed complainants’ marks and demanding

that respondents either cancel the domain names or assign them to "Complainant"

[2]. Complainants aver that "Respondent"

never replied (Annex 6, Martin declaration).

Next, complainants aver that on December 1, 2000, Martin emailed a reminder

to "Respondent" and requested a reply to the November 9 letter, but

"Respondent never replied" (Annex 6, Martin declaration).

Complainants aver that Martin then called Ryan Gordon on December 8, 2000.

Ryan Gordon allegedly stated he and Michael Gordon were not interested in using

any of the domain names and asked Martin to call him back the following week

(Annex 6, Martin declaration).

Complainants aver that, on December 15, 2000, Martin called Ryan Gordon, who

for the first time stated he had decided to use the domain names, "but

would not tell Complainant how" (Annex 6, Martin Declaration). Complainants

aver that to date respondents still have not explained how they will use the

ten domain names.

Complainants aver that, on December 15, 2000, complainants’ attorneys sent

a letter to "Respondent" (Annex 7, letter to Messrs. Michael Gordon

and Ryan Gordon), charging violation of the U.S. Anticybersquatting Consumer

Protection Act and demanding that respondents transfer the six domain names

to complainants [3].

Complainants aver that, on January 6, 2001, Michael Gordon transmitted an email

to complainant’s attorney (Annex 8), asserting that respondents were not using

and did not intend to use any of the six domain names, and that Michael Gordon

had reserved instead the four "norfstrom" domain names [4].

Complainants argue that Michael Gordon apparently asserts he can use the ten

domain names because "Nordstrom, Inc. is ‘not the only company doing business

under the surname Nordstrom.’" Complainants aver:

Michael Gordon does not assert he or his company is commonly known as "NORDSTROM"

or "NORFSTROM".

He does not assert any one else associated with his company has the surname

"Nordstrom" or "Norfstrom".

Michael Gordon provides no evidence he has ever used the domain names (he admits

the contrary) and is unwilling to provide any evidence as to preparation for

use of the domain names.

It should be presumed "Respondent" knew of complainants’ "famous

NORDSTROM marks," and respondents’ sole motivation is to attract, for financial

gain, unwitting Internet users who type or mistype complainants’ "famous

trademark or domain name."

Complainants aver that respondents’ use of the domain names is likely to attract

Internet users to web sites associated with the domain name by creating a likelihood

of confusion between the domain names and complainants’ "registered trademarks,

service marks and/or domain name." Also, respondents’ use of the domain

names is likely to confuse Internet users as to the source of information on

web sites related to the domain names, and "suggests that the subject domain

names are sponsored by, affiliated with, or endorsed by Complainant." Complainants

argue that because their marks are famous and registered around the world, "it

should be presumed that such actions, such confusion, and such suggestions have

been taken and/or created by Respondents intentionally and with knowledge."

Complainants request that the panel decide that each of the ten domain names

be transferred to "the Complainant".

The complaint concludes with the requisite certification as to completeness

and accuracy and is signed by complainants’ counsel.

c. The Response

At least inferentially from the information in paragraphs 4 - 6 of the response,

respondents agree that Michael Gordon and Ryan Gordon are "co-respondents".

At the outset, "Respondent" requests that the panel find that complainants

attempted to reverse domain hijack "the disputed domains" on December

8, 2000, and again on December 17, 2000. Also, respondents request that the

panel deny the remedies requested by complainants.

Respondents assert that Ms. Martin did not accurately recount the conversations

of December 8, 2000 and December 15, 2000, "in order to cover up her actions

of December 8, 2000, and the subsequent actions of Network Solutions, Inc on

December 17, 2000." Respondents aver that, on December 8, 2000, Michael

Gordon received a "carbon copy" of an email from Ms. Martin to Ryan

Gordon. (A copy of the email is purportedly at Annex 3 to the response.) Respondents

note that the December 8 email is not referred to in the complaint or the

Martin declaration. The December 8 email from Martin to Ryan Gordon states:

"Ryan:

"Pursuant to our conversation today, we understand you do not have plans

to use the 18nordstrom.com/net, 1-8nordstrom.com/net, 1-8-nordstrom.com/net

domain names registered to Hatching Ideas LLC. Per our discussion, I have submitted

requests to change the Registrar and Registrant regarding these names. You should

be receiving emails to confirm the transfers anytime. Please follow Network

Solutions’ instructions for responding and copy me on your responses. I will

call you Monday morning per your request to discuss this matter further. Thank

you for you cooperation.

"Jennifer Martin"

Respondents submit a declaration by Ryan Gordon (Annex 4 to the response).

In his declaration, Ryan Gordon states with regard to the December 8 telephone

conversation:

"I expressed to Ms. Martin that she or the company Ms. Martin represented

at the time ‘had nothing to worry about’ because we did not have plans on using

the domain names in ways that would infringe on the rights of the company she

represents. ... I told her that our company was not interested in compensation

for the domain names, and that I would not transfer the names. I was in a meeting

at the time of the call, and told her if she wished to discuss matters further,

she would have to call back the following week."

Respondents assert that Ms. Martin created the December 8 "carbon copy"

letter "with the intentions of reverse hijacking the disputed domains from

the Respondent."

Respondents assert that Michael Gordon called Ryan Gordon to inquire about

the December 8 email from Ms. Martin. In his declaration, Ryan Gordon states,

inter alia:

"This letter [i.e. the Martin December 8 email] misconstrues my conversation

with Ms. Martin and implies that I agreed to transfer the domains to her. ...

In my discussion with Michael Gordon I told him of my conversation with Ms.

Martin and that I did not agree to transfer any domain names. I also

warned him that any transfer requests regarding the domains would arrive

in his email box. At this point we were very alarmed to the possibility

that Ms. Martin might be trying to have the domains transferred inadvertently

by Michael Gordon or someone else that had merely read her carbon copy. I emphatically

emphasized in this conversation, that I did not authorize any transfer of domains

to Ms. Martin. From this point forward we regarded this situation as an attempt

of reverse domain name hijacking and agreed to keep each other informed

of all correspondence with Ms. Martin." (Emphasis in original declaration.)

Respondents aver that on December 17, 2000, "Dr. Michael D. Gordon received

a Change of Registrar Application (‘CRA’) for [the six domain names] in an e-mail

from Network Solutions, Inc." (Annex 5). On the same day, Michael Gordon

responded by return email that he did not agree to the Change or Registrar Application

(Annex 6). Respondents note that this "denial of the Change of Registrar"

is not mentioned in the complaint.

Respondents assert the document dated January 16, 2001 (Annex 2 to the response)

is in fact the letter of November 9, 2000, referred in the Martin declaration.

Respondents contend the date on the letter was changed "to cover the reverse

hijacking events" of December 8 and 17, 2000.

Respondents contend that complainants’ counsel, Mr. Costanza, never refuted

the charge in Michael Gordon’s January 6, 2001, email that:

" ... your client tried to ‘steal’ our domain. ... I don’t know what else

to call it when your client attempted to transfer the ownership of our domain

to them through ICANN -- without our permission!"

Accordingly, respondents request that the panel find that complainants attempted

reverse domain name hijacking.

With regard to the three elements of Policy Paragraph 4(a), respondents contend

that the disputed domains are "not identical or confusingly similar to

the trademark or services that the Complainant has rights" (sic.) Respondents

do not object to complainants’ claims as to the goods and services with respect

to which they have trademark rights. Respondents contend that NORDSTROM is not

a famous mark, the first U.S. registration was in 1947 to Rockwell Manufacturing,

and Nordstrom is a common surname used in all kinds of businesses (citing Michael

Gordon’s January 6, 2001, email concerning uses of Nordstrom).

Respondents contend that Annex 9 to the response lists hundred of businesses

and individuals doing business under the common surname Nordstrom, and urges

that the surname Nordstrom is not unique to complainants. Respondents contend

that their Annex 10 contains examples of uses of Nordstrom around the world.

Respondents submit Annex 11 lists domain names that include "Nordstrom"

"promoting many types of businesses."

Respondents assert they are "not sure how the Complainant legally found

out the Respondent’s relationship between the disputed domains and the toll-free

number, 1-866-737-8766. This number rings into one of our phone lines, a phone

that is turned off." Respondents question the basis for complainants’ assertion

(counsel’s December 21, 2000, letter to the Gordons (Annex 8 to response))

that they should have rights to the number.

Respondents assert they are "a creative strategic marketing company that

has developed new concepts in the use of alphanumeric telephone numbers and

word numbers." They contend that have been reluctant to disclose information

because of the "impact this might have on the patentability of these new

concepts." Respondents aver that complainants never responded to the January

6, 2001, request for a "non-compete/non-disclosure agreement" (Annex

7 to the response).

Respondents describe their purported discovery of creating multiple-letter

phone words, e.g., 1-800flower. Respondents assert they have 1-Tonometers installed

in one of their companies, RotaSystems -- a company created by respondents to

market "several of its patented inventions."

Respondents contend that, because complainants sent their first letter on November 7, 2000,

only seven days after respondents registered <1-8Nordstrom.com>, "this

prevented our construction of the 1-8NorthPolel.com [sic] website." Respondents

describe their "wishes" for creating a North Pole website. Respondents

assert that toll-free numbers are more accessible than the public is generally

aware of, toll-free numbers give access to more than 300 million potential customers

in North America, and domain names give access to billions of potential customers

-- free. Respondents assert that eventually 1-8NorthPole will be accessible

toll-free to anyone in the world. Respondents assert that:

"... Respondent felt that regions of the world might be attracted to the

‘North Pole’ that did not understand the concept of Santa Claus. So the Respondent

proposed a fictional person with the characteristics of an elf, Good Samaritan,

angel and everyone’s best friend. The respondent decided on the name, Nordstrom."

Respondents contend the <1-8Nordstrom.com> domain name was registered

for a use that does not conflict with complainants’ trademark rights, asserting:

"The reputed domains will be used as the not-for-profit division of 1-8NorthPole.

The reputed domains will be used as a child hot line. The Respondent wants to

develop 1-8Nordstrom as a safe, educational, and fun place where children can

interact with Santa and his helpers."

Respondents assert they were limited in the names they could associate with

"866". They contend:

"Respondent wanted the name to be believable, as the character lived at

the ‘North Pole’. To name a few of the Respondent’s ideas the name Tom, Tony,

Toni, Monty, Morgan, Norm and Norman were considered. However, all of these

names were too short. ... The Respondent felt most of the possible surnames

sounded too Anglo-Saxon or Latin.

"Therefore, Respondent started thinking about surnames for the ‘special

person’ that helped Santa Claus. Reviewing books of surnames the Respondent

found the name, Nordstrom. It was listed as being Swedish and meant ‘northern

stream’. The Respondent felt that this was a perfect name. Nordstrom fit the

Respondent’s requirements for a name."

Respondents elaborate on the etymological reasons why Nordstrom is the perfect

name. They contend also that:

"During the discovery process of the 1-8Nordstrom project, a second concept

came forward, 1-8Norfstrom. ... The Respondent thought that the ‘f’ might ‘work’

with the concept of elf or dwarf."

Respondents contend that, in light of the odds, if they had designed the domain

name to trick customers who accidentally use the wrong key, it would "make

more sense for the Respondent to have registered Mordstrom and change the first

letter instead of the fourth letter."

Respondents assert they have not registered any other variations of Nordstrom.

They assert Norfstrom is a completely unique name, found nowhere on the Internet

except in connection with this proceeding (Annex 15 to the response).

Respondents contend that the three "18" Norfstrom domain names are "completely

unique and should be allowed by the Administrative Panel." Respondents

assert that complainants have not proved all of the requirements of Policy,

Paragraph 4(a) and request the panel to deny the remedies requested by complainants.

The response concludes with R. Gordon’s certification, on behalf of all Respondents,

as to completeness and accuracy.

d. Clarification/Reply and Response to "Clarification" By Complainant

The panel did not request either the Clarification/Reply or the Response to

"Clarification" By Complainant. Rule, Paragraph 12. The panel decides

in its discretion not to take into account any statement in either document.

5. Discussion and Findings

Paragraph 4(a) of the Policy directs that complainants must prove, with respect

to each domain name in issue, each of the following:

(i) The domain name is identical or confusingly similar to a mark in which

complainants have rights, and

(ii) Respondents have 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.

a. Identity or Confusing Similarity

Complainants have the burden of proving this element and each of the other

two elements of Paragraph 4(a) of the Policy.

Abundant authority supports the conclusion that each domain name in issue is

identical or confusingly similar to the trademark and service mark NORDSTROM.

The addition of prefixes -- such as meaningless numbers, and the substitution

of one letter for another -- especially when they are adjacent on a keyboard,

do not detract from "identity" as that term has been construed in

connection with Policy Paragraph 4(a)(i). E.g. CBS Broadcasting v. Sale’s,

WIPO D2000-0255, Yahoo! Inc. v. David

Ashby, WIPO D2000-0241, PACCAR

v. Enyart Associates, WIPO D2000-0289.

Even if there were no such identity, it is apparent that each domain name in

issue is confusingly similar to the trademark and service mark NORDSTROM.

It is beyond dispute that, under United States law, complainants have rights

in the trademark and service mark NORDSTROM with respect to clothing and related

goods and services. The trademark and service mark are the subject of registrations

on the Principal Register of the United States Patent and Trademark Office issued

16 years before respondents registered the domain names in issue.

In light of the foregoing, on this record, the Panel finds that complainants

have carried their burden of proof under Paragraph 4(a)(i) as to the domain

names in issue.

b. Rights or Legitimate Interests

Complainants’ prior use and registrations of the NORDSTROM marks do not alone

preclude respondents from having any rights or legitimate interests in the domain

names in issue. The panel must consider the rights and interests respondents

claim and their purpose in asserting such rights and interests. Policy Paragraph

4(c) provides illustrative circumstances which may demonstrate respondents’

rights and interests in one or more of the domain names.

Here, respondents have not used any of the ten domain names as an address for

an active web site. There is no evidence that respondents have prepared for

any such use. Indeed, complainants notified respondents of this dispute only

nine days after the first three domain names were registered, only four days

after the next three domain names were registered, and about two months before

the four "f" domain names were registered (Annexes 1 and 6 to the

complaint). None of the respondents asserts that any respondent has been commonly

known by one or more of the domain names in dispute. That Nordstrom is a Swedish

surname or has been used by other business entities do not avail respondents

in this regard.

On this record, respondents’ stated wish to create a web site, whether fanciful

or not, does not endow them with any rights or legitimate interests in any of

the domain names, each of which is identical or confusingly similar to the NORDSTROM

marks.

The Panel finds that complainants have carried their burden of proof with regard

to Paragraph 4(a)(ii) as to the domain names in issue.

c. Registration and Use in Bad Faith

In appropriate circumstances, bad faith registration and use of a contested

domain name can be inferred from circumstantial evidence. Both registration

in bad faith and use in bad faith must be proved by complainants.

Paragraph 4(b) of the Policy sets out four illustrative circumstances of "evidence

of the registration and use of a domain name in bad faith." None of the

four illustrative circumstances fully fits the facts here. However, from the

averments and contentions of the parties here, it is fair to infer bad faith

with regard to both registration and "use".

Respondents’ elaborate explanation of how they came to select "Nordstrom"

and its variants for the ten domain names is not supported by any contemporaneous

record. Nor is it supported by the Ryan Gordon declaration. That declaration

refers only to respondents’ quarrel with complainants’ as to the facts concerning

communications between the parties in December 2000. It is difficult to imagine

a good faith reason for respondents’ selection of six "Nordstrom"

domain names before notice from complaints or for respondents’ selection of

four additional "Norfstrom" domain names after notice and discussion

of the dispute. It simply does not ring true that "Nordstrom" or "Norfstrom",

with or without prefixes, are more apt as addresses for respondents’ proposed

North Pole site than "NorthPole" itself. Nor is there any justification

for registering ten variations of the term NORDSTROM. Respondents’ registration

of the ten domain names in issue smacks of bad faith conduct.

Also, respondents’ wish list as to their future use of one or more web sites

does not save them from a finding of bad faith use. Non-use under the circumstances

fantasized here constitutes bad faith use. If the Policy were interpreted otherwise,

any one could register dozens of variants of trademarks and service marks and

warehouse them with impunity -- even if all other elements of Policy Paragraph

4(a) were present. Such a topsy-turvy result cannot be endorsed.

Accordingly, the Panel finds that, under Paragraph 4(a)(iii), respondents have

registered and used each of the ten domain names in issue in bad faith.

d. Reverse Domain Name Hijacking

Respondents’ intense focus on the communications between the parties in December 2000

and January 2001 does not support a case of reverse domain name hijacking. The

panel has found that respondents have no rights or legitimate interests in the

ten domain names in issue. At the same time, the panel has found that complainants

have rights in the trademark and service mark NORDSTROM. There can be no reverse

domain name hijacking under these circumstances.

6. Decision

In light of the findings by the panel, the panel decides that complainants

have met their burden of proof with respect to each of the three elements of

Policy Paragraph 4(a).

Accordingly, the panel requires that the registrations of each of the ten domain

names in issue be transferred to complainants.

In addition, the panel denies respondents’ request that the panel find complainants

have engaged in reverse domain name hijacking.

David W. Plant

Presiding Panelist

Sally M. Abel

Panelist

Richard W. Page

Panelist

Dated: September 10, 2001

Footnotes:

1. Complainants state that a copy of the

November 9, 2000 letter is attached at Annex 6. However, at Annex 6, a two-page

declaration dated March 19, 2001 and signed by Jennifer Martin appears, together

with a copy of a letter dated January 16, 2001, from Ms. Martin to Mr. Michael

Gordon. This discrepancy is addressed infra.

2. The six domain names are: <1-8-nordstrom.com>,

<1-8-nordstrom.net>, <1-8nordstorm.com>, <1-8nordstrom.net>,<18nordstrom.com>,

and <18nordstrom.net> (Annex 1).

3. In the December 21, 2000, letter, counsel

noted that each of the six domain names "translates to the toll-free telephone

number 1-866-737-8766." Asserting this constituted dilution of the famous

NORDSTROM mark, counsel demanded also that the telephone number be transferred

to complainants.

4. Michael Gordon’s email commences by requesting

that complainants’ counsel "sign a non-compete/non-disclosure agreement

before I discuss our projects." After expressing his shock at complainants’

charges, Michael Gordon stated "to resolve this problem we are willing

to use the name, ‘Norfstrom’ in our project." Also, Michael Gordon stated

that various searches yielded no uses of "Norfstrom", and reported

the results of several searches on the name "Nordstrom" -- including

"285 registrations with ICANN that include the name Nordstrom." Michael

Gordon concluded that, as a result of their research, "it was our opinion

that our application of Nordstrom was acceptable and legal."

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