1. Parties and Contested Domain Name

Overview

1.0 What is set out under this heading of "Parties and Contested Domain Names" is discussed and found herein under the heading of "Discussion and Findings" (paragraphs 5.0 through 5.5.3 hereof), by or through information set out herein under the headings of (i) "Procedural History" (paragraphs 2.0 through 2.3.1 hereof); (ii) "Factual Background" (paragraphs 3.0.1 through 3.4.4 hereof); and (iii) "Parties' Contentions'" (paragraphs 4.0.1 through 4.1.11 hereof).

The Parties

1.1 In this proceeding the parties (herein "the Parties") are (i) complainant Mr. Lyle Fuller of Calgary, Alberta Canada (herein "the Complainant"); and (ii) respondent Mr. Doug Barber of Calgary, Alberta Canada (herein "the Respondent").

The Contested Domain Names

1.2 In this proceeding the contested domain names (herein collectively "the Contested Domain Names") are (i) "fabri-lok.com" (herein "the First Contested Domain Name"); and (ii) "fabrilok.com" (herein "the Second Contested Domain Name").

2. Procedural History

Overview

2.0 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 through 5.5.3 hereof) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or t hrough one or more of admission, notice, perception and inference) any of the information set out in paragraphs 2.1.1 through 2.3.1 hereof.

Events That Occurred On Or Before 2 October 2000

2.1.1 On 19 September 2000 eResolution (herein "the Provider") provided the Administrative Panel a procedural history of this proceeding, largely as set out as paragraphs 2.1.2 through 2.1.15 hereof.

2.1.2 The Complainant's complaint (herein "the Complaint") was (i) filed with the Provider in electronic format on-line using the Provider's complaint form through the Provider's website on 25 July 2000; and (ii) received by the Provider in hardcopy form at on 26 July 2000. The choice of jurisdiction was received on 11 August 2000. Payment was received on 22 August 2000.

2.1.3 Upon receiving all the required information, the Provider proceeded to (i) confirm the identity of the one or more registrars for the Contested Domain Names; (ii) verify each registrar's Whois Database and confirm all the required contact informati on for the Respondent; (iii) verify if the Contested Domain Names resolved to one or more active web pages; and (iv) verify if the Complaint was administratively compliant.

2.1.4 The inquiry set out in paragraph 2.1.3 hereof lead the Provider to the following conclusions: (i) the registrar for the Contested Domain Names is Network Solutions, Inc. (herein "the Registrar for the Contested Domain Names"); (ii) the Whois datab ase contains all the required contact information; (iii) the Contested Domain Names resolve to one or more active web pages; and (iv) the Complaint is administratively compliant.

2.1.5 On 26 July 2000 an e-mail was sent by the Provider, to the Registrar for the Contested Domain Names, to obtain a copy of the registration agreement between the Respondent and the Registrar for the Contested Domain Names. On 27 July 2000 the reques ted information was received by the Provider.

2.1.6 On 8 August 2000, by telephone (i) the Respondent contacted the Provider to request information about process; and (ii) the requested information was provided to the Respondent by the Provider.

2.1.7 The Provider proceeded to send to the Respondent a copy of the Complaint in accordance with Rule 2(a) of ICANN's Rules for Uniform Domain Name Dispute Resolution Policy (herein individually "Rule" or collectively "Rules").

2.1.8 The Provider fulfilled all its responsibilities under Rule 2(a) in connection with forwarding the Complaint to the Respondent on 24 August 2000. That date is the commencement date of this administrative proceeding (herein "this proceeding").

2.1.9 On 24 August 2000, the Provider notified the Complainant, the Respondent, the Registrar for the Contested Domain Names, and ICANN of the date of commencement of this proceeding.

2.1.10 All the e-mail sent to the Respondent's various e-mail addresses was received, except the ones to the postmasters' addresses. The official notification sent by mail was received, according to the Canada Post's tracking system, only for one of the two addresses where it was sent. According to that tracking system, the delivery to the second address was attempted and a card was left advising the recipient that the delivery was attempted. Finally, fax transmission to the Respondent was received.

2.1.11 On 14 September 2000, the Provider notified the Respondent and the Complainant (i) of the failure of the Respondent to respond to the Complaint; and (ii) that according to Rule 5(e) "If a Respondent does not submit a response, in the absence of ex ceptional circumstances, the Panel shall decide the dispute based upon the complaint."

2.1.12 On 15 September 2000, the Provider contacted Mr. Rodney C. Kyle and requested that he act as the panel in this proceeding.

2.1.13 On 18 September 2000, Mr. Rodney C. Kyle accepted to act as the panel in this proceeding (herein "the Administrative Panel") and filed with the Provider a declaration of independence, and of impartiality, on the Provider's form for such in accorda nce with Rule 7 and Supplemental Rules 9 and 4(a) of the Provider's Supplemental Rules (herein individually "Supplemental Rule" or collectively "Supplemental Rules").

2.1.14 On 19 September 2000, the Complainant and the Respondent were notified, by the Provider, that the Administrative Panel had been appointed and that a decision was to be, save exceptional circumstances, handed down on 2 October 2000.

2.1.15 The Provider forwarded to the Administrative Panel by e-mail on 19 September 2000 a user name, and by telephone on 20 September 2000 a password, to allow the Administrative Panel to access an automated docket management system for this proceeding on the Provider's website.

2.1.16 On 2 October 2000 in accordance with the Policy, and in accordance with the Rules and the Supplemental Rules (herein all three, in addition to forms made under the Supplemental Rules, collectively "the Regulation"), and particularly in accordance with Policy section 4(e), Rules 2, 6(f), 8, 10(c) and 15(b) and Supplemental Rules 3(a), 3(b) and 4, the Administrative Panel sent an e-mail to the Provider, and to the Complainant and the Respondent. That e-mail was as follows: "Subject: Domain Name Di spute Case AF-0294 Regarding 'fabri-lok.com' and 'fabrilok.com' ¦ Date: Mon, 02 Oct 2000 23:44:16 -0400 ¦ From: 'Rodney C. Kyle' ¦ Organization: Lawyer, Arbitrator & Trade Mark Agent ¦ To: clerk's office, complainant, respondent ¦ Dear Ms. Letourneau, Mr. Fuller & Mr. Barber: ¦ A deadline of 2 October 2000 had been fixed for the Administrative Panel to communicate its decision on the complaint to the Clerk's office of eResolution. However, in view of exceptional circumstances and since the Administr ative Panel considers a one week extension of that deadline necessary for the Administrative Panel to be able to fulfill its duties adequately, the Administrative Panel hereby extends that deadline to 9 October 2000. ¦ Sincerely, ¦ Rodney C. Kyle ¦ Adm inistrative Panel".

Events That Occurred After 2 October 2000 But Before 9 October 2000

2.2.1 On 4 October 2000 the Administrative Panel opened a two-part e-mail dated 4 October 2000 sent, by the Respondent, to the Administrative Panel. The first part was as follows: "Subject: RE: Domain Name Dispute Case AF-0294 Regarding 'fabri-lok.com' and 'fabrilok.com' ¦ Date: Wed, 4 Oct 2000 16:21:02 -0600 ¦ From: 'Douglas W. Barber' ¦ To: 'Rodney C. Kyle' ¦ Thank you for your extension. I have considered the matter carefully and read the mis-leadings again of Mr. Fuller. Reading the rulings of ICAAN and briefly talking to Ms. Letournou, it appears obvious that Mr. Fuller's action to register 'fabrilok' as a Canadian trade mark, he will be granted rights to the .com rights to that name. ¦ For the record, Ihad formerly been associated with Mr. F uller and his former partner Floyd Baslow of New York under the tradename 'fabritrak', a track product for installation of fabric decorative, acoustic and tackable wall panels. This system uses a self closing, inter-locking jaw to secure the fabric in pl ace. Having been notified by Mr. Fuller of the cancellation of my distributorship with 'fabritrack' and having developed a very good market in Alberta, I set out on my own, with a similar and improved product. To identify my product with a trademark ide ntity, I put together several variations of fabric (fabric, fabri, fabra, fab), acoustic (acoustic, acousti, acousta, acoust), track (track, trak, trac), lock (lock, lok, loc) and wall (wall) for a new trade mark and identity for my new product. I am con fident you see the possibilities. ¦ Mr. Fuller was fully aware of my intentions and activities (we were next-door neighbours in the same building). In the course of winding up mutual business together, I discussed with him my final preferences for a tra de name. They were variations of 'fabric-lock' (fabri or fabra and lok or loc, hypens optional), 'acoustic-track' (acousta or acousti and trak or trac, again hypens optional) and 'acoustic-fabric' (acousta, acousti and fab, again hyphens optional. He t old me that he and Baslow (owner of the fabritrak trade mark) would vigourously oppose the fabric-lock variations being too close to 'fabritrak'. As the too major competitors to me would be 'fabritrak' and 'fabrawall', I later decided my best option woul d be 'acousti-trac' and registered it as a Canadian trade mark. ¦ Mr. Fuller was very much aware that I was to be his competitor and of my trade name aspirations and exactly what those names were, at the time he dissolved and we were winding up our busin ess relationship. I was suprised to see that when he and Baslow dissolved their business relationship a few years later, Mr. Fuller registered 'fabrilok', a name I had presented to him, as his new trade name. ¦ Since Mr. Fuller has registered and is in possesion of the trade name "fabrilok", which I identified for him, I assume your ruling will come down in favour of Mr. Fuller. I therefore not contest Mr. Fuller in this matter. I have no inclination to retain cousel and actively contest this matter. Your panel's ruling will be abided by myself and Fabric/cations Ltd. ¦ Douglas W. Barber ¦ Fabric/cations Ltd. ¦ ACOUSTI-TRAC A Registered Trademark". The second part was, under the heading of "Original Message", a copy of the e-mail set out in parag raph 2.1.16 hereof.

Events That Occurred On Or After 9 October 2000

2.3.1 On 9 October 2000, in accordance with the Regulation (and particularly in accordance with Policy section 4(e), Rules 2, 6(f), 8, 10(c) and 15(b) and Supplemental Rules 3(a), 3(b) and 4), the Administrative Panel e-mailed the Provider, for partial f orwarding to the Complainant and the Respondent. That e-mail was as follows: "Subject: Domain Name Dispute Case AF-0294 Regarding 'fabri-lok.com' and 'fabrilok.com' ¦ Date: Mon, 09 Oct 2000 23:47:05 -0400 ¦ From: "Rodney C. Kyle" ¦ Organization: Lawye r, Arbitrator & Trade Mark Agent ¦ To: clerk's office ¦ Dear Ms. Letourneau: ¦ I refer you to your e-mail to me of 4 October i.e. that "the Clerk's Office would appreciate, for future reference, that [I] do not contact the Parties directly. If [I] need to communicate with the Parties, send [my] email to the Clerk's Office, and the Clerk's Office will take great care of sending it to the Parties." As a result of that e-mail, and in view of the second paragraph of this e-mail (set out below), please (i) e-mail that second paragraph to the Parties; and (ii) advise the Parties that on 9 October 2000 the Administrative Panel (a) e-mailed that second paragraph to the Clerk's Office and (b) requested to the Clerk's Office that the Clerk's Office send it to t he Parties. ¦ A deadline of 9 October 2000 had been fixed for the Administrative Panel to communicate its decision on the complaint to the Clerk's office of eResolution. However, in view of exceptional circumstances (including but not limited to the Res pondent's 4 October 2000 e-mail to the Administrative Panel) and since the Administrative Panel considers a one week extension of that deadline necessary for the Administrative Panel to be able to fulfill its duties adequately, the Administrative Panel hereby extends that deadline to 16 October 2000. ¦ Sincerely, ¦ Rodney C. Kyle ¦ Administrative Panel". On 10 October 2000 by e-mail the Provider informed the Administrative Panel that the Provider had by e-mail forwarded to the Parties that second paragraph as a message from the Admin istrative Panel.

3. Factual Background

Overview

3.0.1 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 through 5.5.3 hereof) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or through one or more of admission, notice, perception and inference) any of the information set out in paragraphs 3.0.2 through 3.4.4 hereof.

3.0.2 In this proceeding, the factual background includes that the automated docket management system on the Provider's website includes, respectively through a series of links for the Complaint's form and a series of links for annexed documents, what ap pear to be (i) under the heading of "Complaint Form", the Complaint's form (bearing the time and date of 19:35:33 on 25 July 2000 (i.e."7:35:33 PM (GMT-5)", which apparently is Greenwich Mean Time less five hours, on "25/7/2000"); and (ii) under the headi ng of "Complete List of Annexed Documents", a list of documents annexed to the Complaint's form. The list, and the Complaint's form, indicate that the documents were made part of the Complaint by being annexed to the Complaint's form by the Provider on 1 August 2000 (i.e. a nominate schedule of annex documents and herein "Annex A", "Annex B") or by the Complainant on 25 July 2000 (i.e. as the contents referred to in the Complaint's form, in close-up and spread over several documents, of Annex A and of An nex B). Annex A appears to be a copy of a two-page document from "Consumer and Corporate Affairs Canada" (herein "the Trade-mark Registration Certificate"). Annex B appears to be a copy of each of three documents: (i) a two-page brochure (herein "the F irst Brochure"); (ii) a first four-page brochure (herein "the Second Brochure"); and (iii) a second four-page brochure (herein "the Third Brochure").

3.0.3 In this proceeding, the factual background also includes that the automated docket management system on the Provider's website includes, (i) both through a series of links for a response form and through a series of links for annexed documents, the statement, under the heading of "Response Form", "Response Form not yet submitted."; and (ii) and through a series of links for annexed documents, the statement, under the heading of "Other Documents", "No Other Documents attached to this case."

The Trade-mark Registration Certificate

3.1.1 The Trade-mark Registration Certificate first page appears to bear the "Date" of "APR 10 1992" and the signature of the Canadian "Registrar of Trade-marks" as to "Trade-marks, CERTIFICATE OF REGISTRATION 396975" (i) certifying that "the trade-mark identified in the attached extract from the register of trade-marks has been registered as appears therefrom, and that the said extract is a true copy of the record of its registration."; and (ii) stating that "In accordance with the provisions of the Tra de-marks Act, this trade-mark is subject to renewal every 15 years from the registration date shown on the attached extract."

3.1.2 The Trade-mark Registration Certificate second page appears to include an extract from the Canadian register of trade-marks showing that (i) from application "661 420" filed 22 June 1990 there resulted "REGISTRATION ... 396,975" on 10 April 1992 to "REGISTRANT: LYLE W. FULLER, 35 BOW VILLAGE CRESCENT NORTH WEST, CALGARY, ALBERTA T3B 4X1" for the "TRADE MARK: FABRI-LOK" in association with "WARES: (1) Fabric retaining channel track used for applying fabric over walls or other vertical and horizon tal surfaces without having to bond it to the surface."; and (ii) "Declaration of use filed 26 FEB 1992 on wares."

The First Brochure

3.2.1 The First Brochure first page includes (i) in approximately the middle of the page, "FABRI-LOK¨ UPHOLSTERED WALL SYSTEM"; (ii) approximately three-quarters of the way down the page, "FABRI-LOK SYSTEMS provide" and "The Manufacturer, The GWP Wallwor ks Group Inc. offers a complete 'Solutions' approach by manufacturing and providing, Track Systems and Premanufactured Panels in a wide variety of modes for Residential, Commercial and Industrial applications."; and (iii) across the bottom of the page, "W ALLWORKS Phone: Fax: Internet: E-mail: Calgary Vancouver Toronto Hong Kong".

3.2.2 The First Brochure second page includes two columns of text the left-hand column of which (i) is headed "FABRI-LOK¨ System"; (ii) has under the heading "GENERAL" and sub-heading "Scope of Work", "Supply and Install FABRI-LOK upholstered wall system as manufactured by GWP Wallworks Group Inc., Calgary, Alberta Canada (Phone, Fax) and as required by contract documents."; (iii) has eight lines later under the sub-heading "Quality Assurance", "The Installation work of this section shall be performed by an authorized Installer/Dealer certified by the manufacturer."; (iv) has approximately one-quarter of the way down the page, under the heading "PRODUCTS" and sub-heading "System Description", "The system shall consist of site installed and fabricated, co ncealed FABRI-LOK (system as manufactured by GWP Wallworks Group Inc., Calgary, Alberta Canada (Phone, Fax)"; (v) has a few lines farther on still, under the sub-heading "System Components", "Fabric: FABRI-LOK¨"; (vi) has approximately two-thirds of the way down the page, under the heading "EXECUTION" and thereunder (a) the sub-heading "Installation", "FABRI-LOK" (two occurrences) and (b) the sub-heading "Cleaning and Protection", "FABRI-LOK"; and (vii) has approximately one-third of the way done the pag e, under the heading "PRODUCTS", "NOTE: GWP Wallworks group carries fabric from several manufacturers in a variety of patterns and colours. Please call to discuss fabric selection." and approximately five lines later under "OPTIONAL", "Fabric treatment: 'FABRI-PEL Treatment' Site applied proprietary protective ...".

The Second Brochure

3.3.1 The Second Brochure first page includes in the bottom right-hand corner, "FABRI-LOK¨ UPHOLSTERED WALL SYSTEM".

3.3.2 The Second Brochure second page includes three columns of text with (i) in the left-most column (a) at the top thereof, under the heading "THE SYSTEM", immediately thereafter, "The FABRI-LOK¨ Upholstered Wall System" and, as the last sentence under that heading, "A proprietary affixing tool inserts the fabric ...", (b) approximately half way down the column, immediately after the heading "DESIGN ADVANTAGES", "The FABRI-LOK¨ System" and (c) six lines from the bottom of the column, "The FABRI-LOK¨ Sy stem"; (ii) in the central column (a) immediately after the heading "FABRIC SELECTION", "The FABRI-LOK¨ System" and (b) immediately after the heading "ACOUSTIC AND INSULATION", "The FABRI-LOK¨ framework"; and (iii) in the right-most column (a) under the h eading "WALL OBSTACLES NO PROBLEM", "the FABRI-LOK¨ System" and, as the last sentence under that heading, "Consult your representative for details.", (b) under the heading "LOW MAINTENANCE AND CHANGEABILITY", "FABRI-LOK¨" and (c) immediately after the hea ding "INSTALLATION TECHNIQUES", "The FABRI-LOK¨ System's".

3.3.3 The Second Brochure third page includes three columns of text with (i) in the central column, under the heading "THERMAL QUALITIES" (a) "The FABRI-LOK¨ System" and (b) five lines farther on, "FABRI-LOK¨ System"; and (ii) in the right-most column (a ) the heading "FABRI-LOK¨ PROFILES", (b) the heading "FABRI-LOK¨ SPACERS" and, under that heading, "Consult your FABRI-LOK¨ representative for 'best use' of profile combinations." and (c) at the bottom of the column, "LICENSED INSTALLERS: For authorized representatives in your area contact FABRI-LOK."

3.3.4 The Second Brochure fourth page includes three columns of text and two footers, with (i) in the left-most column under the heading "SPECIFICATIONS: PART 1 - GENERAL" (a) under the sub-heading "SCOPE", "FABRI-LOK¨", (b) under the sub-heading "QUALI TY ASSURANCE", "The installation work of this Section shall be performed by an authorized installation dealer licensed by the manufacturer, and shall be certified as such" and (c) under the sub-heading "PART 2 - PRODUCTS", "FABRI-LOK¨ System"; (ii) in the central column (a) at the top, "For authorized licensed installation company in your area contact: FABRI-LOK¨ ", (b) approximately four lines down from that and then twenty-seven lines down from that, "FABRI-LOK¨" (two occurrences in total) and (c) as s ub-item 9, "Fabric Treatment: OPTIONAL -- site applied proprietary protective finish to improve ..."; (iii) in the right-most column (a) under the heading "INSTALLATION", in item "B" and in item "C", "FABRI-LOK¨" (two occurrences in total) and (b) under the heading "CLEANING AND PROTECTION", in item "B", "FABRI-LOK¨"; (iv) in the one of the footers at the bottom of the left-most column, "Dealer: The GWP Wallworks Group Inc. address"; and (v) in the one of the footers at the bottom of the other two colu mns, "Manufacturer: FABRI-LOK¨, address FABRI-LOK¨ is a registered trademark".

The Third Brochure

3.4.1 The Third Brochure first page includes in the bottom right-hand corner, "FABRI-LOK¨ UPHOLSTERED WALL SYSTEM".

3.4.2 The Third Brochure second page includes three columns of text with (i) in the left-most column (a) at the top thereof, under the heading "THE SYSTEM", immediately thereafter, "The FABRI-LOK¨ Upholstered Wall System" and, as the last sentence under that heading, "A proprietary affixing tool inserts the fabric ...", (b) approximately half way down the column, immediately after the heading "DESIGN ADVANTAGES", "The FABRI-LOK¨ System" and (c) six lines from the bottom of the column, "The FABRI-LOK¨ Sys tem"; (ii) in the central column (a) immediately after the heading "FABRIC SELECTION", "The FABRI-LOK¨ System" and (b) immediately after the heading "ACOUSTIC AND INSULATION", "The FABRI-LOK¨ framework"; and (iii) in the right-most column (a) under the he ading "WALL OBSTACLES NO PROBLEM", "the FABRI-LOK¨ System" and, as the last sentence under that heading, "Consult your representative for details.", (b) under the heading LOW MAINTENANCE AND CHANGEABILITY", "FABRI-LOK¨" and (c) immediately after the headi ng "INSTALLATION TECHNIQUES", "The FABRI-LOK¨ System's".

3.4.3 The Third Brochure third page includes three columns of text with (i) in the central column, under the heading "THERMAL QUALITIES" (a) "The FABRI-LOK¨ System" and (b) five lines farther on, "FABRI-LOK¨ System"; and (ii) in the right-most column (a) the heading "FABRI-LOK¨ PROFILES", (b) the heading "FABRI-LOK¨ SPACERS" and, under that heading, "Consult your FABRI-LOK¨ representative for 'best use' of profile combinations." and (c) at the bottom of the column, "LICENSED INSTALLERS: For authorized r epresentatives in your area contact FABRI-LOK¨."

3.4.4 The Third Brochure fourth page includes three columns of text and two footers, with (i) in the left-most column under the heading "SPECIFICATIONS: PART 1 - GENERAL" (a) under the sub-heading "SCOPE", "FABRI-LOK¨", (b) under the sub-heading "QUALIT Y ASSURANCE", "The installation work of this Section shall be performed by an authorized installation dealer licensed by the manufacturer, and shall be certified as such" and (c) under the sub-heading "PART 2 - PRODUCTS", "FABRI-LOK¨ System"; (ii) in the central column (a) at the top, "For authorized licensed installation company in your area contact: FABRI-LOK¨ ", (b) approximately four lines down from that and then twenty-seven lines down from that, "FABRI-LOK¨" (two occurrences in total) and (c) as su b-item 9 "Fabric Treatment: OPTIONAL -- site applied proprietary protective finish to improve ..."; (iii) in the right-most column (a) under the heading "INSTALLATION", in item "B" and in item "C", "FABRI-LOK¨" (two occurrences in total) and (b) under th e heading "CLEANING AND PROTECTION", in item "B", "FABRI-LOK¨"; (iv) in the one of the footers at the bottom of the left-most column, "Dealer: "; and (v) in the one of the footers at the bottom of the other two columns, "Manufacturer: FABRI-LOK address FABRI-LOK¨ is a registered trademark".

4. Parties' Contentions

Overview

4.0.1 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 through 5.5.3 hereof) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or through one or more of admission, notice, perception and inference) any of the information set out in paragraphs 4.0.2 through 4.1.11 hereof.

4.0.2 As indicated by paragraphs 2.1.1 through 2.1.16 hereof, and by the references to "the Complaint's form" in paragraph 3.0.2 hereof, in this proceeding the Complainant's contentions are in the Complaint's form.

4.03 As indicated by paragraphs 2.1.1 through 2.1.16 hereof, and more particularly paragraphs 2.1.8 through 2.1.11 hereof, as well as by paragraph 3.0.3 hereof, in this proceeding there are no Respondent's contentions.

The Complainant's Contentions

4.1.1 The Complaint's form includes the Complainant's contentions in sections 2(a), 2(b), 2(c), 2(d) and 2(e) which are to the effect that the name and contact information of the Complainant are as set out in paragraph 1.1 item "(i)" hereof.

4.1.2 The Complaint's form includes the Complainant's contentions in sections 3(a), 3(b), 3(c) and 3(e) which are to the effect that the name and contact information of the Respondent are as set out in paragraph 1.1 item "(ii)" hereof.

4.1.3 The Complaint's form includes the Complainant's contentions in section 3(d) which are to the effect that the name and contact information of the Respondent's "Technical Contact" are the "Hostmaster" of "Cybersurf Corp." at "Registrar's Account Numb er HO67-ORG", e-mail address, phone and fax.

4.1.4 The Complaint's form includes the Complainant's contentions in section 4(a) which are to the effect that the Contested Domain Names are as set out in paragraph 1.2 items "(i)" and "(ii)" hereof and that the Registrar for the Contested Domain Names is as set out in paragraph 2.1.4 hereof.

4.1.5 The Complaint's form includes the Complainant's contentions in section 4(b) regarding the "Mark in Question" i.e. that since the Complainant was directed by the Provider's form to "Specify the trademark(s) or service mark(s) on which the complaint is based and, for each mark, describe the goods or services, if any, with which mark is used. For each mark, please identify countries involved and make suitable references to the registration certificates (if any) included in the paper annexes you are se nding us." that "FABRI-LOK (FABRILOK) 1.FABRI-LOK is a registered trademark which has been in full use and effect in Canada and USA from it's registration in 1992.Attached is copy of the registration made in Canada, filed June 22, 1990 and received as sta mped April 10, 1992."

4.1.6 The Complaint's form includes the Complainant's contentions in section 4(b) regarding "Other goods and services" i.e. that since the Complainant was directed by the Provider's form that "You may also separately describe other goods and services wit h which you intend, at the time the complainant is submitted, to use the mark in the future." that "FABRI-LOK (FABRILOK) 1. Registered Trademark in full use and effect from it's registration date. Filed June 22, 1990, registration dated April 10, 1992. Se e attached 2 pages for copy of registration. 2. Description of Product associated with Trademark: '(1) Fabric retaining channel track used for applying fabric over walls or other vertical and horizontal surfaces without having to bond it to the surface.' 3. Copy of brochures used in conjunction with sales of product. These in use since 1992 and forward. 1 - 4 pg., 1-4 pg., 1-2 pg."

4.1.7 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Copy or Similarity" i.e. that since the Complainant was directed by the Provider's form to "Describe the manner in which the domain name(s) is/are identical or c onfusingly similar to a trademark or service in which the Complainant has rights:" that "1. FABRI-LOK The Domain Name uses and is an exact copy of our Trademark. 2. FABRILOK The Domain Name is also a copy of our Trademark without the dash(-) mark between the words Fabri and Lok and is obviously confusingly similar."

4.1.8 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Illegitimacy" i.e. that since the Complainant was directed by the Provider's form to "Describe why the Respondent/Domain-name holder should be considered as havi ng no rights or legitimate interests in respect to the contested domain name:" that "1. Registrant has had prior knowledge of the existance of the registered Trademark and it's use on brochures and other materials from being in direct competition with the Trademark holder (Fuller), selling similar products for approximately 20 years. 2. Registrant has not before ever used or claimed rights to the registered Trademark to our knowledge. 3. As the Registrant is personally known to the registered Trademark ho lder (Fuller) it is believed and understood that the Registrant has made this registration to spitefully inconvenience the registered Trademark holder (Fuller) and to prevent him from rightfully registering his Trademark on the Internet."

4.1.9 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Bad Faith" i.e. that since the Complainant was directed by the Provider's form to "Describe why the contested domain name should be considered as having been reg istered and being used in bad faith:" that "1. Registrant is a long time (approx. 20 yrs.) direct competitor of the Trademark holder (Fuller) who has copied many of the products currently being marketed legitimately as FABRI-LOK by Fuller, and is possibl y attempting to gain or increase sales for his products by purporting his products to be as FABRILOK or equal to FABRILOK. 2. Registrant is personally known to the Trademark holder (Fuller) and has prior knowledge of the existence of the registered Trade mark from brochure, binders and other information which he has seen and obtained in the normal course of business."

4.1.10 The Complaint's form includes the Complainant's contentions in section 4(d) regarding "Remedies Sought:", "Transfer to complainant".

4.1.11 The Complaint's form includes the Complainant's contentions in section 4(d) regarding "Other Proceedings" that "A registered letter has been forwarded to Doug Barber at his indicated address requesting that he cease and desist use of the Trademark and a request has been made that he transfer the domain registration to the Trademark holder. No response has been received to date."

5. Discussion and Findings

Overview

5.0 There are five main segments, "1", "2", "3", "4" and "5", under this heading of "Discussion and Findings". Those segments are as to: (1) procedural matters that arose on or before 2 October 2000; (2) substantive matters; (3) procedural matters that arose after 2 October 2000 but before 9 October 2000; (4) procedural matters that arose on or after 9 October 2000; and (5) summary, and consequences, of segments "1", "2", "3" and "4".

(1) PROCEDURAL MATTERS THAT AROSE ON OR BEFORE 2 OCTOBER 2000

5.1.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.1.1 through 2.1.16 hereof. The sense in which the Administrative Panel adopts that information is of finding (i) as fact the matters of fact therein; (ii) as law the matters of law therein; and (iii) as legal relations the matters of legal relations therein.

5.1.2 In view of, but not limited to, paragraph 5.1.1 hereof, the Administrative Panel adopts, absolutely, all of the information set out in paragraph 4.0.2 hereof and in paragraphs 4.1.1 through 4.1.11 hereof. The sense in which in this segment the Adm inistrative Panel adopts that information is of finding that the Complainant's contentions have been made by submitting a complaint in accordance with the Regulation, though not necessarily that the Complainant's contentions are true. More particularly, the Administrative Panel finds that as part of submitting such a complaint (i.e. the Complaint) the Complainant has made the contentions set out in paragraphs 4.1.5, 4.1.6, 4.1.7, 4.1.8 and 4.1.9 hereof.

5.1.3 Particularly in view of paragraphs 5.1.1 and 5.1.2 hereof, the Administrative Panel finds that, in respect of each of the Contested Domain Names, the Complainant has asserted to the Provider, in compliance with the Regulation, that (i) the Responde nt's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the domain name; and (iii) the Respondent's domain name ha s been registered and is being used in bad faith.

5.1.4 The Administrative Panel finds that the paragraph 5.1.3 items "(i)", "(ii)" and "(iii)" hereof respectively correspond to Policy section 4(a)'s elements "(i)", "(ii)" and "(iii)" as read in view of the set of three notes preambulatory of the Policy (herein "the Notes").

5.1.5 By the preamble of Policy section 4 and the preamble of Policy section 4(a), both as read in view of the Notes, Policy section 4 "sets forth the type of disputes for which [the Respondent is] required to submit to a mandatory administrative proceed ing" and which, in view of paragraph 5.1.4 hereof, "will be conducted before [the Provider]".

5.1.6 The Administrative Panel adopts, absolutely, all of the information set out in paragraph 4.0.3 hereof. The sense in which in this segment the Administrative Panel adopts that information is of finding that by not submitting a response in accordanc e with the Regulation the Respondent did not lawfully make any contentions. (In that regard, the Administrative Panel notes Rule 14(b) whereby "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.") More particularly, in view of Rule 5(a) and paragraph 5.1.1 hereof, and, still more particularly, in view of the Administrati ve Panel's adoption of paragraphs 2.1.8 through 2.1.11 hereof through paragraph 5.1.1 hereof, the Administrative Panel has found that the time limit for the Respondent to have submitted a response was the Rule 5(a) time limit of 14 September 2000. In tur n, the Administrative Panel finds that there is no indication that under Rule 5(d) that deadline of 14 September 2000 was extended or even that any process was started to effect such an extension. Consequently, although by Rule 10(c) "The Panel ... may, ... on its own motion, extend, in exceptional cases, a period of time fixed by [the] Rules or by the Panel.", and although by Supplemental Rule 3(a) "the Panel may at its own discretion ... extend any time limit if it considers such an extension necessary for it to be able to meet its duties adequately" provided that in accordance with Supplemental Rule 3(b) the Administrative Panel "immediately advise[s] the Clerk's office and the Parties of such an extension", four points should be noted.

5.1.7 Firstly, in view of paragraphs 2.1.12 and 2.1.13 hereof, which have been adopted through paragraph 5.1.1 hereof, the prospective Administrative Panel was not initially contacted by the Provider, and the actual Administrative Panel was not appointed , until after the Rule 5(a) time limit of 14 September 2000 had expired.

5.1.8 Secondly (as per e.g. the definitions of "Extend", "Extended" and "Extension" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 523 and in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (19 80) at 402), to extend is to draw out, to be extended is to be drawn out, and an extension ordinarily implies the existence of something to be extended.

5.1.9 Thirdly, in respect of the Administrative Panel the ordinary implication referred to in paragraph 5.1.8 hereof applies to Rule 10(c) and to Supplemental Rules 3(a) and 3(b) since neither expressly nor implicitly do Rule 10(c) or either of Supplemen tal Rules 3(a) and 3(b) provide otherwise. In that regard, Rule 10(c) and Supplemental Rules 3(a) and 3(b) markedly differ from other dispute resolution rules such as rules 3(3), and 29(1)(f), of the British Columbia International Commercial Arbitration Center (herein "BCICAC") which expressly provide for time limits to be extended "at any time"; even that BCICAC rule wording is less clear than it could be as to reversing the ordinary implication since clearer rule wording to reverse the ordinary implica tion would provide that e.g. "a time limit may be extended at any time, whether before or after the expiry of that time limit". No such wording, at whatever degree of clarity, is expressed or implied in or by either or both of Rule 10(c) and Supplemental Rules 3(a) and 3(b) in respect of the Administrative Panel. Rather, Rule 10(c) and Supplemental Rules 3(a) and 3(b) do not confer a legal power on the Administrative Panel to retroactively or retrospectively "extend" a Rule 5(a) time limit. So, once th e Rule 5(a) time limit of 14 September 2000 expired (i.e. at the end of 14 September 2000), that time limit no longer existed and was therefore no longer available to be extended by the Administrative Panel.

5.1.10 Fourthly, therefore, and in conclusion as to these four points, in this proceeding there were and are no lawfully made contentions by the Respondent in the sense that (i) no response was submitted before the expiry of the 14 September 2000 time li mit; and (ii) the Administrative Panel has never had, does not now have, and can never have, a legal power to extend that Rule 5(a) time limit of 14 September 2000 for submitting a response; so (iii) there has not been, is not now, and can never be, an ex tension, by the Administrative Panel, of the Rule 5(a) time limit of 14 September 2000 for submitting a response.

5.1.11 Moreover, whether or not the Administrative Panel has erred in the conclusion set out in paragraph 5.1.10 hereof, there are three points about the background to, and expressed and implied provisions of, the e-mail set out in paragraph 2.1.16 hereo f. First, without limiting the generality of paragraph 5.1.1 hereof, (i) the "exceptional circumstances" referred to in that e-mail included the one day difference set out in paragraph 2.1.15 hereof, followed by initial technological difficulties of the Administrative Panel as to accessing annexed documents on the automated docket management system for this proceeding on the Provider's website; and (ii) those exceptional circumstances necessitated that one week extension from 2 October 2000 to 9 October 2000. Second, without limiting the generality of paragraph 5.1.1 hereof, the expressed and implied provisions of that e-mail were clearly dealing with extending, and indeed did extend, solely the Rule 15(b) 2 October 2000 time limit referred to in paragr aph 2.1.14 hereof (for the Administrative Panel to communicate its decision on the Complaint) rather than e.g. dealing in any sense with the Rule 5(a) 14 September 2000 time limit referred to in paragraph 2.1.11 hereof (for the Respondent to submit a resp onse to the Provider). Third, without limiting the generality of paragraph 5.1.1 hereof, the expressed and implied provisions of that e-mail did not request, or require, a communication from anyone (other than the Administrative Panel) in any sense, whet her under Rule 12 or otherwise. (By Rule 12, "In addition to the complaint and the response, the Panel may request, in its sole discretion, further statements or documents from either of the Parties.")

5.1.12 In summary, and particularly in view of paragraphs 5.1.6 through 5.1.11 hereof: whatever else the e-mailing by the Respondent set out in paragraph 2.2.1 hereof may have been or be or become (such as being within the meaning of either or both of t he Rule 15(a) expression "the statements and documents submitted" and the Rule 5(e) expression "exceptional circumstances"), in this proceeding and within the meaning of the Regulation that e-mailing was not, and is not, and cannot and will not at the ins tance of the Administrative Panel become, a "response". The Administrative Panel finds in that regard, and indeed is mindful of and has found throughout all of the Administrative Panel's involvement in this proceeding, that the Administrative Panel has c omplied with (i) Rule 10(b), which provides that "In all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case."; and (ii) Rule 15(a), which provides that "A Panel shal l decide a complaint on the basis of the statements and documents submitted and in accordance with [the] Policy, [the] Rules and any rules and principles of law it deems applicable."

5.1.13 By Rule 14(a), "In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by [the] Rules ... the Panel shall proceed to a decision on the complaint." More particularly, by Rul e 5(a), "Within twenty (20) days of the commencement of the administrative proceeding the Respondent shall submit a response to the Provider." In view of all of the above, and particularly Rules 5(a) and 14(a) and paragraph 5.1.12 hereof, in this proceed ing (i) the Respondent has not complied with the time period established by a Rule (i.e. Rule 5(a)) i.e. has not submitted a response required by that Rule; and (ii) there is "the absence of exceptional circumstances" within the meaning of that expression in Rule 14(a) in the sense of there not being in this proceeding any lawfully made indication of such exceptional circumstances, despite ample opportunity for such circumstances to have been lawfully indicated if they did indeed exist; so (iii) the Admin istrative Panel shall proceed to a decision on the complaint (and more particularly, as explained in segment "2" below, a decision based on the Complaint though, as explained in segment "3" below, not necessarily based solely on the Complaint).

(2) SUBSTANTIVE MATTERS

Overview

5.2.0.1 By Policy section 4(a), "In the administrative proceeding, the [C]omplainant must prove that each of these three elements are present": "(i) [the Respondent's] domain name is identical or confusingly similar to a trademark or service mark in whic h the [C]omplainant has rights; and (ii) [the Respondent] has no rights or legitimate interests in respect of the domain name; and (iii) [the Respondent's] domain name has been registered and is being used in bad faith."

5.2.0.2 Pursuant to Rule 15(a), and particularly in view of paragraph 5.2.0.1 hereof and in reaching a decision under Policy section 4(a), the Administrative Panel finds that: (i) in addition to the Regulation the applicable rules and principles of law particularly include (a) Trade-marks Act, R.S.C. 1985, c. T-13, as amended (herein "Trade-marks Act") and the common-law of trade marks, (b) Trade Marks Regulations, C.R.C. c. 1559, as amended (herein "Trade Marks Regulations"), (c) Interpretation Act, R. S.C. 1985, c. I-21, as amended (herein "Federal Interpretation Act"), (d) interpretation ascribes meaning whereas construction accounts for the legal significance of applying an interpretation (as per e.g. Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 734 and E.A. Driedger's Construction of Statutes (2d), Butterworths, Toronto, 1983 at 245), (e) in a proceeding a contention in a complaint against which there is no response is presumed true in the absence of any lawfully m ade indication to the contrary in the proceeding (as per e.g. the definitions of "Admissions" at 44 to 45, and especially "Pleading" at 45, as well as "Tacit admissions" at 1302, in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (19 79)) and (f) item "(e)" of this paragraph is not precluded by the Regulation and indeed is within Rule 14(b) which provides that "If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these R ules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate."; and (ii) by Rule 10(d), "The Panel shall determine the admissibility, relevance, materiality and weight of the evidence."

5.2.0.3 The applicable provisions of the Trade-marks Act, Trade Marks Regulations and Federal Interpretation Act are attached to and made part of this decision as the "ANNEX" beginning on the page that immediately follows the page bearing the signature block of this decision.

5.2.0.4 In view of paragraphs 5.2.0.2 through 5.2.0.3 hereof, and the ANNEX, the Administrative Panel finds that (i) the Complainant's contentions indicated by paragraph 4.0.2 hereof, and more particularly those set out in paragraphs 4.1.1 through 4.1.11 hereof, are contentions in a complaint against which there is no response and there being the absence of any lawfully made indication to the contrary in this proceeding are therefore presumed true; and (ii) the Federal Interpretation Act applies as to in terpreting and construing, and as to evidentiary matters regarding ,the following: (a) the Trade-marks Act, (b) the Trade Marks Regulation, (c) the Trade-mark Registration Certificate and (d) the Federal Interpretation Act itself.

Policy Section 4(a)(i)

5.2.1.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 3.0.2 through 3.4.4 hereof, such that in view of the Trade Mark Registration Certificate and the brochures (i.e. "the First Brochure", "the Second Brochure" , and "the Third Brochure"), and of the Trade-marks Act (i.e. sections 2, 4, 6(4), 6(5), 19, 20, 26(1)(a), 26(2), 40(2), 46(1), 54(1), 54(2), 54(3), 62, 63 and 65), the Trade Marks Regulations (i.e. sections 61 and 62) and the Federal Interpretation Act (i.e. sections 2(1), 2(2), 3, 10, 11, 12, 13, 15, 16, 25(1), 31, 32, 33 and 38) it is conclusively proved that each of the Contested Domain Names is identical or confusingly similar to a trade-mark in which the Complainant has rights.

5.2.1.2 In view of paragraph 5.2.1.1 hereof, the Administrative Panel finds that element "(i)" of Policy section 4(a) is proved to be present.

Policy Section 4(a)(ii)

5.2.2.1 By Policy section 4(c), in respect of each of the Contested Domain Names, "Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demon strate [the Respondent's] rights or legitimate interests to the domain name for purposes of [Policy section] 4(a)(ii): (i) before any notice to [the Respondent] of the dispute, [the Respondent's] use of, or demonstrable preparations to use, the domain na me or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the domain name, even if [the Respondent] has acquired no trademark or service mark rights; or (iii) [the Respondent is] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service ma rk at issue."

5.2.2.2 The contentions in paragraphs 4.1.8 and 4.1.9 hereof, adopted by paragraphs 5.1.2 and 5.2.0.4 hereof, are substantially the opposite of Policy section 4(c) items "(i)", "(ii)" and "(iii)" and that section's preamble. As well, in a proceeding, a contention in a complaint against which there is no response is presumed true in the absence of any lawfully made indication to the contrary in the proceeding. In this proceeding, there is the absence of any lawfully made indication to the contrary of th e contention that is made in paragraphs 4.1.8 and 4.19 hereof. The Administrative Panel therefore finds no Policy section 4(c) circumstances proved, but rather finds the opposite circumstances proved, and therefore does not find that it has been demonstr ated that the Respondent has any rights or legitimate interests to either of the Contested Domain Names for purposes of Policy section 4(a)(ii) but rather finds the Respondent does not have any rights or legitimate interests to either of the Contested Dom ain Names for the purposes of Policy section 4(a)(ii).

5.2.2.3 In view of paragraphs 5.2.2.1 through 5.2.2.2 hereof, and particularly paragraph 5.2.2.2 hereof, the Administrative Panel finds that element "(ii)" of Policy section 4(a) is proved to be present.

Policy Section 4(a)(iii)

5.2.3.1 By Policy section 4(b), in respect of each of the Contested Domain Names, "For the purposes of [Policy section] 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence o f the registration and use of a domain name in bad faith: (i) circumstances indicating that [the Respondent has] registered or [the Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the doma in name registration to the [C]omplainant who is the owner of the trademark or service mark or to a competitor of [the Complainant], for valuable consideration in excess of [the Respondent's] documented out-of-pocket costs directly related to the domain n ame; or (ii) [the Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent has] engaged in a pattern of such conduct; o r (iii) [the Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] web site or other on-line location, by creating a likelihood of confusion with the [C]omplainant's mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent's] web site or location or of a product or service on [the Respondent's] web site or location."

5.2.3.2 In this proceeding, there are no indications of circumstances within Policy section 4(b)(i).

5.2.3.3 However, by the contention set out in paragraph 4.1.8 hereof as item "3", and adopted through paragraph 5.1.2 and 5.2.0.4 hereof, there are indications of circumstances within Policy section 4(b)(ii), if the Respondent's registration of the Conte sted Domain Names (i.e. two domain names distinguished from one another only by the presence in one, and the absence in the other, of a hyphen) is "a pattern of conduct" within the meaning of that expression in Policy section 4(b)(ii); the Administrative Panel finds the Respondent's registration of the Contested Domain Names is "a pattern of conduct" within the meaning of that expression in Policy section 4(b)(ii). As well, in a proceeding, a contention in a complaint against which there is no response i s presumed true in the absence of any lawfully made indication to the contrary in the proceeding; since, in this proceeding, there is the absence of any lawfully made indication to the contrary of the contention that is made in paragraph 4.1.8 hereof as i tem "3", the Administrative Panel therefore finds Policy section 4(b)(ii) evidence of the registration and use of each of the Contested Domain Names in bad faith and that there is no evidence to the contrary. In view of the findings in this paragraph, an d of the preamble of Policy section 4(b), the Administrative Panel therefore finds conclusive evidence of the registration and use of each of the Contested Domain Names in bad faith.

5.2.3.4 Further, by the contentions set out in paragraph 4.1.8 hereof as item "3" and in paragraph 4.1.9 hereof (particularly as item "1"), and adopted through paragraph 5.1.2 hereof, there are indications of circumstances within Policy section 4(b)(iii) . Since, in a proceeding, a contention in a complaint against which there is no response is presumed true in the absence of any lawfully made indication to the contrary in the proceeding and since, in this proceeding, there is the absence of any lawfully made indication to the contrary of the contention that is made in paragraph 4.1.8 hereof as item "3" and in paragraph 4.1.9 hereof (particularly as item "1"), the Administrative Panel therefore finds Policy section 4(b)(iii) evidence of the registration and use of each of the Contested Domain Names in bad faith and that there is no evidence to the contrary. In view of the findings in this paragraph, and of the preamble of Policy section 4(b), the Administrative Panel therefore finds conclusive evidence of the registration and use of each of the Contested Domain Names in bad faith.

5.2.3.5 As well, by the contentions set out in paragraph 4.1.9 hereof (particularly as item "1"), and adopted through paragraph 5.1.2 hereof, there are indications of circumstances within Policy section 4(b)(iv), since when the expression "possibly attem pting" in paragraph 4.1.9 hereof is combined with item "2" of paragraph 4.1.9 hereof the result is substantially Policy section 4(b)(iv)'s "intentionally attempting". Since, in a proceeding, a contention in a complaint against which there is no response is presumed true in the absence of any lawfully made indication to the contrary in the proceeding and since, in this proceeding, there is the absence of any lawfully made indication to the contrary of the contention that is made in paragraph 4.1.9 hereof (particularly as item "1"), the Administrative Panel therefore finds Policy section 4(b)(iii) evidence of the registration and use of each of the Contested Domain Names in bad faith and that there is no evidence to the contrary. In view of the findings i n this paragraph, and of the preamble of Policy section 4(b), the Administrative Panel therefore finds conclusive evidence of the registration and use of each of the Contested Domain Names in bad faith.

5.2.3.6 In view of paragraphs 5.2.3.1 through 5.2.3.5 hereof, and particularly each of paragraphs 5.2.3.3 through 5.2.3.5 hereof, the Administrative Panel finds that element "(iii)" of Policy section 4(a) is proved to be present.

Summary Of Substantive Basis For The Administrative Panel's Decision

5.2.4 In view of paragraphs 5.2.1.2, 5.2.2.3 and 5.2.3.6 hereof, the Administrative Panel finds that each of the three elements "(i)", "(ii)" and "(iii)" of Policy section 4(a) are proved to be present.

(3) PROCEDURAL MATTERS THAT AROSE AFTER 2 OCTOBER 2000 BUT BEFORE 9 OCTOBER 2000

Overview

5.3.0 This segment has four parts: (i) construing Supplemental Rule 18 (ii) adopting paragraph 2.2.1 hereof and construing the e-mailing referred to, and quoted, therein; (iii) applying Supplemental Rule 18, as construed, to this case in view of paragraph 2.2.1 hereof, as construed; and (iv) summary of procedural basis for t he Administrative Panel's decision.

Construing Supplemental Rule 18

5.3.1.1 By Supplemental Rule 18, "a. [sic] If any Party, through any means, attempts to corrupt or influence the Panel, its members or the Clerk's office, during the course of the dispute or [A]dministrative [P]roceeding, [a. ] that [P]arty shall be deem ed to [sic]: (i) in the case of the [C]omplainant, to have abandoned the proceeding and forfeit[ed] his fee and shall be barred from introducing another [c]omplaint with regards to the domain names described in the [c]omplaint; [and] (ii) in the case of the Respondent, to have accepted unconditionally the remedies sought by the Complainant; [and] (iii) [sic] [b. ] [t]he [P]anel shall publish, on the appropriate form, its finding that the Party has tried to influence the outcome of the proceedings."

"If Any Party, Through Any Means ... During The Course Of The Dispute Or [A]dministrative [P]roceeding"

5.3.1.2 A "means" (i) includes "[t]hat through which, or by the help of which an end is attained" or "something tending to an object desired" or "intermediate object or agency" (as per e.g. the definition of "Means" in Black's Law Dictionary (5d), West P ublishing Co., St. Paul, Minnesota (1979) at 884); and (ii) therefore can include an e-mailing. Hence, an e-mailing by any Party during the course of the dispute or administrative proceeding can be within the meaning of the preamble of Supplemental Rule 18.

"Attempts to Corrupt Or Influence The Panel, Its Members Or The Clerk's Office," And "Has Tried To Influence The Outcome Of The Proceedings"

5.3.1.3 As for the expression "attempts to corrupt or influence the Panel, its members or the Clerk's office," in the preamble of Supplemental Rule 18 and "has tried to influence the outcome of the proceedings" in Supplemental Rule 18(iii), the Administr ative Panel makes three sets of findings.

5.3.1.4 Firstly, there is the context, and the purpose to be served by, those Supplemental Rule 18 expressions: (i) the context includes a complainant and a respondent, especially as parties to an administrative proceeding governed by law and contemplat ed by each of them as occurring through that respondent's domain name registration agreement, who each may well reasonably expect themself and the other to engage, and who may well actually engage, in acts which influence, or at least attempt to influence , a panel (or a panelist or a provider) during the course of the dispute or administrative proceeding (through e.g. respectively submitting to the provider a complaint or a response i.e. completing and submitting as a statement a complaint form or respons e form, together with annexed documents); and (ii) the purpose to be served is the absolutely necessary purpose of preserving the integrity of the proceedings by ensuring that those acts of actual or attempted influence are not acts (whether e.g. by a sta tement, or document, the submission of which is in bad faith or is otherwise unlawful or by bribery) to unlawfully influence the panel or a panelist or the provider (to e.g. have the panel or a panelist or the provider give some advantage inconsistent wit h official duty and the legal interests of others). One factor in that being so is that to "influence" includes to "affect, modify or act upon by physical, mental or moral power, especially in some gentle, subtle and gradual way" (as per e.g. the definit ion of "Influence" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 700) or "an emanation of spiritual or moral force" or "the act or power of producing an effect without apparent exertion of force or direct exercise of c ommand" or "corrupt interference with authority for personal gain" (as per e.g. the definition of "influence" in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980) at 587). Another factor in that being so is that in the pream ble of Supplemental Rule 18 the word "influence" is in the expression "to corrupt or influence" and that the meaning of "to corrupt" includes "to change one[']s morals and principles from good to bad" or "to change from good to bad in morals, manners or a ctions" and the meaning of "corruption" includes an "act done with an intent to give some advantage inconsistent with official duty and the rights of others" or "inducement to wrong by bribery or other unlawful or improper means" (as per e.g. the definiti ons of "Corrupt" and "Corruption" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 311 and in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980) at 253). A further factor in that being so is complainants' and respondents' statements of good-faith argument, such as the statements required by Rule 3(b)(xiv) to be in a complaint and by Rule 5(b)(viii) to be in a response. In view particularly of those three factors, in the preamble of Supplemen tal Rule 18 the meaning of the expression "to corrupt or influence the Panel, its members or the Clerk's office," includes "to corrupt or otherwise unlawfully influence the Panel, its members or the Clerk's office,".

5.3.1.5 Secondly, "attempts" and "has tried" are synonymous other than that the first expression is in the present tense and the second expression is in the past tense. One factor in that being so is that "attempt" is "an intent combined with an act fal ling short of the thing intended" or is "an endeavour to do an act, carried beyond mere preparation but short of execution" (as per in either case e.g. the definition of "Attempt" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1 979) at 116). Another factor in that being so is that "attempt" and "try" are synonymous as meaning "make an effort to do" and are antonymous of "succeed" (as per e.g. the definition of "attempt" in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980) at 72). In view particularly of those two factors, in Supplemental Rule 18(iii) "has tried" means "has attempted".

5.3.1.6 Thirdly, Supplemental Rule 18 can, and should, be construed in a manner that is internally consistent as between the Supplemental Rule 18 preamble and Supplemental Rule 18(iii). One factor in that being so is the meaning stated in the last sente nce of paragraph 5.3.1.4 hereof for the expression "to corrupt or influence the Panel, its members or the Clerk's office" in the preamble of Supplemental Rule 18. Another factor in that being so is that, in the course of the dispute or administrative pro ceeding, persons responsible for the outcome thereof, and upon whom attempts to corrupt or otherwise unlawfully influence that outcome might be made, include the panel appointed for that proceeding, as well as that panel's members and the Clerk's office. In view particularly of those two factors, the Supplemental Rule 18(iii) expression "to influence the outcome of the proceedings" would not be broader than "corrupt or otherwise unlawfully influence the Panel, its members or the Clerk's office".

"Shall Be Deemed To"

5.3.1.7 A deeming is a presumption; whether that presumption is rebuttable or is instead conclusive depends on the context, "bearing in mind the purpose to be served by the [rules containing the deeming] and the necessity of ensuring that such purpose is served.": St. Leon Village Consolidated School District No. 1425 v. Ronceray, 23 D.L.R. (2d) 32 (Man. C.A. 1960). Since the deeming is in Supplemental Rule 18, the context and purpose to be served by the rules containing the deeming includes at least t he context and purpose of Supplemental Rule 18; that context and that purpose are respectively set out in items "(i)" and "(ii)" of the first sentence of paragraph 5.3.1.4 hereof. In view of that context and that purpose, the Supplemental Rule 18 deeming is conclusive rather than rebuttable.

"Accepted Unconditionally"

5.3.1.8 To have "accepted" is to have "receive[d] with approval or satisfaction" or "admit[ted] and agree[d] to" or "accede[d] to or consent[ed] to" or "adopt[ed]" or "agree[ed] to" (as per e.g. the definition of "Accept" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 12). That which is unconditional is "[n]ot limited or affected by any condition" (as per e.g. the definition of "Unconditional" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1 979) at 1367).

"Publish"

5.3.1.9 To "publish" is (i) in a first sense, to "make public" or "circulate" or "make known to people in general"; or (ii) in a second sense, to "issue" or "put into circulation". (See e.g. the definition of "Publish" in Black's Law Dictionary (5d), We st Publishing Co., St. Paul, Minnesota (1979) at 1109.) There is no indication in the Regulation, other than by the use of the expression "publish" in Supplemental Rule 18, that the Administrative Panel is in the first sense to publish anything. Rather, Policy section 4(j), Rule 16 and Supplemental Rules 8(g) and 8(h) all indicate solely that the Administrative Panel is to provide the Provider with information (and therefore, in the second sense, to publish) which it is then up to the Provider to (in th e first sense) publish. The second sense of "publish" is therefore the more appropriate for the word "publish" in Supplemental Rule 18.

"On The Appropriate Form"

5.3.1.10 Other than by the use of the expression "appropriate form" in Supplemental Rule 18, the Regulation does not expressly refer to a form expressly created regarding Supplemental Rule 18; nor does it expressly include such a form. By default, the a ppropriate form is implicitly therefore the Provider's form used to draft this decision.

Adopting Paragraph 2.2.1 Hereof And Construing the E-mailing Referred To, And Quoted, Therein

5.3.2.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraph 2.2.1 hereof. The sense in which in this segment the Administrative Panel adopts that information is of finding that the e-mailing by the Respondent referre d to, and quoted, in paragraph 2.2.1 hereof occurred, though (i) not necessarily that any of the contents of the e-mail the Administrative Panel has quoted in that paragraph are true; and (ii) not that it was or is or will be, in this proceeding and withi n the meaning of the Regulation, either or both of a response or a lawfully made contention. Indeed, the Administrative Panel affirms its findings set out in (i) paragraph 5.1.6 hereof that by not submitting a response in accordance with the Regulation t he Respondent did not lawfully make any contentions; and (ii) paragraph 5.1.12 hereof that in this proceeding and within the meaning of the Regulation that e-mailing was not, and is not, and cannot and will not at the instance of the Administrative Panel become, a response.

5.3.2.2 The e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof purports to be from the Respondent, by (i) being "From: 'Douglas W. Barber' "; (ii) finishing with "Douglas W. Barber ¦ Fabric/cations Ltd. ¦ website address"; and (iii) the rest of its content.

5.3.2.3 The e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof purports to be a communication solely to the Administrative Panel by being solely "To: 'Rodney C. Kyle' " and knowingly so in view of (i) paragraphs 2.1.12 and 2 .1.13 hereof (adopted by paragraph 5.1.1 hereof); and (ii) the closing of the e-mail referred to, and quoted, in paragraph 2.1.16 hereof and adopted by paragraph 5.1.1 hereof (i.e. "Rodney C. Kyle ¦ Administrative Panel").

5.3.2.4 The e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof purports that the Respondent understands that the Rule 5(a) deadline of 14 September 2000 had been extended by the e-mail referred to, and quoted, in paragraph 2.1 .16 hereof (and adopted by paragraph 5.1.1 hereof). It so purports by the e-mail's body opening with the statement "Thank you for your extension." That it so purports is despite the point labeled "Second" in paragraph 5.1.11 hereof i.e. that the expres sed and implied provisions of the e-mail referred to, and quoted, in paragraph 2.1.16 hereof (and adopted by paragraph 5.1.1 hereof) were clearly dealing with extending, and indeed did extend, solely the Rule 15(b) 2 October 2000 time limit referred to in paragraph 2.1.14 hereof (for the Administrative Panel to communicate its decision on the Complaint) rather than e.g. dealing in any sense with the Rule 5(a) 14 September 2000 time limit referred to in paragraph 2.1.11 hereof (for the Respondent to submi t a response to the Provider).

5.3.2.5 The e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof purports to be a reply to the Monday 2 October 2000 e-mail referred to, and quoted, in paragraph 2.1.16 hereof and adopted by paragraph 5.1.1 hereof, by (i) being a "RE:" (i.e. e-mail system short-form for "reply") as in "Subject: RE: Domain Name Dispute Case AF-0294 Regarding 'fabri-lok.com' and 'fabrilok.com'" which other than "RE:" is the same subject line as the e-mail referred to, and quoted, in paragraph 2.1 .16 hereof and adopted by paragraph 5.1.1 hereof; (ii) being of "Date: Wed, 4 Oct 2000 16:21:02 -0600" i.e. occurring after the e-mail referred to, and quoted, in paragraph 2.1.16 hereof and adopted by paragraph 5.1.1 hereof; and (iii) having as its secon d part, under the heading "Original Message", a copy of the e-mail referred to, and quoted, in paragraph 2.1.16 hereof and adopted by paragraph 5.1.1 hereof. That it so purports is despite the point labeled "Third" in paragraph 5.1.11 hereof i.e. that th e expressed and implied provisions of the e-mail referred to, and quoted, in paragraph 2.1.16 hereof (and adopted by paragraph 5.1.1 hereof) did not request, or require, a communication from anyone (other than the Administrative Panel) in any sense, wheth er under Rule 12 or otherwise.

5.3.2.6 The e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof purports that it is a submission, by its being a statement or document and particularly by the fact that its second paragraph begins with the expression "For the r ecord,". That it so purports is indicated by (i) the fact that to be submitted means to be "commit[ted] to the discretion of another" or "yield[ed] to the will of another" (as per e.g. the definition of "Submit" in Black's Law Dictionary (5d), West Publi shing Co., St. Paul, Minnesota (1979) at 1278); and (ii) the fact that the "record" in this proceeding, and as is widely known, generally in any proceeding, is a written account of the proceeding and is by the panel or other officials and includes stateme nts and documents submitted (as per e.g. the definition of "Record" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 1145 and "record" in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980) at 958).

5.3.2.7 The e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof purports to be a contention, by the overwhelming majority of its approximately 500 words of largely contentious content. That it so purports is despite the fact t hat it also purports to not be a contention (and does so rather indecisively by distinguishing between what the Respondent refers to therein as "actively contest[ing]" as contrasted with some other sort of contesting). As for purporting to not be a conte ntion, there is only a brief passage (of approximately 30 words) in its fifth and closing paragraph i.e. that "I therefore [sic] not contest Mr. Fuller in this matter. I have no inclination to retain cousel and actively contest this matter. Your panel's ruling will be abided by myself and Fabric/cations Ltd."

5.3.2.8 The e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof purports that the Complaint (i) at the very least is to lead, or does lead, (e.g. the Administrative Panel) in a wrong direction, or into a mistaken action or beli ef, quite possibly by deliberate deceit by the Complainant; or (ii) was actually calculated by the Complainant to lead (e.g. the Administrative Panel) astray or into error. It so purports by (i) the second sentence of the first paragraph of its body bein g "I have considered the matter carefully and read the mis-leadings again of Mr. Fuller."; and (ii) hyphen-lack notwithstanding, the definitions of "mislead" and "misleading" in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (198 0) at 729 of "to lead in a wrong direction or into a mistaken action or belief often by deliberate deceit" and of "Misleading" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 902 of "calculated to lead astray or lead int o error".

5.3.2.9 Particularly in view of paragraphs 5.3.2.1 through 5.3.2.8 hereof, the Administrative Panel finds that the e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof was from the Respondent and also has all of the attributes s et out in the remainder of this paragraph. Firstly, it was a communication solely to the Administrative Panel, contrary to the Regulation (e.g. Policy section 2(h)(iii), Rule 8, and if it were to have been a response then also Supplemental Rule 4(a)) and was therefore an unlawfully made communication. Secondly, it was an unrequested and unrequired reply to the e-mail appended to it. Thirdly, it was a submission, and, independently of being an unlawfully made communication as indicated above in this par agraph, was an unlawfully made submission by being made after the unextended time limit of 14 September 2000. Fourthly, it was an unlawfully made contention, in the sense of being (i) each of, though either suffices, an unlawfully made communication with in the meaning indicated above in this paragraph and an unlawfully made submission within the meaning indicated above in this paragraph; and (ii) a contention (in particular but not limited to contending that the Complaint (a) at the very least is to lead , or does lead, the Administrative Panel in a wrong direction, or into a mistaken action or belief, quite possibly by deliberate deceit by the Complainant or (b) was actually calculated by the Complainant to lead the Administrative Panel astray or into er ror). The Administrative Panel notes in regard to that point "Fourthly", that the statement of good-faith argument required by the Regulation (e.g. Rule 3(b)(xiv) and Rule 5(b)(viii)) to be present in a complaint was present in the Complaint (as per Rule 3(b)(xiv)) but was not present in the unlawfully made contention.

5.3.2.10 By Rule 14(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 approp riate." Without limiting the Administrative Panel's ability to expressly or implicitly apply Rule 14(b) elsewhere, and given the absence of "exceptional circumstances" within the meaning of that expression in Rule 14(b), and particularly in view of parag raphs 5.3.2.1 through 5.3.2.8 hereof and with reference to paragraph 5.3.2.9 hereof, the Administrative Panel also finds as to (i) the point "Firstly" in paragraph 5.3.2.9, that in so making the unlawfully made communication, the Respondent knew not only that he was making it solely to the Administrative Panel but also that he was in that sense making it unlawfully; (ii) the point "Secondly" in paragraph 5.3.2.9, that in so replying, the Respondent knew that the e-mail appended to it extended solely the 2 October 2000 time limit rather than the 14 September 2000 time limit; (iii) the point "Thirdly" in paragraph 5.3.2.9, that in so making the unlawfully made submission, the Respondent knew not only that he was making it after the unextended time limit of 14 September 2000 but also that he was in that sense making it unlawfully; and (iv) the point "Fourthly" in paragraph 5.3.2.9, that in so making the unlawfully made contention, the Respondent knew that he was acting unlawfully.

Applying Supplemental Rule 18, As Construed, To This Case In View Of Paragraph 2.2.1 Hereof, As Construed

5.3.3.1 By Rule 15(a), "A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with [the] Policy, [the] Rules and any rules and principles of law it deems applicable."

5.3.3.2 By Rule 5(e), "If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint." The meaning of the expression "exceptional circumstances", in Rule 5(e), include s "[c]onditions which are out of the ordinary course of events; unusual or extraordinary circumstances" (as per e.g. the definition of "Exceptional circumstances" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 503).

5.3.3.3 The meaning of the expressions "on the basis of" in Rule 15(a) as set out in paragraph 5.3.3.1 hereof, and "based upon" in Rule 5(e) as set out in paragraph 5.3.3.2 hereof, include to have as "foundation" or "groundwork" or "support" or as "the p rincipal component" or as "a main ingredient" (as per e.g. the definition of "Base" and "Basis" in Black's Law Dictionary (5d), West Publishing Co., St. Paul, Minnesota (1979) at 137 and 138 and of "base" and "based" at 91, and "basis" at 92, in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980)).

5.3.3.4 In view of paragraphs 5.3.2.1 through 5.3.2.10 hereof, the e-mailing by the Respondent referred to, and quoted, in paragraph 2.2.1 hereof (i) has always been, and is now, within the meaning of the expression "exceptional circumstances" in Rule 5 (e); and (ii) whether or not "exceptional circumstances" within the meaning of that expression in Rule 5(e), has always been, and is now, a basis on which to decide the Complaint, within the meaning of the expressions "based upon" in Rule 5(e) and "on the basis of" in Rule 15(a).

5.3.3.5 In view of paragraphs 5.3.1.1 through 5.3.1.10 hereof applied to paragraphs 5.3.2.1 through 5.3.2.10 hereof, and in view of paragraphs 5.3.3.1 through 5.3.3.4 hereof, the Administrative Panel finds that the e-mailing by the Respondent referred to , and quoted, in paragraph 2.2.1 hereof was from the Respondent and was contrary to Supplemental Rule 18 as an attempt to corrupt or otherwise unlawfully influence the Administrative Panel during the course of this proceeding, by being, within the meaning indicated in paragraph 5.3.2.9 hereof, an unlawfully made communication, an unlawfully made submission, and an unlawfully made contention, though any one of those three unlawful acts suffices for the purposes of Supplemental Rule 18. In view of paragrap h 5.3.2.10 hereof, the Administrative Panel further finds that in so making the attempt to corrupt or otherwise unlawfully influence the Administrative Panel during the course of this proceeding, the Respondent knew that he was acting unlawfully.

5.3.3.6 In view of paragraphs 5.3.1.1 through 5.3.3.5 hereof, the Administrative Panel finds the Respondent is conclusively presumed to have accepted unconditionally the remedies sought by the Complainant.

Summary Of Procedural Basis For The Administrative Panel's Decision

5.3.4 Whether or not the Administrative Panel has erred in the conclusion set out in paragraph 5.2.4 hereof, the Respondent is conclusively presumed, as indicated by paragraphs 5.3.1.1 through 5.3.3.6 hereof, to have accepted unconditionally the remedies sought by the Complainant.

(4) PROCEDURAL MATTERS THAT AROSE ON OR AFTER 9 OCTOBER 2000

5.4.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraph 2.3.1 hereof. The sense in which the Administrative Panel adopts that information is of finding (i) as fact the matters of fact therein; (ii) as law the matte rs of law therein; and (iii) as legal relations the matters of legal relations therein.

5.4.2 Without limiting the generality of paragraph 5.4.1 hereof, (i) the "exceptional circumstances" referred to in the e-mail by or on behalf of the Administrative Panel set out in paragraph 2.3.1 hereof included (a) the 4 October 2000 e-mail from the R espondent set out in paragraph 2.2.1 hereof and (b) the research and analysis and writing that had been, and that would be, necessitated by that 4 October 2000 e-mail; (ii) those exceptional circumstances necessitated that one week extension from 9 Octobe r 2000 to 16 October 2000; and (iii) the e-mail by or on behalf of the Administrative Panel set out in paragraph 2.3.1 hereof effected that one week extension from 9 October 2000 to 16 October 2000.

(5) SUMMARY, AND CONSEQUENCES, OF SEGMENTS "1", "2", "3" AND "4"

Bases For The Administrative Panel's Decision

5.5.1 There was an administrative proceeding conducted under the Policy and to which the Respondent was a party, wherein independently of one another each of the following bases was found as a basis for the Administrative Panel to require the Registrar o f the Contested Domain Names to effect the remedy sought in section 4(d) of the Complaint's form (set out in paragraph 4.1.10 hereof and adopted through paragraph 5.1.2 hereof): (i) in view of paragraph 5.2.4 hereof, it has been proven that the three ele ments "(i)" "(ii)" and "(iii)" of Policy section 4(a) are present; and (ii) in view of paragraph 5.3.4 hereof, the Respondent is conclusively presumed to have accepted unconditionally the remedies sought by the Complainant.

The Administrative Panel's Making Its Decision

5.5.2 By Rule 15(d) "The Panel's decision shall be in writing, provide the reasons on which it is based, indicate the date on which it is rendered and identify the name(s) of the Panelist(s)." More particularly, (i) by Supplemental Rule 15(a) "The Decis ion of the panel shall be drafted on the appropriate form ..."; and (ii) by the Provider's forms, which include a form used to draft this decision, the decision is to be signed and include the "date and place of the decision".

The Administrative Panel's Communicating Its Decision

5.5.3 By Rule 15(b) "In the absence of exceptional circumstances, the Panel shall forward its decision on the complaint to the Provider within fourteen (14) days of its appointment pursuant to [Rule] 6." (More particularly, by Supplemental Rule 15(a) "T he Decision of the panel shall be ... communicated to the Clerk's office.") As indicated by (i) paragraph 5.1.1 hereof (particularly as to paragraph 2.1.16 hereof) and the points referred to in paragraph 5.1.11 hereof as "First and "Second", the 14th day referred to in Rule 15(b) was initially 2 October 2000 but on 2 October 2000 that time limit of 2 October 2000 was extended to 9 October 2000; and (ii) paragraphs 5.4.1 and 5.4.2 hereof, on 9 October 2000 that time limit of 9 October 2000 was extended to 16 October 2000.

6. Conclusions

6.1 By Policy section 4(i) and the Notes, in respect of each of the Contested Domain Names, "The remedies available to [the Complainant] pursuant to [this] proceeding before [the] Administrative Panel shall be limited to requiring the cancellation of [ the Respondent's] domain name or the transfer of [the Respondent's] domain name registration to the [C]omplainant." Therefore, based on the reasons provided herein, and in view particularly of paragraphs 5.5.1 through 5.5.3 hereof, the Administrative Pan el hereby makes and communicates its decision on the Complaint to the Clerk's office of the Provider, which decision is as follows: the Administrative Panel (i) requires the Registrar for the Contested Domain Names to transfer, to the Complainant, the re gistration of the First Contested Domain Name; and (ii) requires the Registrar for the Contested Domain Names to transfer, to the Complainant, the registration of the Second Contested Domain Name.

7. Signature

7.1 In accordance with all of the above, this decision is signed this 16 October 2000 at Ottawa, Ontario, Canada by

(s) Rodney C. Kyle

Presiding Panelist

ANNEX

A.1 The Administrative Panel finds the applicable Trade-marks Act provisions include the following:

(i) section 2 that "In this Act, ... 'confusing' when applied as an adjective to a trade-mark or trade-name means a trade-mark or trade-name the use of which would cause confusion in the manner and circumstances described in section 6; ... 'distinctive' i n relation to a trade-mark, means a trade-mark that actually distinguishes the wares or services in association with which it is used by its owner from the wares or services of others or is adapted so to distinguish them; ... 'person' includes any lawful trade union and any lawful association engaged in trade or business or the promotion thereof, and the administrative authority of any country, state, province, municipality or other organized administrative area; ...'proposed trade-mark' means a mark that is proposed to be used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others; 'register' means the register kept under section 26; 'registered trade-mark' means a trade-mark that is on the register; ... 'Registrar' means the Registrar of Trade-marks appointed under section 63; ... 'trade-mark' means (a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others, ... or (d) a proposed trade-mark; 'trade-name' means the name under whic h any business is carried on, whether or not it is the name of a corporation, a partnership or an individual; 'use', in relation to a trade-mark, means any use that by section 4 is deemed to be use in association with wares or services...";

(ii) section 4 that "(1) A trade-mark is deemed to be used in association with wares if, at the time of the transfer of the property in or possession of the wares, in the normal course of trade, it is marked on the wares themselves or on the packages in w hich they are distributed or it is in any other manner so associated with the wares that notice of the association is then given to the person to whom the property or possession is transferred. (2) A trade-mark is deemed to be used in association with se rvices if it is used or displayed in the performance or advertising of those services.";

(iii) section 6(4) that "The use of a trade-name causes confusion with a trade-mark if the use of both the trade-name and the trade-mark in the same area would be likely to lead to the inference that the wares or services associated with the trade-mark ar e manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class.";

(iv) section 6(5) that "In determining whether trade-marks or trade-names are confusing, the court or Registrar, as the case may be, shall have regard to the following circumstances including (a) the inherent distinctiveness of the trade-marks and trade-n ames and the extent to which they have become known; (b) the length of time the trade-marks and trade names have been in use; (c) the nature of the wares, services or business; (d) the nature of the trade; and (e) the degree of resemblance between the tra de-marks or trade-names in appearance or sound or in the ideas suggested by them.";

(v) section 19 that "[T]he registration of a trade-mark in respect of any wares or services, unless shown to be invalid, gives to the owner of the trade mark the exclusive right to the use throughout Canada of the trade-mark in respect of those wares or s ervices.";

(vi) section 20 that "The right of the owner of a registered trade-mark to its exclusive use shall be deemed to be infringed by a person not entitled to its use under this Act who sells, distributes or advertises wares or services in association with a co nfusing trade-mark or trade-name, but no registration of a trade-mark prevents a person from making ... (b) any bona fide use, other than as a trade-mark, ... (i) of any accurate description of the character or quality of his wares or services, in such a manner as is not likely to have the effect of depreciating the value of the goodwill attaching to the trade-mark.";

(vii) section 26(1)(a) that "There shall be kept under the supervision of the Registrar ... a register of trade-marks and of transfers, disclaimers, amendments, judgments and orders relating to each registered trade-mark";

(viii) section 26(2) that "The register referred to in paragraph (1)(a) shall show, with reference to each registered trade-mark, the following: (a) the date of registration; (b) a summary of the application for registration; (c) a summary of all documen ts deposited with the application or subsequently thereto and affecting the rights to the trade-mark; (d) particulars of each renewal; (e) particulars of each change of name and address; and (f) such other particulars as this Act or the regulations requir e to be entered thereon.";

(ix) section 40(2) that "When an application for registration of a proposed trade-mark is allowed, the Registrar shall give notice to the applicant accordingly and shall register the trade-mark and issue a certificate of registration on receipt of a decla ration that the use of the trade-mark in Canada, in association with the wares or services specified in the application, has been commenced by (a) the applicant; (b) the applicant's successor in title; or (c) an entity that is licensed by or with the auth ority of the applicant to use the trade-mark, if the applicant has direct or indirect control of the character or quality of the wares or services.";

(x) section 46(1) that "The registration of a trade-mark that is on the register by virtue of this Act is subject to renewal within a period of fifteen years from the day of the registration or last renewal.";

(xi) section 54(1) that "Evidence of any document in the official custody of the Registrar or of any extract therefrom may be given by the production of a copy thereof purporting to be certified to be true by the Registrar.";

(xii) section 54(2) that "A copy of any entry on the register purporting to be certified to be true by the Registrar is evidence of the facts set out therein.";

(xiii) section 54(3) that "A copy of the record of the registration of a trade mark purporting to be certified to be true by the Registrar is evidence of the facts set out therein and that the person named therein as owner is the registered owner of the trade mark for the purposes and within the territorial area therein defined.";

(xiv) section 62 that "This Act shall be administered by the Minister of Consumer and Corporate Affairs.";

(xv) section 63 that "There shall be a Registrar of Trade-marks ... responsible to the Deputy Minister of Consumer and Corporate Affairs."; and

(xvi) section 65 that "The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Act and, in particular, may make regulations with respect to the following matters: (a) the form of the register and of the indexes to be maintained pursuant to this Act, and of the entries to be made thereon ...".

A.2 The Administrative Panel finds the applicable Trade Marks Regulations provisions include the following:

(i) section 61 that "Pursuant to the provisions of paragraph 26(2)(b) of the Act, the register shall show, with reference to each registered trade mark, a summary of the application for registration as allowed which shall include as much of the following information as is applicable: (a) the trade mark and any disclaimer with respect thereto; (b) the wares and services in respect of which registration has been requested and, in the case of a proposed trade mark, in respect of which the declaration of use in Canada required by subsection 40(2) of the Act has been filed; (c) the number of the application for registration; (d) the date of filing of the application ..."; and

(ii) section 62 that "Pursuant to the provisions of paragraph 26(2)(f) of the Act, the register shall show with reference to each registered trade mark such other particulars as the Registrar may deem proper including as much of the following information as is applicable: ... (b) the number of the registration ... (d) the name and address of the original registered owner".

A.3 The Administrative Panel finds the applicable Federal Interpretation Act provisions include the following:

(i) section 2(1) that "In this Act; [a] 'Act' means and Act of Parliament; [b] 'enact' includes to issue, make or establish; [c] 'enactment' means an Act or regulation or any portion of an Act or regulation; [d] 'regulation' includes an order, regulation, rule, rule or court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established (a) in the execution of a power conferred by or under the authority of an Act, or (b ) by or under the authority of the Governor in Council; [and] [e] 'repeal' includes to revoke or cancel.";

(ii) section 2(2) that "For the purposes of this Act, an enactment that has expired, lapsed or otherwise ceased to have effect is deemed to have been repealed.";

(iii) section 3 that "(1) Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act. (2) The provisions of this Act apply to the interpretation of this Act." (3) Nothing in this Act excludes the application to an enactment of a rule of construction applicable to that enactment and not inconsistent with this Act.";

(iv) section 10 that "The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.";

(v) section 11 that "The expression 'shall' is to be construed as imperative and the expression 'may' as permissive.";

(vi) section 12 that "Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best assures the attainment of its objects.";

(vii) section 13 that "The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.";

(viii) section 15 that "(1) Definitions or rules of interpretation in an enactment apply to all of the provisions of the enactment, including the provisions that contain those definitions or rules of interpretation. (2) Where an enactment contains an int erpretation section or provisions, it shall be read and construed (a) as being applicable only if a contrary intention does not appear; and (b) as being applicable to all other enactments relating to the same subject-matter unless a contrary intention app ears.";

(ix) section 16 that "Where an enactment confers power to make regulations, expressions used in the regulations have the same respective meanings as in the enactment conferring the power.";

(x) section 25(1) that "Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and t he fact is deemed to be established in the absence of any evidence to the contrary.";

(xi) section 31 that "(1) Where anything is required or authorized to be done by or before a judge, magistrate, justice of the peace or any functionary or officer, it shall be done by or before one whose jurisdiction or powers extend to the place where th e thing is to be done. ... (3) Where a power is conferred or a duty imposed, the power may be exercised and the duty shall be performed from time to time as occasion requires. (4) Where a power is conferred to make regulations, the power shall be constru ed as including a power, exercisable in the same manner and subject to the same consent and conditions, if any, to repeal, amend or vary the regulations and make others.";

(xii) section 32 that "Where a form is prescribed, deviations from the form, not affecting the substance or calculated to mislead, do not invalidate the form used.";

(xiii) section 33v that "(1) Words importing male persons include female persons and corporations. (2) Words in the singular include the plural, and words in the plural include the singular. (3) Where a word is defined, other parts of speech and gramma tical forms of the same word have corresponding meanings."; and

(xiv) section 38 that "The name commonly applied to any country, place, body, corporation, society, officer, functionary, person, party or thing means the country, place, body, corporation, society, officer, functionary, person, party or thing to which th e name is commonly applied, although the name is not the formal or extended designation thereof."