The Vanguard Group, Inc. v. Lorna Kang

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Vanguard Group, Inc. v. Lorna Kang

Case No. D2002-1064

1. The Parties

The Complainant in this administrative proceeding is The Vanguard Group, Inc.,

a corporation organized and existing under the laws of Pennsylvania having a

place of business in Malvern, PA 19355, United States of America.

The Respondent in this administrative proceeding is Lorna Kang, with a postal

mailing address listed as a post office box in Perak, 36009, Malaysia.

2. The Domain Name and Registrar

The disputed domain name is <vanguar.com>. The Registrar of the domain

name is iHoldings.com, Inc. d/b/a DotRegistrar.com ("DotRegistrar.com").

3. Procedural History

This is a mandatory administrative proceeding submitted for decision in accordance

with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet

Corporation for Assigned Names and Numbers ("ICANN") on August 26,

1999, (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution

Policy, approved by ICANN on October 24, 1999, (the "Rules") and the

World Intellectual Property Organization ("WIPO") Supplemental Rules

for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").

By registering the disputed domain name with the Registrar, the Respondent

agreed to the resolution of certain disputes pursuant to the Policy and Rules.

According to the information provided by the World Intellectual Property Organization

Arbitration and Mediation Center (the "Center"), the history of this

proceeding is as follows:

The Complainant filed its Complaint with the Center on November 20, 2002, by

email and on November 25, 2002, by hardcopy.

On November 22, 2002, the Center requested and obtained from DotRegistrar.com,

the registrar of the disputed domain name, verification that the domain name

is registered with DotRegistrar.com and the Respondent is the registrant for

the domain name.

On November 27, 2002, having verified that the Complaint satisfied the formal

requirements of the Policy, the Rules and Supplemental Rules, the Center

formally commenced this proceeding and delivered to the Respondent notice of

the Complaint and commencement of this proceeding.

On November 29, 2002, the Center sent an electronic copy of the Complaint to

the Respondent by email (using the email addresses Kang@ukr.net and postmaster@vanguar.com)

and a paper copy of the Complaint to the Respondent’s postal address set forth

in the registration information for the disputed domain name. The paper copy

of the Complaint was returned to the Center with a note indicating that the

Respondent’s post office box address is "closed". The email to the

address postmaster@vanguar.com was not successfully transmitted due to "transient

non-fatal errors". The email to the address Kang@ukr.net was successfully

delivered.

The Respondent failed to file a Reply within the prescribed time limits or

at all, and on December 30, 2002, the Center delivered a Notification of Respondent

Default to the Respondent.

The single Panel member, Bradley J. Freedman, agreed to act as Panelist in

this proceeding and filed the necessary Statement Of Acceptance and Declaration

Of Impartiality And Independence, and on January 6, 2003, was duly appointed

by the Center. Absent exceptional circumstances, the Panel was required to forward

its decision to the Center by January 20, 2003.

On January 6, 2003, the Center delivered a Notification of Appointment of Administrative

Panel and Projected Decision Date to the parties.

The Panel finds that it was properly constituted and appointed in accordance

with the Rules and the Supplemental Rules.

Based upon the information provided by the Center, the Panel finds that all

technical requirements for the prosecution of this proceeding were met.

4. Factual Background

The following information is derived from the Complaint and supporting evidence

submitted by the Complainant.

The Complainant is a provider of financial investment and financial advisory

services and finance and investment-related products and ancillary services.

The Complainant is one of the leading investment companies in the United States,

and the largest no-load mutual fund company in the world. The Complainant currently

manages a portfolio of over $550 billion in assets.

The Complainant has used since as early as 1974, and is currently using, the

word "Vanguard" as a trademark and as a component of trademarks for

a variety of financial products and services. The Complainant is the registered

owner of the VANGUARD trademark registered in the United States for use in association

with fund investment services (Registration No. 1,784,435) issued July 27, 1993.

The Complainant is also the registrant of the <vanguard.com> domain name,

which it uses for a website that provides financial information to the public

and financial services to the Complainant’s institutional and individual investors.

The Complainant’s vanguard.com website won top honors in Forbes’ 2000 "Best

of the Web" issue, and was named a "Forbes Favorite" for investing

websites in the Forbes’ 2001 "Best of the Web" issue.

The disputed domain name was registered on November 19, 2001. At least as early

as May 31, 2002, the disputed domain name resolved to the business and finance

section of the magazine.com website, which featured advertisements for the sale

of financial publications such as Money, Forbes and The Wall Street Journal

and permitted the on-line purchase of subscriptions for those magazines. The

magazine.com website content does not appear to include the words "Vanguar"

or "Vanguard".

The Complainant sent two letters regarding this matter to the Respondent by

postal mail and email. The letters asserted the Complainant’s rights in the

VANGUARD trademark and demanded that the Respondent transfer the disputed domain

name to the Complainant. The Complainant did not receive a response from the

Respondent to either communication.

The Respondent has no trademark rights in the term VANGUAR.

The Respondent has not filed any response to the Complaint or answered the

Complainant’s factual assertions or evidence in any other manner.

On its own initiative, the Panel accessed the Respondent’s website using the

disputed domain name [1]. The disputed domain

name currently redirects to a website that uses the domain name <www.gotoo.com/treasure/finance.html>

and provides links to other websites regarding financial services, financial

magazines, and other matters. The website also presents a pop-up ad for an Internet

casino. The website content does not include the words "Vanguard"

or "Vanguar".

5. Parties’ Contentions

(a) Complainant

The Complainant contends as follows:

(i) The Complainant is the owner of the VANGUARD trademark in the United States,

and the disputed domain name is confusingly similar to the Complainant’s mark

because it is a common misspelling of the Complainant’s mark.

(ii) The Respondent has no rights or legitimate interests in respect of the

disputed domain name.

(iii) The Respondent registered and is using the disputed domain name in bad

faith because: (1) the Respondent had constructive notice under United

States trademark law regarding the Complainant’s registered mark; (2) the Respondent’s

registration of the disputed domain prevented the Complainant from doing so;

(3) the Complainant has not consented to the Respondent’s registration

or use of the disputed domain name; (4) the Respondent failed to comply with

the Complainant’s demand to transfer the disputed domain name to the Complainant;

(5) the disputed domain name is "typo-squatting" - an attempt to take

advantage of typographical errors by Internet users attempting to access the

Complainant’s <vanguard.com> website and divert such users to a website

selling financial magazines; and (6) Internet users that access the Respondent’s

website in an attempt to reach the Complainant’s website may incorrectly believe

that the Complainant’s website is affiliated, sponsored by or connected with

the <magazines.com> website.

(b) Respondent

As previously indicated, the Respondent has not filed any response to the Complaint

and has not answered the Complainant’s contentions in any other manner.

6. Discussion and Findings

The Policy is narrow in scope. It applies only to disputes involving alleged

bad faith registration and use of domain names – conduct commonly known as "cybersquatting"

or "cyberpiracy". The Policy does not apply to other kinds of disputes between

trademark owners and domain name registrants. The narrow scope of the Policy

reflects its origins as a novel form of Internet dispute resolution designed

to balance a wide range of perspectives regarding the regulation of Internet

conduct [2].

The application of the Policy is limited to situations in which a complainant

asserts and proves the following: (i) the registered domain name is identical

or confusingly similar to a trademark or service mark in which the complainant

has rights; (ii) the registrant 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 [3]. A complainant must

prove all three elements in order to be entitled to relief under the Policy

[4].

The burden is on the Complainant to prove each of the three required elements

set forth in Policy paragraph 4(a). It is not sufficient for the Complainant

to make assertions without providing proof [5].

(a) The Respondent’s Default

Rules paragraph 10(a) requires that the Panel ensure that each party is given

a fair opportunity to present its case. Rules paragraph 14 reads as follows:

Default

(a) In the event that a Party, in the absence of exceptional circumstances,

does not comply with any of the time periods established by these Rules or the

Panel, the Panel shall proceed to a decision on the complaint.

(b) If a Party, in the absence of exceptional circumstances, does not comply

with any provision of, or requirement under, these Rules or any request from

the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.

The Respondent was given notice of this proceeding in accordance with the Rules.

The Center discharged its responsibility under Rules paragraph 2(a) to employ

reasonably available means calculated to achieve actual notice to the Respondent

of the Complaint.

The Panel further notes that the Registrar’s Registration Agreement requires

the Respondent to keep its contact information (including postal address) "up-to-date,

complete and accurate". A respondent cannot hide behind the provision to

the Registrar of either an incorrect or out-of-date postal address.

As previously indicated, the Respondent failed to file any reply to the Complaint

and has not sought to answer the Complainant’s assertions, evidence or contentions

in any other manner. The Panel finds that the Respondent has been given a fair

opportunity to present its case, and the Panel will proceed to a decision on

the Complaint.

The Respondent’s default does not automatically result in a decision in favor

of the Complainant. The Complainant must still prove each of the three elements

required by Policy paragraph 4(a) [6].

Rules paragraph 15(a) provides that the Panel shall decide the Complaint on

the basis of the statements and documents submitted in accordance with the Policy,

the Rules, and any rules and principles of law that it deems applicable. In

accordance with Rules paragraph 14(b), the Panel may draw such inferences as

are appropriate from the Respondent’s failure to reply to the Complainant’s

assertions and evidence or to otherwise contest the Complaint. In the circumstances,

the Panel’s decision is based upon the Complainant’s assertions and evidence

and inferences drawn from the Respondent’s failure to reply

[7].

(b) The Complainant’s Trademark Rights

The Complainant is the owner of the VANGUARD trademark registered in the United

States, and uses that mark in association with its financial investment and

financial advisory services and finance and investment-related products and

ancillary services. The Complainant’s assertions in this regard are supported

by documentary evidence. The Respondent has not filed any reply to the Complaint

or contested the Complainant’s assertions. In the circumstances, the Panel finds

that the Complainant has rights in the VANGUARD trademark [8].

The Policy requires that the disputed domain name be "identical or confusingly

similar" to the Complainant’s VANGUARD trademark. The Complainant asserts

that the challenged domain name is confusingly similar to its trademark.

Neither the Policy nor the Rules provide any guidance with respect to

the test to be applied regarding the confusing similarity requirement of the

Policy. Panels have applied different tests. Some panels have undertaken a literal

comparison of the domain name and the trademark, and have not considered whether

there is any source confusion [9]. Other panels

have undertaken a source confusion analysis as required by conventional Anglo-American

trademark law, which involves a consideration of all of the circumstances including

the strength of the complainant’s mark, the sophistication of likely consumers,

and the nature of the wares and services with which the domain name and conflicting

mark are used [10].

A number of considerations support the view that the appropriate test for confusing

similarity under the Policy is a literal comparison of the challenged domain

name and conflicting mark:

1. The language of Policy paragraph 4(a) should be interpreted in a purposive

manner consistent with the Policy’s remedial nature and objective – to prevent

the extortionate behavior known as "cybersquatting".

2. The language of Policy paragraph 4(a) does not invoke a likelihood of confusion

test, as contrasted with Policy paragraph 4(b)(iv) which expressly refers to

a "likelihood of confusion with the complainant’s mark as to the source, sponsorship,

affiliation, or endorsement of [the registrant’s] website or location or of

a product or service on [the registrant’s] website or location" as an indication

of bad faith domain name registration and use.

3. The Policy is international and, in the absence of express language, it

is inappropriate to import into Policy paragraph 4(a) a test that may not exist

under all national trademark laws.

4. The procedure contemplated by the Policy is not well suited to the kinds

of factual issues presented by a conventional source confusion analysis. In

particular, the Policy is intended to be a relatively quick and inexpensive

process, panels must make factual determinations based upon written submissions

and documentary evidence, complainants have no right of reply without the panel’s

permission, and parties are often not represented by counsel.

For these reasons, the Panel considers the appropriate test for confusing similarity

to be a literal comparison of the disputed domain name and the complainant’s

mark.

When comparing a disputed domain name and a trademark, the addition of the

".com" suffix is irrelevant for determining whether the domain name is identical

or confusingly similar to the trademark. Rather, one looks to the second-level

domain for such a determination, since the ".com" suffix is merely descriptive

of the registry services and is not an identifier of a source of goods or services

[11].

The only difference between the Complainant’s VANGUARD trademark and the disputed

domain name is the omission of the letter "d" in the domain name.

Other panels have held that the omission of a single letter does not eliminate

confusion with a trademark, particularly where the trademark is well known [12].

In the circumstances, the Panel finds that the disputed domain name is confusingly

similar to the Complainant’s VANGUARD trademark. Accordingly, the Panel finds

that the Complainant has satisfied the first element required by the Policy.

(c) The Respondent’s Rights and Legitimate Interests

The second element required by Policy paragraph 4(a) – the registrant has no

legitimate right or interest in the domain name – requires the Complainant to

prove a negative proposition, which can be particularly difficult [13].

A number of panels have held that the burden on a complainant regarding the

second element is necessarily light, because the nature of the registrant’s

rights or interests, if any, in the domain name lies most directly within the

registrant’s knowledge [14]. Other panels

have held that once the complainant makes a prima facie showing that the registrant

does not have rights or legitimate interest in the domain name, the evidentiary

burden shifts to the registrant to rebut the showing by providing evidence of

its rights or interests in the domain name [15].

The Complainant contends that the Respondent has no rights or legitimate interests

in respect of the disputed domain name because the Respondent has no trademark

rights in the term "VANGUAR". The Complainant has not provided any evidence

of trademark searches or other investigations to indicate that the Respondent

does not have any interest in any marks that include the term "VANGUAR" and

is not commonly known as " VANGUAR". In some circumstances, the omission of

such evidence would be fatal to a complaint under the Policy. Nevertheless,

in the circumstances of this dispute – the Complainant’s well known VANGUARD

trademark and the publicity regarding its <vanguard.com> domain name and

website, the evidence adduced by the Complainant (the Respondent’s name, the

websites for which the disputed domain name is used by the Respondent, and the

Respondent’s lack of rights granted by the Complainant) – together with an adverse

inference from the Respondent’s failure to reply to the Complaint or provide

any justification for its registration and use of the disputed domain name,

are sufficient to satisfy the Complainant’s evidentiary burden.

Even though the Respondent has not filed any reply to the Complaint and has

not contested the Complainant’s assertions, it is incumbent upon the Panel to

consider whether the Respondent’s use of the disputed domain name demonstrates

rights or legitimate interests in the domain name. According to Policy paragraph

4(c), the following circumstances, if proved, demonstrate a registrant’s rights

or legitimate interests in a domain name:

(i) the registrant used or demonstrably prepared to use the domain name or

a corresponding name in connection with a bona fide offering of goods or services

prior to notice of the dispute;

(ii) the registrant (as an individual, business, or other organization) has

been commonly known by the domain name, even if it has not acquired trademark

rights; or

(iii) the registrant is making a legitimate non-commercial or fair use of the

domain name, without intent for commercial gain to misleadingly divert consumers

or to tarnish the complainant’s mark.

To satisfy the requirements of Policy paragraph 4(c)(i), the Respondent’s use

of the disputed domain name must be in connection with a "bona fide" offering

of goods or services. In some circumstances, a website advertising and selling

financial magazines or financial products and services may constitute a bona

fide offering of goods or services. In the circumstances of this case, however,

the Respondent’s use of the disputed domain name is not "bona fide" within the

meaning of Policy paragraph 4(c)(i) because: (a) the disputed domain name is

confusingly similar to the Complainant’s well known trademark and its <vanguard.com>

domain name; (b) there is no apparent connection or relationship between the

disputed domain name and the Respondent or its websites or their content; and

(c) there is no other apparent legitimate justification for the Respondent’s

registration and use of the disputed domain name for its websites. In addition,

the Panel draws an adverse inference from the Respondent’s failure to provide

any explanation or rationale for its use of the disputed domain name for its

websites [16].

Policy paragraph 4(c)(ii) is not applicable. The Respondent does not contend,

and there is no evidence that, the Respondent has been commonly known by the

disputed domain name or that the disputed domain name is derived from one of

Respondent’s trademarks or trade names.

Policy paragraph 4(c)(iii) is not applicable. The Respondent is using the domain

name for an offering of services, namely websites that advertise or sell financial

magazines or financial products and services.

For these reasons, the Panel finds that the Respondent has no rights or legitimate

interests in the disputed domain name.

(d) Bad Faith Registration and Use

Policy paragraph 4(a)(iii) requires the Complainant to prove that the Respondent

registered and has used the disputed domain name in bad faith. The language

of Policy paragraph 4(b)(iii) is conjunctive, and requires that both bad faith

registration and bad faith use be proved [17].

"Bad faith" within the meaning of the Policy is a term of art, and is not intended

to apply to distasteful conduct that might constitute bad faith in the ordinary

sense of the term [18].

Policy paragraph 4(b) provides that the following circumstances are deemed

to be evidence that a registrant has registered and used a domain name in bad

faith:

(i) circumstances indicating that the registrant has registered or has 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 the complainant, for

valuable consideration in excess of its documented out-of-pocket costs directly

related to the domain name; or

(ii) the registrant 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 the registrant has engaged in a pattern of such conduct;

or

(iii) the registrant has registered the domain name primarily for the purpose

of disrupting the business of a competitor; or

(iv) by using the domain name, the registrant has intentionally attempted to

attract, for commercial gain, Internet users to its 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 its Website or

location or of a product or service on its Website or location.

The Policy expressly states that these circumstances are non-exclusive [19].

The Complainant does not rely on Policy paragraphs 4(b)(i) or 4(b)(iii).

Policy paragraph 4(b)(ii)

The Complainant relies upon Policy paragraph 4(b)(ii), arguing that the Respondent’s

registration of the disputed domain name prevents the Complainant from reflecting

a common misspelling of its VANGUARD trademark in a corresponding domain name.

However, the Complainant has not asserted or adduced any evidence that the Respondent

has engaged in a pattern of such conduct. In the absence of any evidence of

the required pattern of similar conduct, this ground of the complaint cannot

succeed.

Policy paragraph 4(b)(iv)

The Complainant also relies upon Policy paragraph 4(b)(iv), which requires

the Complainant to establish that the Respondent registered and is using the

disputed domain name in order to confuse and divert Internet traffic to its

website for commercial gain. There is no direct evidence that the Respondent

knew of the Complainant or its VANGUARD trademark, or intended to use the disputed

domain name to confuse and divert Internet users. Nevertheless, the Respondent’s

knowledge and intention may be determined by common sense inferences from circumstantial

evidence [20].

A domain name is more than a mere Internet address. It often identifies the

Internet site to those who reach it, and sends a message that the site is owned

by, sponsored by, affiliated with, or endorsed by the person with the name,

or owning the trademark, reflected in the domain name [21].

The Panel finds that the Respondent knew of the Complainant’s well known VANGUARD

trademark and registered and is using the disputed domain name in order to confuse

and divert Internet traffic to the Respondent’s website, based upon the following

circumstances: (a) the Complainant’s VANGUARD trademark is well known and

specific to the Complainant in connection with financial products and services;

(b) the Complainant’s <vanguard.com> domain name and related website have

received substantial publicity; (c) there is no apparent connection or

relationship between the disputed domain name and the Respondent or its website

or its content; (d) there is no other apparent legitimate justification

for the Respondent’s registration and use of the disputed domain name for its

website; (e) the Respondent has not denied any knowledge of the Complainant

or its trademark; and (f) the disputed domain name is a confusingly similar

misspelling of the Complainant’s <vanguard.com> domain name. In addition,

the Panel draws an adverse inference from the Respondent’s failure to provide

any explanation or rationale for its use of the disputed domain name for its

website.

The Panel also finds that the Respondent’s website results in commercial gain

to the Respondent. It is well known that many websites generate revenue from

click-through advertising, by directing traffic to other websites, and other

online marketing techniques. In the absence of any reply by the Respondent,

the Panel finds that the Respondent’s website generates revenue for the Respondent

in that manner.

The Respondent’s registration and use of the disputed domain name is a form

of bad faith domain name registration and use known as "typosquatting"

– the registration of domain names that are identical to popular website

domain names except for slight differences that may occur as a result of common

keyboarding or spelling errors in order to misdirect Internet users to the mis-labeled

website [22].

Accordingly, the Panel finds that the Complainant has established that the

Respondent registered and is using the disputed domain name in bad faith pursuant

to Policy paragraph 4(b)(iv).

Other

The Complainant also relies upon other grounds, not specifically enumerated

in Policy section 4(b), for contending that the Respondent has registered and

is using the disputed domain name in bad faith: (i) the Respondent had constructive

notice under United States trademark law regarding the Complainant’s registered

mark; (ii) the Respondent failed to comply with the Complainant’s demand to

transfer the disputed domain name to the Complainant; and (iii) Internet users

that access the Respondent’s website in an attempt to reach the Complainant’s

website may incorrectly believe that the Complainant’s website is affiliated,

sponsored by or connected with the <magazines.com> website. Given the

Panel’s determination based upon one of the grounds enumerated in Policy paragraph

4(b), it is not necessary for the Panel to determine whether these additional

grounds are a basis for a finding of bad faith domain name registration and

use.

7. Decision

The Complainant has established each of the three requirements set forth in

Policy paragraph 4(a) – the disputed domain name is confusingly similar to the

Complainant’s VANGUARD trademark, the Respondent does not have any rights or

legitimate interests in the disputed domain name, and the Respondent registered

and is using the disputed domain name in bad faith.

The Panel therefore directs that the registration of the disputed domain name

be transferred from the Respondent to the Complainant.

Bradley J. Freedman

Sole Panelist

Dated: January 20, 2003

Footnotes:

1. This practice has been adopted by numerous

panels. See Corinthians Licenciamentos LTDA v. Sallen, WIPO

Case No. D2000-0461 (July 17, 2000); Commonwealth Hotels Inc. v. CCD

Internet, Case No. AF-00771 (May 17, 2001); Link Clicks Inc. v. John

Zuccarini, WIPO Case No. D2000-1547

(January 12, 2001); Two Systems Enterprises Co. Ltd. v. Sonie’s Creations,

Case No. AF-0911 (September 7, 2001).

2. See Quarterview v. Quarterview Co.

Ltd., Case No. AF-0209(a-b) (July 6, 2000); Libro AG v. NA Global Link

Limited, WIPO Case No. D2000-0186

(May 16, 2000); Toronto Star Newspapers Limited v. Virtual Dates Inc.,

WIPO Case No. D2000-1612 (February 6,

2001); Educational Testing Service v. TOEFL, WIPO

Case No. D2000-0044 (March 16, 2000); FLOS Spa. v. Victory Interactive

Media S.A., WIPO Case No. D2000-0771

(December 15, 2000); Re. Infolink v. Nathan Frey, WIPO

Case No. D2000-1687 (March 26, 2001); Tribeca Film Center Inc. v. Lorenzo

Brusasco-Mackenzie, WIPO Case No. D2000-1772

(April 10, 2001); Deutsche Welle v. DiamondWare Limited, WIPO

Case No. D2000-1202 (January 2, 2001); Nintendo of America Inc. v. Alex

Jones, WIPO Case No. D2000-0998 (November

17, 2000); Wal-Mart Stores Inc. v. wallmartcanadasucks.com, WIPO

Case No. D2000-1104 (November 23, 2000); Jules I. Kendall v. Mayer,

WIPO Case No. D2000-0868 (October 26,

2000); and the ICANN Second Staff Report on Implementation Documents for the

Uniform Dispute Resolution Policy, October 24, 1999, www.icann.org/udrp/udrp-second-staff-report-24oct99.htm,

at paragraph 4.1(c).

3. Policy paragraph 4(a).

4. See Edward Van Halen v. Morgan,

WIPO Case No. D2000-1313 (December 20,

2000).

5. See Rádio Globo SA v. Diogo

Pimentel, WIPO Case No. D2000-1705

(January 31, 2001); Two Systems Enterprises Co. Ltd. v. Sonie's Creations,

Case No. AF-0911 (September 7, 2001); Link Clicks Inc. v. John Zuccarini,

WIPO Case No. D2000-1547 (January 12,

2001).

6. See Packaging World Inc. v. Zynpak

Packaging Products Inc., Case No. AF-0233 (July 28, 2000); Cortefiel

S.A. v. Quintas, WIPO Case No. D2000-0140

(April 24, 2000); Shore Media Ventures Inc. v. Both Worlds Inc., Case

No. AF-0228 (July 11, 2000); Softquad Software Inc. v. Eleven-Eleven Ltd.,

Case No. AF-0143 (June 1, 2000); The Estate of Tupac Shakur v. Andronian,

Case No. AF0349 (October 3, 2000); Cho Yong Pil v. Dooseok,

WIPO Case No. D2000-0754 (August 28, 2000);

Rickey Skaggs v. Vincente, WIPO Case

No. D2000-1134 (December 18, 2000); Ingram Micro Inc. v. Noton Inc.,

WIPO Case No. D2001-0124 (March 6, 2001);

Link Clicks Inc. v. John Zuccarini, WIPO

Case No. D2000-1547 (January 12, 2001).

7. See Packaging World Inc. v. Zynpak

Packaging Products Inc., Case No. AF-0233 (July 28, 2000); MatchNet plc

v. MAC Trading, WIPO Case No. D2000-0205

(May 11, 2000); SeekAmerica Networks Inc. v. Masood, WIPO

Case No. D2000-0131 (April 13, 2000); The Pep Boys Manny, Moe and Jack

of California v. E-Commerce Today, Ltd., Case No. AF-0145 (May 3,

2000); Bloomberg L.P. v. Baltic Consultants Ltd., Case No. FA0010000095834

(November 20, 2000); Isabelle Adjani v. Second Orbit Communications Inc.,

WIPO Case No. D2000-0867 (October 4, 2000);

Sony Corporation v. Inja, WIPO Case

No. D2000-1409 (December 9, 2000); Doctor.Ing.h.c. F. Porsche AG v. Stonybrook

Investments Limited, WIPO Case No. D2001-1095

(October 26, 2001); Credit Suisse Group v. Milanes-Espinach, Fernando and

Milanes-Espinach, SA, WIPO Case No. D2000-1376

(March 20, 2001); Ingram Micro Inc. v. Noton Inc., WIPO

Case No. D2001-0124 (March 6, 2001); American Online Inc. v. Johuathan

Investments Inc., WIPO Case No. D2001-0918

(September 14, 2001); Ticketmaster Corp. v. Brown, WIPO

Case No. D2001-0716 (July 18, 2001).

8. The same finding regarding the Complainant’s

trademark rights was made in The Vanguard Group, Inc. v. RealTimeInternet.com

Inc., WIPO Case No. D2001-0873 (September

4, 2001).

9. See Smoky Mountain Knife Works v. Deon

Carpenter, Case No. AF-230 (July 3, 2000); Newport News Inc. v. VCV Internet,

Case No. AF-0238 (July 18, 2000); Wal-Mart Stores Inc. v. Walsucks and Walmarket

Puerto Rico, WIPO Case No. D2000-0477

(July 20, 2000); Wal-Mart Stores Inc. v. Richard MacLeod d/b/a For Sale,

WIPO Case No. D2000-0662 (September 19,

2000); Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party, WIPO

Case No. D2000-1415 (January 23, 2001); Slep-Tone Entertainment Corporation

v. Sound Choice Disc Jockeys Inc., Case No. FA20002000093636 (March 13,

2000); VeriSign Inc. v. Michael Brook, WIPO

Case No. D2000-1139 (March 7, 2001); Tourism and Corporate Automation

Ltd. v. TSI Ltd., Case No. AF-0096 (March 16, 2000); The Toronto-Dominion

Bank v. Boris Kapachev, WIPO Case No.

D2000-1571 (January 15, 2001); Bayerishe Motoren Werke AG v. JMXTRADE.com

Selling Premium Domain, WIPO Case No.

D2000-1693 (January 26, 2001); Nikon Inc. v. Technilab Inc., WIPO

Case No. D2000-1774 (February 26, 2001).

10. See Aurora Foods Inc. v. David Paul

Jaros, WIPO Case No. D2000-0274 (June

7, 2000); Robert Chestnutt v. Jennifer Tumminelli, WIPO

Case No. D2000-1758 (February 2, 2001); Jordan Grand Prix Limited v.

Gerry Sweeney, WIPO Case No. D2000-0233

(May 11, 2000); Automatic Data Processing Inc. v. Access Electronics,

Case No. FA0101000096483 (February 20, 2001); Motorola Inc. v. Newgate Internet

Inc., WIPO Case No. D2000-0079 (April

14, 2000); America Online Inc. v. Frank Albanese, WIPO

Case No. D2000-1604 (January 25, 2001).

11. See Experience Hendrix L.L.C. v.

Denny Hammerton and The Jimi Hendrix Fan Club, WIPO

Case No. D2000-0364 (August 15, 2000); VAT holding AG v. Vat.com,

WIPO Case No. D2000-0607 (August 22, 2000);

Northwest Airlines Inc. v. Kim Jong Sub, Case No. FA01010000096377 (February 19,

2001); Rollerblade Inc. v. Chris McGrady, WIPO

Case No. D2000-0429 (June 25, 2000); Nintendo of America Inc. v. Alex

Jones, WIPO Case No. D2000-0998 (November

17, 2000); AltaVista Co. v. Stonybrook Investments, WIPO

Case No. D2000-0886 (October 26, 2000); Wal-Mart Stores Inc. v. Walsucks

and Walmarket Puerto Rico, WIPO

Case No. D2000-0477 (July 20, 2000).

12. See News Group Newspapers Limited

and News Network Limited v. Momm Amed la, WIPO

Case No. D2000-1623 (January 18, 2001); Microsoft Corporation v. Global

Net 2000, Inc., WIPO Case No. D2000-0554

(July 25, 2000); Reuters Limited v. Global Net 2000, Inc., WIPO

Case No. D2000-0441 (July 13, 2000); The Nasdaq Stock market, Inc. v.

NSDAQ.COM, NASDQ.COM and NASAQ.COM, WIPO

Case No. D2001-1492 (February 27, 2002); Playboy Enterprises v. Movie

Name Company, WIPO Case No. D2001-1201

(February 26, 2002); Façonnable SAS v. Names4sale, WIPO

Case No. D2001-1365 (February 18, 2002); Red Bull GmbH v. Grey Design,

WIPO Case No. D2001-1035 (October 24, 2001);

Wachovia Corporation v. Peter Carrington, WIPO

Case No. D2002-0775 (October 2, 2002).

13. See Rádio Globo S.A. v. Diogo

Pimentel, WIPO Case No. D2000-1705

(January 31, 2001).

14. See Packaging World Inc. v. Zynpak

Packaging Products Inc., Case No. AF-0233 (July 28, 2000); Educational

Testing Service v. TOEFL, WIPO Case No.

D2000-0044 (March 16, 2000); Grove Broadcasing Co. Ltd. v. Telesystems

Communications Limited, WIPO Case No.

D2000-0158 (May 9, 2000); Nicole Kidman v. John Zuccarini ,

d/b/a Cupcake Party, WIPO Case No. D2000-1415

(January 23, 2001); Commonwealth Hotels Inc. v. CCD Internet, Case No.

AF-00771 (May 17, 2001).

15. See Nicole Kidman v. John Zuccarini,

d/b/a Cupcake Party, WIPO Case No. D2000-1415

(January 23, 2001); Inter-Continental Hotels Corporation v. Khaled

Ali Soussi, WIPO Case No. D2000-0252

(July 5, 2000); Electronic Commerce Media Inc. v. Taos Mountain, Case

No. FA0008000095344 (October 11, 2000); Universal City Studios Inc. v. G.A.B.

Enterprises, WIPO Case No. D2000-0416

(June 29, 2000); Springsteen v. Burgar, WIPO

Case No. D2000-1532 (January 25, 2001); Credit Suisse Group

v. Milanes-Espinach, Fernando and Milanes-Espinach, SA, WIPO

Case No. D2000-1376 (March 20, 2001); See also Ingram Micro Inc.

v. Noton Inc., WIPO Case No. D2001-0124

(March 6, 2001); Do The Hustle, LLC v. Tropical Web, WIPO

Case No. D2000-0624 (August 21, 2000).

16. See also Bayerische Motoren Werke

AG v. bmwcar.com, WIPO Case No. D2002-0615

(August 27, 2002).

17. See e-Duction Inc. v. Zuccarini,

WIPO Case No. D2000-1369 (February 5,

2001); World Wrestling Entertainment v. Michael Bosman, WIPO

Case No. D1999-0001 (January 14, 2000); Sporoptic Pouilloux S.A. v. William

H. Wilson, WIPO Case No. D2000-0265

(June 16, 2000); Audiopoint Inc. v. eCorp., WIPO

Case No. D2001-0509 (June 14, 2001); A Prompt Corporation v. Aprompt

Computers Inc., Case No. AF-00816 (June 18, 2001); A & F Trademark

Inc. v. Justin Jorgensen, WIPO Case No.

D2001-0900 (September 19, 2001).

18. See Wal-Mart Stores Inc. v. wallmartcanadasucks.com,

WIPO Case No. D2000-1104 (November 23, 2000).

19. See Telstra Corporation Limited

v. Nuclear Marshmallows, WIPO Case No.

D2000-0003 (February 18, 2000); The Chancellor, Masters and

Scholars of the University of Oxford v. DR Seagle t/a Mr. Oxford-University,

WIPO Case No. D2001-0746 (August 14, 2001);

The Bruce Trail Association v. Andrew Camp and Bruce Trail Enterprises,

WIPO Case No. D2001-1021 (October 12,

2001); A & F Trademark Inc. v. Justin Jorgensen, WIPO

Case No. D2001-0900 (September 19, 2001); Vivendi Universal v. Jay David

Sallen, WIPO Case No. D2001-1121 (November

7, 2001).

20. See Tourism and Corporate Automation

Ltd. v. TSI Ltd., Case No. AF-0096 (March 16, 2000); Educational Testing

Service v. Netkorea Co., WIPO Case No.

D2000-0087 (April 4, 2000); Telstra Corporation Limited v. Nuclear Marshmallows,

WIPO Case No. D2000-0003 (February 18,

2000); Bloomberg L.P. v. David Cohen, Case No. FA01020000096600 (February

19, 2001).

21. See Parfums Christian Dior v. 1

Netpower, Inc., WIPO Case No. D2000-0022

(March 3, 2000); Cardservice International Inc. v. Webster R. McGee,

950 F.Supp. 737 (E.D. Va. 1997); aff'd 129 F.3d 1258 (4th Cir. 1997).

See also Green Products Co. v. Independence Corn By-Products Co., 992

F.Supp. 1070 (N.D. Iowa 1995); Brookfield Communications Inc. v. West Coast

Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999); British Telecommunications

plc v. One In A Million Ltd., [1997] E.W.J. No. 1599 (H.C.), aff'd, [1998]

4 All E.R. 476 (C.A.); TCPIP Holding Company Inc. v. Haar Communications

Inc. 244 F. 3d 88 (2nd Cir. 2001); Ford Motor Company v. Ford Financial

Solutions Inc. 103 F. Supp. 2d 1126 (N.D. Iowa 2000); PACCAR Inc. v.

Telescan Technologies L.L.C., 2000 U.S. Dist. LEXIS 12857 (E.D.Mich. 2000).

22. The Vanguard Group, Inc. v. RealTimeInternet.com

Inc., WIPO Case No. D2001-0873 (September 4, 2001);

News Group Newspapers Limited and News Network Limited v. Momm Amed la,

WIPO Case No. D2000-1623 (January 18,

2001); Microsoft Corporation v. Global Net 2000, Inc., WIPO

Case No. D2000-0554 (July 25, 2000); Reuters Limited v. Global Net 2000,

Inc., WIPO Case No. D2000-0441 (July

13, 2000); The Nasdaq Stock market, Inc. v. NSDAQ.COM, NASDQ.COM and NASAQ.COM,

WIPO Case No. D2001-1492 (February 27,

2002); Playboy Enterprises v. Movie Name Company, WIPO

Case No. D2001-1201 (February 26, 2002); Façonnable SAS v. Names4sale,

WIPO Case No. D2001-1365 (February 18,

2002); Red Bull GmbH v. Grey Design, WIPO

Case No. D2001-1035 (October 24, 2001); Wachovia Corporation v. Peter

Carrington, WIPO Case No. D2002-0775 (October 2,

2002).

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