Kejr, Inc., d/b/a Geoprobe Systems v. Art's Manufacturing & Supply, Inc.

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kejr, Inc., d/b/a Geoprobe Systems v. Art’s Manufacturing & Supply, Inc.

Case No. D2001-1348

1. The Parties

Complainant is Kejr, Inc., d/b/a Geoprobe Systems, a corporation organized

under the laws of the State of Kansas, U.S.A., with a place of business in Salina,

Kansas, U.S.A. (Kejr).

Respondent is Art’s Manufacturing & Supply Inc., a corporation with a place

of business in American Falls, Idaho, U.S.A. (Art’s).

2. Domain Names and Registrar

The domain names in issue are:

<geoprobesystem.com>, and

<geoprobesystem.net>.

The registrar is Network Solutions, Inc. (NSI).

3. Procedural History

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

via email on November 12, 2001, and in hard copy form on November 15, 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).

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

of this administrative proceeding is November 29, 2001.

On November 21, 2001, the Center transmitted via email to NSI a request for

registrar verification in connection with this case. On November 26, 2001,

NSI transmitted via email to the Center NSI’s confirmation that (1) Art’s is

the current registrant of the domain names in issue, (2) NSI Service Agreement

Version 5 is in effect, and (3) the two domain name registrations are in "active

status."

On November 29, 2001, the Center transmitted to Art’s Notification of Complaint

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

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

the Response was due by December 19, 2001, and pointed out the Response

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

Rules.

On December 20, 2001, the Center received Art’s Response via email, and on

December 7, 2001, in hard copy.

On January 9, 2002, the Center advised the parties that the Administrative

Panel had been appointed, consisting of David Plant. The Center advised that

absent exceptional circumstances, the panel is required to forward its decision

to the Center by January 3, 2002.

4. Factual Background; Parties’ Contentions

a. The Marks

The Complaint is based on a registered trademark and a registered service mark

as averred by Kejr as follows:

Kejr has used "Geoprobe Systems" since at least as early as 1987, for retail

store services specializing in machines and equipment for sampling, testing

and analyzing, maintaining and repairing such equipment and for educational

services. U.S. Service Mark Registration 2,218,102 issued January 19, 1999,

for such services, based on first use in commerce in 1987 (Annex 3 to the Complaint).

The application for this registration was filed November 29, 1996.

Kejr has used "Geoprobe" since at least as early as February 1988, in connection

with "direct push and soil sampling machines." U.S. Trademark Registration 1,601,914

issued June 19, 1990, for "Machine for driving sampling tubes into

soil, and accessories therefor ...," based on first use in commerce February 1988

(Annex 4). The application for this registration was filed November 13, 1989.

Kejr avers it is a leader in "the direct push, soil sampling and drilling industries."

Kejr says it enjoys substantial goodwill and a valuable reputation in connection

with its marks. Kejr avers it has expended and continues to expend "a significant

amount of time, money, resources and effort to advertise and promote its goods

and services under" the two marks, and to police "misuse of the marks."

Kejr avers it owns the domain names <geoprobe.com> and <geoprobesystems.com>,

the latter having been registered on July 8, 1996, and the former,

on March 19, 2001. Kejr states it has been operating web sites under

both domain names, with the web site under <geoprobesystems.com> having

been operated continuously since at least as early as July 8, 1996.

Printouts regarding these Kejr registrations appear at Annex 5.

b. The Complaint Re Respondents’ Activities

(1) Background

Kejr contends that (a) the domain names in issue are identical or confusingly

similar to a Kejr trademark or service mark, (b) Art’s has no rights or legitimate

interests in respect of the domain names, and (c) the domain names were registered

and are being used in bad faith.

Kejr avers that (a) Art’s, now known as AMS, is a competitor in the soil sampling,

direct push and drilling industries, and (b) both parties manufacture and sell

"numerous similar and/or identical products to the same customers in the same

industry." Kejr asserts that Art’s owns the domain name <ams-samplers.com>

and operates its primary web site at that location. Art’s <ams-samplers.com>

domain name was registered November 15, 1996 (Annex 8). Kejr states

that a comparison of the home pages of the parties (Annexes 6 and 7) "readily

reveals the competitive nature of the two parties ’ businesses."[1]

Kejr asserts that Art’s registered the two domain names in issue on October 5, 2000

(Annex 1). Kejr contends that because the parties had been competing for over

a decade, Art’s necessarily knew of Kejr’s trademark rights in "Geoprobe" and

"Geoprobe Systems". Also, Kejr is known in the industry and does business as

"Geoprobe Systems". In addition, Kejr had been operating its <geoprobesytems.com>

web site for at least four years prior to Art’s registration of the two domain

names in issue.

(2) Identical or Confusing Similarity

Kejr claims it has trademark rights in "the marks GEOPROBE, GEOPROBE SYSTEMS,

<geoprobe.com> and <geoprobesystems.com>." Kejr asserts that Art’s

two domain names are "legally identical" to the registered mark "Geoprobe Systems"

because the domain names are simply in the singular and differ from the registered

mark by only one letter. Kejr makes the same assertion with respect to its alleged

mark "geoprobesystems.com". Kejr asserts these differences do not "preclude

confusion ... given the highly and directly competitive nature of the products

and services offered at the sites." In support of these contentions, Kejr cites

decisions in WIPO Cases Nos. D2000-1768,

D2000-1686, D2000-1204,

D2000-0614, D2000-0304,

and D2000-0274[2].

In addition, Kejr asserts that "at an absolute minimum," Art’s domain names

are "confusingly similar to the trademarks and/or service marks in which Complainant

has rights," citing National Arbitration Forum decision FA95940.

(3) Rights or Legitimate Interests

Kejr asserts that in addition to the evidence of bad faith registration and

use referred in the next subsection, Art’s is "void of rights or legitimate

interests in the domain names." Kejr contends that its U.S. trademark registrations

are evidence of Kejr’s "exclusive rights to the marks GEOPROBE and GEOPROBE

SYSTEMS in the direct push, soil sampling and drilling industries." Accordingly,

Art’s has no rights or legitimate interests in domain names that are "virtually

identical" to Kejr’s marks and domain names. Kejr asserts also, in light of

the U.S. registrations "covering goods and services" also offered by Art’s,

Art’s "would not be able to use the subject domain names .... in connection

with the offering of any of the goods and services provided by Respondent at

the time of the notice." Kejr says that by virtue of its registered marks, it

has "exclusivity to use the GEOPROBE and GEOPROBE SYSTEMS marks in connection

with the above-listed and competing goods and services."

Kejr adds that Art’s "was merely using the domain names as technical pointers

(i.e. links that merely redirect Internet users) to Respondent’s main website

at ams-samplers. com." Thus, says Kejr, Art’s "does not conduct any legitimate

business under the domains, but instead conducts their legitimate business under

their arms-samplers.com mark." Kejr asserts Art’s "merely used the subject domain

names to misleadingly redirect and divert" Kejr’s customers to Art’s. Kejr avers

there is no evidence that, before Kejr’s February 13, 2001 notice

to Art ’s, Art’s had used or made demonstrable preparations to use the two domains

in connection with a bona fide offering of goods and services.[3]

To the contrary, says Kejr, Art’s had used the domains "merely to link the domains

to its then current site where it used its own trademarks in connection with

the offering of competing goods and services."

Kejr avers that in light of the foregoing, Art’s is not, and has not been,

commonly known by the two domain names.

Kejr asserts Art’s "is not making a legitimate non-commercial or fair use of

the domain names without intent for commercial gain to misleadingly divert customers

or to tarnish the trademarks or service marks" of Kejr. Art’s has not explored

additional business opportunities to use the domain names which would not cause

"reasonable confusion", as stated in its counsel’s July 9, 2001 letter

(Annex 12). Thus, this was not Art’s purpose in originally registering and using

the domain names

(4) Bad Faith

Kejr avers that the two domain names in issue have been registered and are

being used in bad faith.

Kejr first asserts that trademark owners "often register ... domain names where

the second-level domain is a common misspelling of their trademarks." Kejr appears

to draw this conclusion from its view that (a) Art’s singular form of "Complainant’s

trademark represent such a common misspelling," and (b) Art’s domain names "incorporate

the entirety of Complainant’s GEOPROBE trademark."

Next, Kejr asserts the domain names were registered primarily for the purpose

of disrupting the business of a competitor. Kejr points again to (1) the similarity

of the products offered by Art’s and Kejr at their web sites, and (2) both domain

names were set up as technical pointers to Art’s <ams-samplers.com> site.

Thus, potential Kejr customers who typed in the singular form of Kejr’s registered

mark "Geoprobe Systems" would be taken to Art’s competing web site which offered

similar products as Kejr. Kejr avers:

"Towards the end of the year 2000, Complainant received numerous calls from

people who were attempting to locate Complainant on the web. These individuals

expressed that while trying to access Complainant’s website, they were repeatedly

linked to Respondents [sic] website."

Kejr asserts that, after determining that Art’s domain names were the source

of the problem, Kejr sent a cease and desist letter to Art’s President on February 13, 2001

(Annex 9). Inter alia, the letter requested Art’s to execute documents transferring

the two domain names to Kejr. On March 1, 2001, counsel for Art’s

replied, requesting time to consider the matter (Annex 10). The letter "indicated

that, during the pendency of the review of the matter, Respondent would discontinue

the practice of linking the subject domains to their website." Further, "when

the links from the subject domains were not taken down as indicated ... in the

March 1, 2001 letter," Kejr’s attorney telephoned Art’s counsel on

March 8, 9, 12, and 14. Kejr asserts the links were taken down March 14, 2001,

but Art’s has not transferred ownership of the domains to Kejr and "could reestablish

the links to their site at a moment’s notice."

Kejr asserts that, on March 23, 2001, Kejr’s attorney again "contacted"

Art’s attorney, who "indicated he would talk with his client early the following

week and get back with counsel for Complainant." Kejr avers that, having received

no communication from Art’s counsel, Kejr’s counsel sent another letter on May 11, 2001

(Annex 11), repeating the cease and desist demand and requesting transfer of

ownership of the domain names. On July 9, Art’s counsel sent a letter to Kejr’s

counsel, stating Art’s "is not currently using the domains in the manner that

they were and that the Respondent would not be transferring the domains to Complainant"

(Annex 12).

Kejr contends that Art’s registration and use in bad faith is evidenced by

its "intentional attempt ...to attract for financial gain Internet user’s to

Respondent’s website by creating a likelihood of confusion with Complainant’s

mark ...". Kejr asserts:

"By redirecting potential customers of Complainant to Respondent’s website

which offers similar products, Respondent attempted to redirect sales from Complainant

to Respondent for the financial gain of Respondent. Respondent attempted to

palm off of the goodwill created by Complainant in Complainant’s marks by creating

not only a likelihood of confusion with the Complainant’s mark but actual confusion."

Kejr cites WIPO decisions in Cases No. D2000-1768

and D2000-0037 and National Arbitration

Forum decisions in Cases No. FA95940 and FA95741.

Kejr requests that the panel decide that each of the two domain names in issue

be transferred to Kejr.

The Complaint concludes with the requisite certification as to completeness

and accuracy and is signed by Complainants’ counsel.

c. The Response

Art’s does not contest the applicability of the Policy or jurisdiction of WIPO

in this proceeding. Art’s submits itself to this "mandatory proceeding".

(1) "Identical or Confusingly Similar"

Art’s asserts that the domain names in issue differ "in a number of respects

from the trademark and/or service marks of which Complainant possesses right

(GEOPROBE, GEOPROBE SYSTEMS, geoprobe.com and geoprobesystems.com)." Art’s relies

on the space between Geoprobe and Systems in "Complainant’s registered trademark,"

and "the plural form of the Complainant’s marks." Also, Art’s claims one of

its domain names (i.e. <geoprobesystem.net>) "is a wholly different and

alternative top level domain." Art’s contends that the decisions cited by Kejr

are inapposite because all are default decisions and in none were issues presented

here contested.

(2) "Rights or Legitimate Interests"

Art’s claims that, before any notice from Kejr, Art’s used the domain names

in connection with its bona fide offering of goods and services. Art’s states:

"Respondent has successfully participated in the direct push, soil sampling

and drilling industries in which the Complainant likewise operates for approximately

14 years."

Art’s asserts that, in the industry in which both parties participate, "Geoprobe"

has

"acquired generic characteristics and lacks the functions generally associated

with a trademark: (i) identification of origin; (ii) identification of quality

assurance; and (iii) symbolism of good will."

Thus, according to Art’s, in the industry, "Geoprobe" "essentially represents"

tools equipment and/or activities, lacks the "substantial good will" claimed

by Kejr, is not representative of "Complainant’s proposed ‘standards of excellence

and high quality products and services’," but "is merely representative of a

niche of activities affiliated with soil sampling and other similar activities."

From this, Art’s concludes it has legitimate interests in the domain names.

Art’s asserts also "Geoprobe" is being used by "numerous third parties to identify

similar activities." Art’s contends Kejr, "through its acts of omission as well

as commission, has caused the mark in question to become generic as applied

to its goods and services." Art ’s cites 15 U.S.C. § 1127. Art’s concludes this

proceeding has been brought in bad faith by Kejr.

Art’s avers that both parties acknowledge they are competitors and "manufacture

and sell numerous similar and/or identical products to the same customers within

this industry." Art’s claims Kejr, "in efforts to keep any competition at bay,"

is engaging in "reverse domain name highjacking."

With respect the Kejr’s claim that Art’s uses its domain names as a "‘technical

pointer’ (i.e., links that merely redirect internet users) to Respondent’s main

web site at www.AMS-Samplers.com," Art’s intent was "to leverage the ubiquitous

nature of the internet to benefit its bona fide offering of goods and services."

Art’s avers:

"The intent of the Respondent at no time was to ‘misdirect’ internet users

from Complainant’ s web site to Respondent’s web site."

Art’s asserts that "upon Respondent’s receipt" of the February 13, 2001

letter, Art’s

"in good faith, agreed and in fact did discontinue the use of the domain names

in question. This action was merely an accommodation to demonstrate Respondent’s

good faith while it reviewed the matter and explored additional business opportunities

it may have for its use of the domain names.

"In a July 2001 letter to Complainant, which is attached as Exhibit 12 to

Complainant’s filing, Respondent clearly stated that it was exploring additional

business opportunities to make use of the domain names which would not cause

reasonable confusion with Complainant’s goods and services. This communication

... clearly stated that Respondent believes it has a legitimate interest in

respect of the domain names. Respondent continues to believe it is making a

legitimate and fair use of the domain names in question.

"Respondent has communicated to Complainant and has established that it has

no intent to mislead or divert customers or to tarnish the trademark or service

mark of Complainant."

(3) Bad Faith

Art’s asserts it did not register and has not used the domain names in bad

faith. Art’ s notes that upon notification from Kejr that "some confusion may

exist between the domain names ... and the rights Complainant has in certain

trademarks," Art’s in good faith discontinued the use of the domain names. Art’s

avers the domain names were not registered in an effort to prevent Kejr from

reflecting its trademarks in a corresponding domain name. Rather, Kejr "very

easily could have registered the domain names in question here at any time prior

to the Respondents [sic] doing so." Art’s notes that Kejr acknowledges that

such opportunity existed, and that "many trademark owners register domain names

which are similar and/or identical to their trademark." Art’s contends that

Kejr’s failure to register the domain names does not support a conclusion of

bad faith on Art’ s part.

Art’s avers that the domain names were not registered for the purpose of disrupting

Kejr’s business. Art’s iterates that both parties are "in the business of manufacturing

and selling products in the direct push, soil sampling and drilling industries,"

and "Geoprobe" has "attained ‘generic’ characteristics within the industry."

Art’s asserts the domain names were registered "in the normal course of business."

Citing Policy ¶¶ 4.(b) and 4.(c), Art’s avers it immediately discontinued use

of domain names which were not registered primarily for the purpose of transferring

the registrations to Kejr or a competitor. Art’s repeats that the domain names

were not registered to prevent Kejr "from reflecting the mark in a corresponding

domain name," and Art’s has not engaged in a pattern of such conduct. Art’ s

avers:

"On the contrary, the Respondent discontinued the use of the domain names in

question although Respondent engages in the bona fide provision of goods and

services within the industry that recognizes the generic nature of the terms

within the domain names at issue."

The Response does not seek any specific relief. It concludes with counsel’s

certification as to completeness and accuracy.

5. Discussion and Findings

Paragraph 4.(a) of the Policy directs that Kejr 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

Kejr has rights, and

(ii) Art’s has no rights or legitimate interests in respect of the domain name,

and

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

a. Identity or Confusing Similarity

Kejr has the burden of proving this element and each of the other two elements

of Paragraph 4.(a) of the Policy.

Kejr asserts trademark rights in its registered trademark "Geoprobe", its registered

service mark "Geoprobe Systems", and its domain names <geoprobe.com> and

<geoprobesystems.com>. For purposes of the panel’s analysis of the Paragraph

4.(a)(i) element, it is sufficient to focus on Kejr’s registered service mark

"Geoprobe Systems".[4]

It is beyond dispute that, under United States law, Kejr has rights in the

service mark "Geoprobe Systems" with respect to the services specified in the

certificate of registration. The registration issued on the Principal Register

of the United States Patent and Trademark Office almost four years before Art’s

registered the two domain names in issue. Kejr’s certificate of registration

is prima facie evidence of Kejr’s "exclusive right to use the mark in commerce

[in the United States] on or in connection with the goods or services specified

... ." 15 U.S.C. § 1057(b). Art’s concedes that both parties have competed for

years in providing the same or similar products and services to the same customers

within the same industry. It is too late for Art’s simply to challenge Kejr’s

registered marks on the basis of a naked argument, unadorned with any supporting

evidence, that the registered marks are "generic" or that others use the term

"Geoprobe".[5]

Ample authority supports the conclusion that each domain name in issue is virtually

identical, or confusingly similar, to the registered service mark "Geoprobe

Systems". Neither the deletion of an "s" to form a singular form of a mark,

nor the running together of the two words comprising the mark, detracts from

"identity" as that term has been construed in connection with Policy Paragraph

4.(a)(i). E.g., Aurora Foods v. David Paul Jones, WIPO

D2000-0274. Even if there were no such identity, it is apparent from this

record that each domain name in issue is confusingly similar to the registered

service mark.6 Also, that <geosystems.net> is in a different top level

domain from ".com" is not relevant in this analysis.7

In light of the foregoing, on this record, the Panel finds that Kejr has carried

its burden of proof under Paragraph 4.(a)(i) as to the domain names in issue.

b. Rights or Legitimate Interests

Kejr’s prior use and registration of the service mark "Geoprobe Systems" does

not alone preclude Art’s from having any rights or legitimate interests in the

domain names in issue. The panel must consider the rights and interests Art’s

claims and its purpose in asserting such rights and interests. Policy Paragraph

4.(c) provides illustrative circumstances which may demonstrate Art’s rights

and interests in one or more of the domain names.

On this record, the panel finds that (1) Art’s only recently registered and

used the two domain names in connection with its offering of goods and services

it had offered for years in competition with Kejr, (2) Art’s use of the two

domain names was intended to send directly to Art’s main web site customers

looking for a Kejr website, and (3) Art’s failed to find another use for the

two domain names at least during nine month period from mid-March 2001,

to the filing of Art’s Response in this proceeding on December 20, 2001.

While Art’s may have been for years a bona fide manufacturer and seller of goods

and provider of services that compete with Kejr’s goods and services, it is

only common sense to conclude that Art’s must have been aware that its recent

use of the two domain names would be and was diverting to its main web site

customers intending to go to Kejr’s web site.

The <ams-samplers.com> domain name for Art’s main website was registered

on November 15, 1996 (Annex 8), four years before Art’s registered

the two domain names in dispute (Annex 1), and more than four months after Kejr

registered <geoprobesystems.com> (Annex 5). It is entirely appropriate

to conclude that (1) Art’s was fully familiar with its competitor Kejr’s websites,

and (2) Art’s intended to gain commercially from Art’s use of the two domain

names to divert customers to its main web site. Art’s alleged intent to "to

leverage the ubiquitous nature of the internet" is entirely consistent with

such conclusion and in no way supports a conclusion that Art’s has had rights

or legitimate interests in the domain names in issue.

As stated in Section a. above, Art’s unsupported attack on Kejr’s registered

marks carries no weight. The allegedly "generic" character of Kejr’s marks,

and in particular the registered service mark, should be readily evidenced by

contemporaneous literature and documents, if the allegation has merit. Art’s

has provided no such support. Art’s ipse dixit cannot alone establish that Kejr’s

marks are generic or that somehow Art’s has rights superior to Kejr’s exclusive

rights.

The Panel finds that Kejr has carried its burden of proof with regard to Paragraph 4.(a)(ii)

as to the two 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." The third and fourth

illustrative circumstances fit the facts here.

Paragraph 4.(b)(iii) relates to registration of the domain name in issue "primarily

for the purpose of disrupting the business of a competitor." As discussed in

Section b. above, on this record it is entirely reasonable to conclude that

at least one of Art’s purposes, if not the primary purpose, in registering the

two domain names in issue was to disrupt Kejr’s business. Even if one were to

infer that Art’s believed from October 5, 2000, forward that its registrations

were justified because Kejr’s registered marks were "generic", that would not

justify Art’s actions.

Kejr’s U.S. registration of "Geoprobe Systems" in 1999, and its U.S. registration

of "Geoprobe" in 1990, were both based on uses in commerce no later than February 1988.

Accordingly, as a matter of law, when it registered the two domains in October 2000,

-- more than 12 years after Kejr’s first use of its registered marks --, Art’s

was charged with knowledge of Kejr’s exclusive right to use those marks in connection

with goods and services which competed directly with Art’s goods and services.

As a matter of law, on this record, Art’s belief to the contrary is not relevant.

This is especially so in light of Art’s fragile and ineffective distinctions

between Kejr’s registered service mark "Geoprobe Systems" and Art’s two domain

names (Section a. above). The plain likelihood that Art’s domain names would

divert potential Kejr customers to a site they did not intend to reach, i.e.

Art’s main web site, renders Paragraph 4.(b)(iii) applicable to Art’s conduct.

Paragraph 4.(b)(iv) refers to an intentional attempt to attract, for commercial

gain, internet users to the domain name registrant’ s site, by creating a likelihood

of confusion with the Complainant’s mark as to "the source, sponsorship ...

of [domain name registrant’s] web site ... or of a product or service on [domain

name registrant’s] web site ...." The finding of virtual identity of the domain

names in issue with Kejr’s registered service mark, and at minimum a likelihood

of confusion (Section a. above), causes Paragraph 4.(b)(iv) to be applicable

to Art’s conduct here. Art’s concedes that Art’s has for more than a decade

manufactured and offered the same or similar products as Kejr to the same customers

in the same industry. It is entirely valid to infer that Art’s must have intentionally

attempted to attract customers to its web site by way of the likelihood of confusion

with Kejr’s registered marks Art’s necessarily created by registering the two

domain names in issue and operating web sites at those addresses which linked

the internet user directly to Art’s main web site.

Art’s failure to find another use of the domain names, subsequent to its discontinuing

the practice of linking, is consistent with the conclusion that Art’s primary

purpose and intent were to disrupt Kejr’s business and to attract potential

Kejr customers by creating a likelihood of confusion. Art is not assisted by

assertions here or in Art’s counsel’s July 9, 2001 letter, (Annex

12) that it is not Art’s intention to use "these marks [i.e. the two domain

names in issue] ... in a fashion which would cause reasonable confusion with

the goods and/or services rendered by [Kejr]." This is a nonsensical and irrelevant

criterion. The law does not refer to "reasonable" confusion, whatever that is.

The law refers to "likelihood" of confusion, which on this record is abundantly

plain. In light of Art’s July 9, 2001 assertions, and its assertions

in its Response here, unless the domain names in issue are transferred to Kejr,

Kejr will be left facing the in terrorem effect of Art’s resuming use of either

or both of the domain names to disrupt Kejr’s business or to attract Kejr customers

to Art’s main web site because of the likelihood of confusion Art’s will again

have created.

The Panel finds that, under Paragraph 4.(a)(iii), Art’s has registered and

used each of the two domain names in issue in bad faith.

6. Decision

In light of the findings by the panel, the panel decides that Kejr has met

its 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 two domain

names in issue (i.e., <geoprobesystem.com> and <geoprobesystem.net>)

be transferred to Kejr.

David W. Plant

Sole Panelist

Dated: January 22, 2002

1. To this layman's eye, the two pages at

Annexes 6 and 7 do not so readily reveal the directly competitive nature of

the products and services offered on the sites. However, Art's concedes the

point.

2. D2000-1768, NetWizards v. Spectrum Enterprises,

appears to have served as a model for Kejr's averments.

3. Kejr appears to refer to its counsel's

letter of February 13, 2001 to Art's (Annex 9).

4. On this record, Kejr's rights are clearer

with respect to the two registered marks than the two Kejr domain names. The

virtual identity of Art's two domain names to Kejr's registered service mark

"Geoprobe Systems" permits the panel to focus on that mark in connection

with Paragraph 4.(a)(i).

5. Art's citation to 15 U.S.C. § 1157,

which sets out definitions, does not avail Art's on this score.