Generic Top Level Domain Name (gTLD) Decisions

The Complainant is 4You A/S , Haderslev, DENMARK ("Complainant") represented by Jason L. Berk, Roetzel & Andress. The Respondent is 4You Net Services, Cleveland, OH, USA ("Respondent").

The domain name at issue is 4you.com, registered with Network Solutions.

The undersigned certify that they acted independently and impartially and to the best of their knowledge, have no known conflict in serving as panelists in this proceeding.

Hon. Paul A. Dorf, Hon. Irving H. Perluss and Hon. James A. Carmody, Chairman, as Panelists.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on October 20, 2000; The Forum received a hard copy of the Complaint on October 25, 2000.

On Oct 23, 2000, Network Solutions confirmed by e-mail to The Forum that the domain name 4you.com 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 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On October 25, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 14, 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@4you.com by e-mail.

On November 17, 2000, pursuant to Complainant’s request to have the dispute decided by a Three Member panel, the Forum appointed the Hon. Paul A. Dorf, the Hon. Irving H. Perluss and the Hon. James A. Carmody, Chairman, as Panelists.

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

A. Complainant

The Complainant asserts that "4 YOU" is its internationally known trademark and lists 43 international registrations of the mark as well as 16 pending registration applications. Use of the mark by Complainant is claimed since 1973 with a first registration in Denmark in 1979. Complainant claims that the domain name "4you.com," registered by Respondent on December 13, 1995, is identical or confusingly similar to its protected mark, that Respondent has no rights or legitimate interest in the mark and is not using the domain at issue for a legitimate business purpose. Complainant further asserts that Respondent registered and is using the domain in bad faith due to disregard of a registered trademark and because Respondent is attempting to attract, for commercial gain, traffic to the website by creating a likelihood of confusion with Complainant’s mark.

B. Respondent

Respondent defends on the grounds that it began its sole proprietorship business in December of 1995 as 4You Net Services without knowledge of Complainant or its mark. Respondent’s business changed legal forms over the years following and is now known as 4You Net Services Inc. Respondent claims that its December 13, 1995 registration of www.4you.com was in furtherance of its business purpose which involves web based matrimonial services for the Asian Indian and Muslim communities. Although Respondent admits that the domain is identical or confusingly similar to Complainant’s mark, it asserts that it has been commonly known by that name since 1995 and has maintained legitimate interests in respect of the domain name and website. Respondent claims it has not acted in bad faith in using and refusing to turn over the domain to the Complainant.

The parties do not dispute that the domain name at issue is identical or confusingly similar to Complainant’s trademark.

Respondent’s many trademark registrations of "4YOU" are of note, but it appears that application for registration in the United States did not occur until October 10, 1995, with a registration date of September 17, 1996. Respondent does not claim a date of first use of the mark in the United States nor does it claim that its quality men’s wear business is in any manner in competition with the web based matrimonial services provided by Respondent.

Respondent has been commonly known as "4YOU Net Services" since December of 1995 and registered Articles of Organization of 4YOU NET SERVICES, LTD in October of 1996. Respondent’s business cards feature a logo of four letter "U"s joined at the base. AltaVista search engine and other evidence has been provided by Respondent which reflects that it solicits and provides unique matrimonial web based services using the domain name at issue and has done so for several years.

Complainant has offered no evidence that Respondent offered to sell the domain name for any price to Complainant or to a competitor of Complainant. Complainant offers no explanation why it did not attempt registration of the domain name at issue several years ago or why it waited four years to raise the issues of infringement and confusion of the mark. There is no alleged history of cybersquatting or domain name warehousing on the part of the Respondent.

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.

The parties do not dispute that the Complainant has rights in the mark, "4YOU" or that the domain name at issue is identical or confusingly similar to that mark.

Respondent claims that his business, "4 You Net Services" has been in the development stages since December of 1995. Respondent has used the domain name at issue since 1996, and continues to use it today. See Genting Berhad v. Tan Kin Sin, FA 94735 (Nat. Arb. Forum June 28, 2000) (finding that the Respondent had legitimate interests in the domain name where the Respondent had made preparations to use the domain for his newly formed business). See also Parachute, Inc. v. Jones, FA 94947 (Nat. Arb. Forum July 12, 2000) (denying transfer of the domain name because the Respondent’s use of the mark, "parachute", and the domain name in question preceded any use of the service mark by the Complainant). The five years of continuous use of the 4you.com domain name in connection with a business of the same name, not in competition with the Complainant, clearly militates in favor of Respondent’s rights and legitimate interests in the domain name. The Panel further notes that Complainant has waited four years following its U.S. registration of the "4YOU" trademark to attack Respondent’s use of the domain name for its established matrimonial business.

Complainant has failed to establish elements 2 and 3 of the ICANN Policy Rule 4(a). Accordingly, for all of the foregoing reasons, it is the unanimous decision of the Panel that the domain name 4you.com not be transferred from Respondent to Complainant.