Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Love Your Neighbor, Detroit, MI, USA ("Complainant"). The Respondent is Love Thy Neighbor Organization, Fort Lauderdale, FL, USA ("Respondent").

The domain name at issue is "lovethyneighbor.org", registered with Network Solutions.

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as the panelist in this proceeding.

Judge Irving H. Perluss (Retired) is the Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on October 6, 2000; The Forum received a hard copy of the Complaint on October 6, 2000.

On October 12, 2000, Network Solutions confirmed by e-mail to The Forum that the domain name "lovethyneighbor.org" is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 4.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Dispute Resolution Policy ("Policy").

On October 12, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 1, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@lovethyneighbor.org by e-mail.

On November 3, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Judge Irving H. Perluss (Retired) as Panelist. The Panelist has considered additional materials submitted by the parties.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

A. Complainant

1. Complainant registered its mark "Love Your Neighbor" with the United States Patent and Trademark Office on October 20, 1998. It also registered the mark "Love Thy Neighbor" with the United States Patent and Trademark Office on April 18, 2000.

2. Respondent registered the domain name in issue with Network Solutions on November 6, 1998,a later date, but prior to any attempted domain registration by Complainant.

3. The domain name in issue is the Golden Rule derived from both the Old and New Testaments, and, accordingly, properly is subject to universal use.

4. Respondent is an accredited 26 U.S.C. §501(c)(3) corporation, and it uses the domain name to collect charitable contributions for donations to people in need. This is a noncommercial purpose by a non-profit corporation.

Preliminarily, the incongruity of a disputation over the use of the vital biblical injunction is to be observed.

Secondly, it must be recognized that this arbitration is not the appropriate forum for the resolution of a trademark infringement suit. The Panelist here is required to apply the Policy in making his determination. The assignment of domain names by Network Solutions does not necessarily correspond with the established principles of trademark law. (See, Delta and Matsurra, Law of the Internet (Updated, 2000) §5.04(B), p. 5-56.)

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

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

Complainant first charges that the domain name in issue is identical to its mark. It is to be remembered that the domain name in issue uses ".org." A domain name combination must include a top-level domain, which can be "com.," "net.," "org.," "gov.," or "edu.," among others. The combination also must include a second-level domain, which can be any word not already reserved in combination with the top-level domain. (See, Avery Dennison Corporation v. Jerry Sumpton (9^th Cir. 1999) [1999] USCA9 436; 189 F.3d 868, 871.)

The top-level domain "org." customarily is in usage by non-profit organizations. This top-level domain name, accordingly, properly was registered by Respondent.

In 4 McCarthy (4^th ed. 1996) Trademarks and Unfair Competition, §25:72.1, it is said:

It is recognized that it has been held that the ".com" top-level domain indicator normally is of no importance in distinguishing the marks. (See, Brookfield Communications, Inc. v. West Coast Entertainment Corp. (9^th Cir. 1999) [1999] USCA9 225; 174 F.3d 1036, 1055, 50 U.S.P.Q. 1545, 1558.)

Nevertheless, by a parity of reason with Professor McCarthy’s treatise, it follows that the domain name "lovethyneighbor.org" is not identical to Complainant’s mark. (See, Avery Dennison Corporation v. Jerry Sumpton, supra, at 880-881.)

It may be held, however, that the domain name in issue, although not identical, clearly is confusingly similar to Complainant’s mark.

It may be assumed that the first required element of the Policy has been met by Complainant.

Paragraph 4(c)(iii) of the Policy informs a Respondent that, without limitation, he may demonstrate that he has rights to and a legitimate interest in a domain name for purposes of Paragraph 4(a)(ii), as follows:

The Panelist has found that Respondent is an accredited §501(c)(3) corporation and that it is collecting alms for the poor. It is, accordingly, making a legitimate noncommercial use of the domain name without intent for commercial gain. Complainant has not presented any credible evidence to the contrary.

Thus, Respondent does have a legitimate interest and rights in the domain name pursuant to the Policy above.

The Panelist has considered the circumstances, which, without limitation, for purposes of Paragraph 4(a)(iii) of the Policy, would be evidence of the registration and use of the domain name in bad faith as follows:

There is no evidence supporting this factor, and it is denied by Respondent.

There is no evidence supporting this factor. In any event, there is no evidence of a pattern of such conduct.

There is no evidence supporting this factor.

There is no evidence supporting this factor.

Respondent expressly denies that it is using the domain name in issue for "commercial gain." It sells no goods or services, but collects and distributes donations for charity.

Thus, the Panelist is required to find that Respondent has not registered or used the domain name in bad faith. In the last analysis, accordingly, it is "first come, first served."

The claim of Complainant Love Your Neighbor against Respondent Love Thy Neighbor Organization seeking to have the domain name "lovethyneighbor.org" transferred to Complainant, be and the same, is hereby denied.