The word "and" is a conjunction hence the Panel shall not decide on a Complaint solely on the basis of the allegations submitted ; nor is it the burden of the Panel to seek the further evidence other than judicial knowledge as this may be disruptiv e of the Arbitration Process. Therefore, the burden rests on the parties to either support or sustain their allegations with appropriate documentation whenever possible.

Noteworthy, while the Policy and Rules clearly impose a burden of proof upon the Complainant, in the present matter, the Complainant did not provide any evidence supporting its statements except a home-made list of the trademarks that it allegedly owns. The Panel though is of the view that this document is in itself not sufficient to sustain the allegation, at least as it relates to ownership.

Furthermore, the statements made by the Complainant appear on their face to be incomplete and certainly not corroborated by any documentary evidence (other than the home-made list above). Therefore, the Panel has based its decision solely on the grounds o f the statements and document submitted.

5.3 Identity or Confusing Similarity

According to paragraph 4 (a) (i) of the ICANN Policy, the Complainant must prove that the Domain Name is identical or confusingly similar to its trademark, and prove that it has rights in said trademark. From the statements a nd evidence presented, the Panel finds that the Domain Name multiview.com is identical or confusingly similar to the Complainant's alleged trademarks. However, the Complainant has failed to satisfactory show that it had right s, whether registered or not, in the trademarks MULTIVIEW, MULTIVIEW CATALYST and MULTIVIEW ENTERPRISE.

The Complainant has stated that it is the owner of the trademarks MULTIVIEW, MULTIVIEW CATALYST and MULTIVIEW ENTERPRISE, but it did not provide the Panel with any kind of evidence whats oever supporting such fact ; indeed the only evidence presented supporting such allegation is a document issued by the Complainant itself and the Panel cannot and does not regard this document as satisfactory evidence supporting such allegation.

On that point, the Complainant needs not to prove rights in a registered trademark, as the Policy does not require that the Complainant must have rights to a "registered" trademark. However, in the absence of a registration, the Complainant has to be able to satisfy the Panel that it has sufficient rights which would give rise to an action for passing off. See Jeanette Winterson v. Mark Hogarth, WIPO Case No. D2000-0235. In that matter, the Complainant did not provide evidence of use of those trade marks nor evidence showing substantial goodwill and reputation as well as secondary association of the trademarks with the Complainant.

Consequently, it is the Panel's view that the Complainant did not prove satisfactorily that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

5.4 Rights or Legitimate Interests

Paragraph 4 (a) (ii) of the ICANN Policy inquires as to whether or not the Respondent has any rights or legitimate interests vested in the Domain Name. Paragraph 4 (c) of the Policy illustrates how a Respondent can demonstrat e rights or interest in the Domain Name at issue. This paragraph sets out three non-exhaustive examples, such as:

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain to misleading divert consumers or to tarnish the trademark or service mark at issue.

In the case at hand, Respondent did show evidence of preparation to use the Domain Name in connection with its bona fide offering of goods and services before it received notice of this dispute.

While Respondent's company name was only registered at the Chamber of Commerce in Leiden on July 1, 2000, Respondent nevertheless started its use of the name Multiview Solutions in 1997, after it had been confronted by another company to change its name, at which point the Respondent changed its name from Sirius Solutions to Multiview Solutions. Therefore, the Panel finds on that point that the Respondent showed sufficient proof of use of its new company name before it was registered. Furthermore, Respond ent provided the Panel with evidence of Patent registrations and applications in various countries, in 1997, as well as a Trademark application in 2000, from which an inference of good faith can be made.

In the absence of any proof to the contrary by the Complainant, it would appear that the Respondent's use of the Domain Name at issue is fair and not intended to divert customers or tarnish the trademark rights of the Complainant. Even though both parties are in the software business field, it appears from the evidence presented hereto that the parties commercial activities cover different fields of computer software. While the Complainant's products are directed towards the general public, the Res pondent's products seem to be directed towards the manufacturing industries.

Respondent has directed Panel's attention to the fact that Complainant had voluntarily offered to buy Respondent's Domain Name, as shown in the letter presented by the Respondent. This situation is very unusual, in that in most known cases it is th e Respondent who is trying to sell a Domain Name to the Complainant, and not vice-versa. The Respondent did not acknowledge or reply to the Complainant's letters requesting to purchase the Domain Name, thus indicating it did not have time no r interest in selling its Domain Name and certainly no negative inferences can be made against the Respondent.

Consequently, the Panel is of the view that the Complainant has not satisfied its burden of showing that Respondent did not have any rights or legitimate interest vested in the Domain Name.

5.5 Bad Faith

Pursuant to paragraph 4 (a) (iii) of the ICANN Policy it is incumbent upon the Complainant to prove that the Respondent has registered and is using the Domain Name in bad faith.

Paragraph 4 (b) of the ICANN Policy states:

"For the purposes of Paragraph 4 (a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain in bad faith:

(i) circumstances indicating that you have registered or you have acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Domain Name; or

(ii) you have 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 you have engaged in a pattern of such conduct; or

(iii) you have registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the Domain Name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsors hip, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."

There has been absolutely no evidence presented by Complainant before the Panel to show that the Respondent acquired the Domain Name to either sell it or otherwise transfer the registration to the complainant for a valuable consideration; not only did the Respondent not initiate contact with the Complainant, but more importantly, as noted above, when contacted by Complainant, the Respondent failed to reply.

While the Complainant has expressed the view that the Respondent has either tried to prevent the Complainant from reflecting the mark in a corresponding Domain Name, or attempted to disrupt the business of the Complainant, there has been no evidenc e showing or alluding to these allegations. Furthermore, as noted above, the Respondent's evidence seems to indicate that the products of the parties are different and are not intended towards the same kind of customers nor has the Respondent created or i ntended to create a likelihood of confusion with the Complainant's mark.

As the circumstances referred to above are not exhaustive, and absent evidence of any of the said circumstances, it was still open to the Complainant to show evidence that the Respondent acted in bad faith, due to other circumstance s. However, Complainant chose not to do so. It is tried law that bad faith cannot be presumed in the absence of any proof of the contrary. Here again the Complainant has failed.

6. Conclusion

In light of the foregoing, the Administrative Panel therefore concludes that the Complainant has failed to meet its burden as required under each of the three elements under paragraph 4 (a) of the ICANN Policy.

Accordingly, the remedy sought in the Complaint is denied.

7. Signature

December 21, 2000

Montreal, (Quebec) CANADA

(s) Jacques A. Léger, Q.C.

Presiding Panelist