Generic Top Level Domain Name (gTLD) Decisions

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

Complainant is E. & J. Gallo Winery, 600 Yosemite Boulevard, P.O. Box 1130, Modesto, California 95353, U.S.A. (Gallo). Respondent is Hanna Law Firm, 223 East Market Street, Warrensburg, Missouri 64903, U.S.A. (Hanna Law Firm).

The domain names in issue are:

bartlesandjaymes.com, and bartlesandjaymes.net.

The registrar is Network Solutions, Inc. (NSI).

The WIPO Arbitration and Mediation Center (the Center) received Gallo’s complaint on June 16, 2000, by email, and on June 19, 2000, via hard copy. The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Gallo made the required payment to the Center. The formal date of the commencement of this administrative proceeding is June 29, 2000.

On June 20, 2000, the Center transmitted via email to NSI a request for registrar verification in connection with this case. On June 25, 2000, NSI transmitted via email to the Center NSI’s Verification Response, confirming that the registrant is Hanna Law Firm, and the domain name registrations in issue are in "Active" status.

On June 23, 2000, the Center received "Supplement to Section V of Complaint".

On June 29, 2000, the Center transmitted Notification of Complaint and Commencement of the Administrative Proceeding, together with a copy of the Complaint, via email and post/courier to Hanna Law Firm. The Center advised that the response was due by July 18, 2000.

On July 11, 2000, the Center received via email Hanna Law Firm’s response to the complaint. The response in hard copy was received July 13, 2000.

On July 17, 2000, the Center advised the parties via email that David W. Plant (USA) had been appointed as the panelist in this proceeding, and absent exceptional circumstances, the Administrative Panel’s decision is due July 30, 2000.

On July 26, 2000, the Center advised the parties that the due date for this decision had been extended to August 6, 2000.

The complaint is based on Gallo’s trademark BARTLES & JAYMES, which is the subject of more than five U.S. federal registrations and 250 registrations worldwide (paragraph 12.a.). Printouts regarding such registrations appear at Annex C to the complaint.

Gallo avers (paragraph 12.d.) the BARTLES & JAYMES mark is famous worldwide, has been in use since 1984, is "perhaps the most recognized brand name of coolers [wine coolers and flavored malt coolers] in the world," and is "the leading brand in the cooler category in the United States." In 1999, nearly 5.8 million cases of BARTLES & JAYMES coolers were shipped to approximately 48 countries and territories.

Gallo avers inter alia as follows --

At paragraph 11, (1) the domain names are confusingly similar to the BARTLES & JAYMES trademark, (2) Hanna Law Firm has no rights or legitimate interests in respect of the domain names, and (3) the domain names were registered and are being used in bad faith.

At paragraph 12.b., the domain names are not only "confusingly similar", but also are "essentially identical", to the BARTLES & JAYMES mark.

At paragraph 12.c., Hanna Law Firm lacks rights and legitimate interests and acted in bad faith.

At paragraph 12.f., on June 5, 2000, Gallo "sent" a cease and desist letter to Hanna Law Firm. A copy of the "Express Mail" letter is at Annex D. Hanna Law Firm did not respond to the letter.

At paragraph 12.g., Hanna Law Firm is a "cybersquatter" who has acquired domain names for other famous marks. A copy of NSI’s WHOIS search for the Hanna Law Firm name appears at Annex E 1.

At paragraph 12.h., Gallo’s counsel has learned from counsel for Sears Roebuck and Estee Lauder that, upon receiving a cease and desist letter, Hanna Law Firm’s practice is to begin operating "a complaint website." Gallo "fully expects" to see such a website in retaliation for the June 5 letter. In its Supplement to Section V of Complaint, Gallo states that on about July 16, 2000, Hanna Law Firm started "two retaliatory ‘complaint’ web sites." Copies of pages from the websites are at Annex A1 to the Supplement.

At paragraph 12.i., "Notwithstanding Respondent’s failure to directly seek compensation," Hanna Law Firm’s conduct "unequivocally constitutes bad faith conduct," especially in light of Hanna Law Firm’s "pattern of operating retaliatory web sites after receiving a cease and desist letter ... ."

At paragraph 13, Gallo requests that the domain names in issue be transferred to Gallo.

Hanna Law Firm does not contest the "similarity" between Gallo’s marks and the domain names in issue. Hanna Law Firm does not deny it has registered "a small number" of domain names that "match other trademarks." (Paragraph A.1.)

At paragraph A.2., Hanna Law Firm "vigorously denies" that (a) the domain names were "registered in bad faith," and (b) Hanna Law Firm has "no legitimate interests in these domain names."

In addition, Hanna Law Firm avers inter alia:

At paragraph A.3. --

(a) Hanna Law Firm registered the domain names "for the purpose of creating Constitutionally protected Consumer Advocacy Free Speech complaint sites,"

(b) it is "a strong believer in the public exposition of complaints against certain corporations and has registered certain domain names and established complaint sites at those domain names to further this belief,"

(c) it has never used the domain names for any purpose "other than as a consumer complaint site,"

(d) it believes that allowing consumers to voice complaints about Gallo’s company and products "is a fair use and legitimate interest of a trademark and the domain names,"

(e) it maintains other sites using well-known trademarks "for the purpose of allowing consumers to voice objections" about the owners of the trademarks, and

(f) two U.S. federal court opinions are relevant 2.

At paragraph A.4., --

Gallo’s charge that Hanna Law Firm waits till it receives a cease and desist letter and then establishes a complaint site is "incorrect and unfounded," because inter alia:

(a) Hanna Law Firm began preparations for its SEARSROEBUCK.COM complaint site "several weeks" before receiving a cease and desist letter,

(b) the sites in issue were operational before receiving Gallo’s cease and desist letter,

(c) a printout at Exhibit A shows "not only were parts of the Web site designed, but also uploaded, as early as June 7, 2000," prior to receipt of the June 5 letter 3,

(d) "the whole Web site was uploaded and operational on June 7, 2000," though "slight changes" were made over the following two days,

(e) Gallo is aware that Hanna Law Firm moved the domain names from where they were parked to Hostsave, but Gallo claims it never looked "to see if a Web site also became available at that time" (Hanna Law Firm refers to Annex A to the complaint),

(f) preparations for "the sites" were begun in February of 2000, referring to the affidavit of Nancy Hoogstraat at Exhibit B 4, and

(g) the ESTELAUDER.COM site "is currently operational and being used for its intended purpose as a complaint site" even though Hanna Law Firm has "never had any contact" with Estee Lauder.

At paragraph A.5. --

Gallo intentionally misrepresents the timing issue (referring to paragraph 12(h) of the complaint and to the supplement to the complaint). Hanna Law Firm avers inter alia:

(a) the sites in issue were operational on June 7, 2000, before the June 15, 2000, filing of the complaint here, and

(b) Hanna Law Firm’s Web server logs show visits in June to "the sites" by users at the "ejgallo.com" domain name, at the IP address corresponding to Gallo’s counsel’s domain, and at the domain name of another counsel to Gallo.

At paragraph A.6. --

Gallo’s assertions that Hanna Law Firm has attempted to circumvent a claim of bad faith are "unfounded and incorrect." Hanna Law Firm avers inter alia:

(a) if Hanna Law Firm had such motive, Gallo does not explain why Hanna Law Firm "would not have taken more immediate steps to establish the alleged ruse," and

(b) Hanna Law Firm merely established the complaint sites "when it fit" its schedule --"all within the course of a few weeks, and without regard to the timing of any cease and desist letters ... ."

At paragraph A.7. --

(a) Hanna Law Firm has refused "a substantial cash offer" from Sears, and

(b) "disliking the product or actions of multiple trademark holders (or having family and staff with such tastes) is still not evidence of bad faith."

At paragraph A.8., Hanna Law Firm avers that none of the fours examples of bad faith set out in Paragraph 4.b. of the Policy has been established here, e.g. --

(a) Neither of the domain names in issue has been offered for sale (Paragraph 4.b.(i)).

(b) Hanna Law Firm did not register the two domain names to prevent Gallo from reflecting the BARTLES & JAYMES mark in a corresponding domain name. Gallo has been registering domain names since as early as 1996. Gallo has registered at least 90 domain names. Gallo did not register the two domain names in issue. BARTLESANDJAYMES.ORG and BARTLES-AND-JAYMES.COM are still available. Gallo may be able to register its mark as a domain name in more than 200 top level domains. Gallo’s true motivation is to squelch dissent. Gallo does not intend to put a domain name in issue in active use "reflecting the mark in a corresponding domain name." Gallo or its attorney has registered GALLOSUCKS.COM, GALLOSUCKS.NET, GALLOSUCKS.ORG, BARTLESANDJAYMESSUCKS.COM, BARTLESANDJAYMESSUCKS.NET and BARTLESANDJAYMESSUCKS.ORG 5. As of July 7, 2000, only six of Gallo’s 90 domain names were in use for "an obvious Web site," and only one did not contain the Gallo name. (Paragraph 4.b.(ii))

(c) Gallo and Hanna Law Firm are not competitors (Paragraph 4.b.(iii)).

(d) The sites at the domain names in issue are non-commercial sites. No money is collected. No advertising or sponsorship opportunities are available. Hanna Law Firm is not referred to at the sites. The domain names are not for sale. The sites are "solely set up as complaint sites for disgruntled customers" of Gallo to express their opinions. Both sites contain disclaimers that they are not affiliated with Bartles and Jaymes 6. (Paragraph 4.b.(iv)).

At Paragraph A.9., Hanna Law Firms urges that Gallo should be held to have filed the complaint in bad faith and to have abused the administrative process. Hanna Law Firm avers that Gallo had reason to be aware "the complaint site" was operational before filing the complaint and supplement "gauged to make it look like the establishment of the site was a retaliatory act ... ."

Paragraph 4.a. of the Policy directs that Gallo must prove, with respect to each domain name in issue, each of the following:

(i) The domain name in issue is identical or confusingly similar to the BARTLES & JAYMES mark in issue here, and

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

(iii) The domain name has been registered and is being used in bad faith.

Paragraph 4.b. of the Policy sets out four illustrative circumstances, which for purposes of Paragraph 4(a)(iii) above shall be evidence of the registration and use of a domain name in bad faith.

Paragraph 4.c. of the Policy sets out three illustrative circumstances any one of which, if proved by respondent, shall demonstrate respondent’s rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii) above.

The illustrative circumstances in Paragraphs 4.b. and 4.c. are not the only circumstances that may be relevant in a proceeding under the Policy.

Gallo has the burden of proving this element and each of the other two elements of Paragraph 4.a. of the Policy.

Not only are the BARTLES & JAYMES mark and the domain names in issue virtually identical on their faces, Hanna Law Firm does not contest "the similarity between" the BARTLES & JAYMES mark and the domain names. Nor does Hanna Law Firm attempt to contest the Policy, Paragraph 4.b.(iv) example of bad faith to the extent the example includes intentionally attempting to attract Internet users "by creating a likelihood of confusion." This characterization clearly applies to Hanna Law Firm’s conduct with respect to establishing the two complaint websites.

Thus, on this record, both identity and confusing similarity have been established.

On this record, no challenge has been leveled with respect to (1) the validity of the BARTLES & JAYMES mark or any registration of the mark, (2) Gallo’s rights in the BARTLES & JAYMES mark with respect to Bartles & Jaymes’s goods, (3) the global fame and goodwill associated with the mark, or (4) any fact averred by Gallo as to promotion of the mark, use of the mark, and shipments of goods under the mark.

Hanna Law Firm does dispute Gallo’s assertion that Hanna Law Firm has no rights or legitimate interest in the two domain names in issue. As a general proposition under United States law, Hanna Law Firm appears to have the right to establish "complaint websites" for the purpose of "allowing consumers to voice complaints" about Gallo and Bartles & Jaymes. It appears also under United States law that Hanna Law Firm has the right to mention Bartles & Jaymes and its mark in the text at such a website. However, it is not so clear that Hanna Law Firm is entitled to use the Bartles & Jaymes name or mark as part of Hanna Law Firm’s address for such a complaint website -- notwithstanding Hanna Law Firm’s right to establish complaint websites under appropriate circumstances.

On this record it is reasonable to infer that Hanna Law Firm’s primary purpose in creating the two websites was to establish two forums in which to register complaints with respect to Bartles & Jaymes. Gallo recognizes that the websites in issue are "complaint" websites. Even if Hanna Law Firm proceeded to establish a complaint website after being provoked by a cease and desist letter (which Hanna Law Firm denies) or for a misguided and baseless dislike of Gallo or Bartles & Jaymes, it may well have had a right to do so. However, the issue remains as to whether or not Hanna Law Firm had the right to use the Bartles & Jaymes name and mark as Hanna Law Firm’s address for the websites in issue here.

Many addresses are available which would not impinge in anyway on the BARTELS & JAYMES mark. Hanna Law Firm consciously chose two addresses, each using the BARTLES & JAYMES mark, or a confusingly similar variant, to lead Internet users to the sites. The uncontested global fame of the BARTLES & JAYMES mark is likely to lead Internet users to the complaint sites as readily as to any other site relating to Bartles & Jaymes’s products. This undoubtedly is Hanna Law Firm’s hope. Indeed, Internet users would have every reason to believe that, until they actually arrived at one of the Hanna Law Firm complaint sites, they were on their way to visiting a Bartles & Jaymes sponsored or authorized website. Hanna Law Firm is consciously counting on initial confusion to divert Internet users from sites meant to promote Bartles & Jaymes’s products to the Hanna Law Firm complaint websites. As noted in Section 5.a. above, Hanna Law Firm has not disavowed it has "intentionally attempted to attract ... Internet users ... by creating a likelihood of confusion" (Policy, Paragraph 4.b.(iv)).

Hanna Law Firm’s express disclaimers at the sites themselves come too late 7. A domain name is not only an address, it is also a personal identifier. Hanna Law Firm is here using this identifier (a) to induce a visitor to a site in order to criticize the very entity whose name is used as the address for the site, and (b) to divert the visitor from a legitimate site authorized by the entity.

The Panel does not find as a fact, and does not suggest, that Hanna Law Firm’s complaint websites are being utilized to sell goods or services. The invitation at each website to "Contact us" and to "fill out the provided form" may fuel speculation that the Hanna Law Firm has developed a creative way to find clients for its personal injury practice. However, this is only speculation and is not grounded in any evidence in the record. The Panel finds, on this record, that Hanna Law Firm’s use of the two complaint websites is "noncommercial" (Policy, Paragraph 4.c.(iii)) and is not for "commercial gain" (Policy, Paragraph 4.b.(iv)).

However, Hanna Law Firm was not justified by any legitimate considerations to use the BARTLES & JAYMES mark in Hanna Law Firm’s two website addresses. Bally Total Fitness does not avail Hanna Law Firm, because the Bally court made it plain that, in contrast to the situation here, defendant "does not use Bally in his domain name." Also, the 1992 New Kids on the Block opinion is not in connection with a domain name dispute and does not address the Policy considerations which govern here. It is not difficult to conclude that Hanna Law Firm’s choice of the two domain names was to enable Hanna Law Firm to tarnish the BARTLES & JAYMES mark and to disrupt Bartles & Jaymes’s business. That is the inherent, inevitable result of Hanna Law Firm’s use of the mark to entice Internet users to the complaint websites. The availability of numerous other addresses for the complaint websites, plus the virtual identity between the BARTLES & JAYMES mark and the addresses for the two websites, buttress this conclusion. Notwithstanding Hanna Law Firm’s free speech rights, it is fair to find that Hanna Law Firm’s selection of the BARTLES & JAYMES mark for use as the addresses of two complaint websites is not legitimate, is not fair use, and is designed to mislead and divert Bartles & Jaymes’s customers and potential customers to the complaint websites in order to tarnish the BARTLES & JAYMES mark, in violation of the Policy, Paragraphs 4.a.(ii) and 4.c.(iii).

Registration and use of the domain names in issue in bad faith are matters of the appropriate inferences to draw from circumstantial evidence. Both registration in bad faith and use in bad faith must be proved by Gallo. The record here shows that Hanna Law Firm has run afoul of the Policy, Paragraph 4.b.(iii) 8

Hanna Law Firm’s abiding motive is plainly to affect adversely the business of Bartles & Jaymes and to tarnish the BARTLES & JAYMES mark. Hanna Law Firm does not contend otherwise 9. Indeed, that is undoubtedly an ultimate purpose of the two complaint sites. It is unlikely that Hanna Law Firm has established its two complaint websites to encourage endorsements and enhance good will for Bartles & Jaymes and its products. Such a positive purpose was not intended and was to be avoided. This inference is reinforced by Hanna Law Firm’s argument that "disliking the products or actions of multiple trademark holders" is not evidence of bad faith.

Hanna Law Firm and Bartles & Jaymes are not "competitors" (cf. Paragraph 4.b.(iii)) in a strict product v. product sense. But this does not end a Paragraph 4.b.(iii) inquiry 10. Paragraph 4.b. simply provides illustrative examples of evidence that establishes bad faith. Here, Hanna Law Firm’s enthusiastically declared purpose of the two websites makes it plain that the two domain names are likely to divert potential Bartles & Jaymes customers from authorized Gallo sites to one or both of the complaint sites. This likelihood is aggravated by Hanna Law Firm’s selection of two versions of the BARTLES & JAYMES mark, i.e. the ".com" and the ".net" versions, and the establishment of two separate complaint websites. This is hardly necessary and hardly consistent with a good faith use of the mark as a domain name. Taking unnecessary steps to enhance the prospects of disrupting Bartles & Jaymes’s business and tarnishing its mark are not consistent with a bona fide endeavor. On the other hand, they are consistent with an attempt to dilute the famous BARTLES & JAYMES mark.

Hanna Law Firm’s contention that BARTLESANDJAYMES.ORG and BARTLES-AND-JAYMES.COM are still available to Gallo is disingenuous. If Gallo were to establish a website at either or both of these domain names, it would only exacerbate the confusion caused by Hanna Law Firm’s registration and use of the two complaint websites. The ordinary Internet user would likely believe -- erroneously -- that all four domain names were addresses of authorized sites. If the Internet user first visited a Hanna Law Firm site, the Internet user would not only have been confused with regard to that site, but it is also likely that the user would assume that some or all of the other websites were complaint sites. This would further Hanna Law Firm’s objective of tarnishing the BARTLES & JAYMES mark and disrupting Bartles & James’s business.

On this record, it is fair to infer that, while Hanna Law Firm’s desire to establish a complaint websites may well have been in good faith and legally justified, its registration and use of two domain names virtually identical to the BARTLES & JAYMES mark as addresses for the website have been in bad faith and not legally justified. Free speech does not permit this use of a famous mark. As stated in the decision in WIPO Case No. D2000-0300 --

"... the right to express one’s views is not the same as the right to use another’s name to identify oneself as the source of those views." 11

With respect to the domain name in issue, Hanna Law Firm has attempted to show that the first and the third circumstances set out in Paragraph 4.c. of the Policy must be resolved in Hanna Law Firm’s favor, viz.:

(i) before any notice to Hanna Law Firm of the dispute, its use of or demonstrable preparations to use the domain name were in connection with a bona fide offering of goods or services, and

* * *

(iii) Hanna Law Firm is making 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 mark at issue."

Hanna Law Firm does not aver that it or a related entity has been commonly known by the domain name (cf. Paragraph 4.c.(ii) of the Policy).

As to timing, the record is in conflict. Gallo’s unsupported speculations, Hanna Law Firm’s averments (including the conclusory Hoogestraat affidavit), and the closeness of the date of the June 5 letter and the June 7 start up of the websites 12, leave much to be desired as a matter of credible evidence 13. The Panel can not conclude with any comfort that, before any notice to Hanna Law Firm of "the dispute" Hanna Law Firm had used or prepared to use the domain names. Nor can the Panel conclude that Hanna Law Firm’s conduct was not retaliatory 14. However, affording Hanna Law Firm the benefit of any doubt on these scores, the use by Hanna Law Firm of the BARTLES & JAYMES mark for two domain names still was not bona fide, as we have shown above.

As to "legitimate noncommercial or fair use of the domain name[s], without intent for commercial gain," Hanna Law Firm has twice used the BARTLES & JAYMES mark as addresses for concurrently existing complaint websites. Hanna Law Firm’s inherent, if not conceded, purpose in so doing is to tarnish the mark and to disrupt Bartles & Jaymes’s business.

These findings buttress the conclusion in Section 5.c. above that Hanna Law Firm’s registration and use of the two domain names have been in bad faith 15.

In light of the findings by the Panel, the Panel concludes that Gallo has met its burden of proving (a) the two domain names in issue are identical to the BARTLES & JAYMES mark, (b) Hanna Law Firm has no rights and no legitimate interest in respect of the domain names in issue, and (c) the domain names in issue have been registered and are being used by Hanna Law Firm in bad faith.

Accordingly, the Panel requires that the registration of the "bartlesandjaymes.com" and "bartlesandjaymes.net" domain names be transferred to Gallo.

David W. Plant
Presiding Panelist

August 3, 2000

Footnotes:

1. Copies of NSI WHOIS printouts for the two domain names in issue appear at Annex A. They show the record for the ".com" domain name was created June 21, 1999; and the record for the ".net" domain name, June 24, 1999.

2. New Kids on the Block v. News America Publishing, Inc., [1992] USCA9 2148; 971 F.2d 302 (9 Cir.1992); Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp.2d 1161 (C.D. Cal. 1998).

3. Hanna Law Firm avers a "return receipt" was attached to the letter. Such a receipt is not part of this record.

4. The June 22, 2000, Hoogstraat affidavit states in terse, conclusory terms -- "preparations for the construction" of the two websites "began in February of 2000," and the websites "were operational on June 7, 2000."

5. We note that the NSI WHOIS information as to these six domain names (Exhibit C) shows that they were registered June 16, 2000, by Weinberg Legal Group, Gallo’s counsel in this proceeding.

6. These statements are: "We are not affiliated with Bartles and Jaymes in any way," and "This site is in no way affiliated with Bartles and Jaymes."

7. The first words a visitor to either complaint site sees are:

"Got a complaint about Bartles and Jaymes? This is a place you can voice it.
"HAVE A COMPLAINT ABOUT BARTLES AND JAYMES?"

The disclaimers appear later in the text at the websites.

8. In support of its contention that the two domain names are not for sale (Paragraph 4.b.(i)), Hanna Law Firm avers that it has turned down "a substantial cash offer" from Sears. Without knowing the circumstances surrounding the "offer" (e.g., Was it solicited or unsolicited? Was it insufficient even though "substantial"?), the Panel can rely (and does rely) only on Hanna Law Firm’s unchallenged averments that the two domain names are not for sale. Indeed, Gallo refers to Hanna Law Firm’s "failure directly to seek compensation."

9. Hanna Law Firm challenges the applicability of Paragraph 4.b.(iii) only on the ground that Hanna Law Firm and Gallo are not "competitors".

10. See decision in WIPO Case No. D2000-0279 for a discussion of the term "competitor".

11. See also the decision in WIPO Case No. D2000-0181.

12. Gallo avers the June 5 "Express Mail" letter was "sent" on June 5. It does not aver the letter was deposited at a U.S. Postal Service Express Mail desk on June 5. If the June 5 letter had been so deposited, it should have arrived June 6. If it were not deposited until June 6 or later, Hanna Law Firm’s averments as to its June 7 website activities are entirely plausible. The Panel is left with the impression that there is more to this aspect of the dispute than has been revealed by either party.

13. Gallo’s Annex A suggests that the two domain names in issue were registered with NSI in June 1999. Hanna Law Firm’s averments at Paragraph A.5. as to (1) operation before the filing of the complaint here and (2) visits to the sites are of no help. Nor are Hanna Law Firm’s gratuitous and conclusory remarks at Paragraph A.6.

14. Gallo’s averments as to Hanna Law Firm’s conduct vis-a-vis Sears Roebuck and Estee Lauder are hearsay and not reliable. Hanna Law Firm’s averment that it simply put the two complaint websites into operation to fit its schedule rings hollow in light of its averment that it began preparing for the websites in February 2000 -- when it was not until June 7, closely proximate in time to the date of the June 5 letter, that they were up and running.

15. Hanna Law Firm’s attempt to paint Gallo as the party acting in bad faith in initiating this proceeding (paragraph A.9.) is not persuasive.