Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Gallup, Inc. , Lincoln, NE, USA ("Complainant") represented by Jay H Begler, Buchanan Ingersoll, PC. The Respondent is Amish Country Store, Trenton, NJ, USA ("Respondent").

The domain name at issue is galluppoll.com, registered with Network Solutions, Inc.

The panelists each certify 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 a panelist in this proceeding.

Panelists are Honorable Theodore Kupferman (Retired), Honorable Irving Perluss (Retired) and Honorable Karl V. Fink (Retired) as Chair.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 5, 2000; the Forum received a hard copy of the Complaint on December 4, 2000.

On December 8, 2000, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name galluppoll.com is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 4.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On December 11, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 2, 2001 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@galluppoll.com by e-mail.

Respondent submitted a Response to the Complaint, Complainant submitted an Additional Response and Respondent submitted an Additional Response. All submissions by the parties were considered by the panel.

On January 9, 2001, pursuant to Complainant’s request to have the dispute decided by a Three Member panel, the Forum appointed as panelists Honorable Theodore Kupferman (Retired), Honorable Irving Perluss (Retired), and Honorable Karl V. Fink (Retired) as Chair.

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

A. Complainant

The Gallup Organization, Inc. is the former name of Complainant.

Complainant is the largest, oldest, and best known opinion polling service in the United States and the world. Established prior to World War II, Complaint has used the trademarks GALLUP and GALLUP POLL as trademarks for over sixty years. The name and mark GALLUP is, in fact, one of the best known trademarks in the country.

Complainant has registered GALLUP, GALLUP POLL and other GALLUP marks, well before the registration by Respondent of the domain name. The first registration was January 31, 1984, Reg. No. 1,266,004.

Complainant is the owner of the following domain names: gallup.net; gallup-poll.com; gallup-poll.org; and gallup-consulting.com. The domain name of Respondent galluppoll.com is virtually identical to Complainant’s registered marks. GALLUP and GALLUPPOLL, and to its domain names, gallup-poll.com and gallup-poll.org.

Respondent has registered "BillBradley2000.com" without a valid reason which shows "bad faith".

Cumulative business conducted under the GALLUP Marks in the United States has exceeded one billion dollars.

Through its affiliations with CNN News, the Gallup name has been used exclusively on television in this country. Gallup Poll is mentioned in virtually every CNN Broadcast involving polling.

Complainant owns a web site, gallup.com to which users worldwide have access. That web site gets extensive traffic and has had visits by as many as 100,000 individuals in a single day. The mark Gallup Poll is mentioned extensively and additionally there is a complete separate section of the web site for the GALLUP POLL.

Respondent is not a licensee of Complainant, nor has Respondent ever been authorized by Complainant to use Respondent’s domain name GALLUPPOLL.COM or any name including GALLUP.

Respondent has never been in the polling business and has not actually used the domain name commercially.

Since Respondent has never been in the polling business, Respondent can not use the GALLUP POLL to identify its business. There is no legitimate reason for Respondent to own the galluppoll.com domain name. It is clear, therefore, that Respondent has acted in bad faith.

Respondent’s inactivity or non use of the name for over two years amounts to the domain name being used in "bad faith".

The domain name registered by Respondent is identical or confusingly similar to the trademarks in which Complainant has rights, Respondent has no rights or legitimate interests in respect of Respondent’s domain name, and Respondent’s domain name has been registered in bad faith.

B. Respondent

Respondent admits to the existence of and use by Complainant of a trademark for "Gallup", which was registered on May 4, 1999. Respondent denies that Complainant owns a mark "Gallup Poll." The Federal trademark "The Gallup Poll" was registered on January 31, 1984 by the Gallup family and is held by the Gallup Organization, Inc. of 53 Bank Street, Princeton, New Jersey.

Respondent admits to never having been in the polling business, but denies any requirement to do so. Respondent admits that it has not used the domain name galluppoll.com commercially.

Respondent denies that consumers can readily believe the site is linked to or supported by Complainant.

There is no indication on galluppoll.com, or anywhere, that galluppoll.com is for sale and it is not for sale.

Respondent admits that it is not a licensee of Complainant.

Respondent registered the domain name galluppoll.com on October 29, 1998.

While not identical, there is confusion between some of the registered marks of Complainant and the domain name galluppoll.com. However, Respondent contends the registered trademarks are unenforceable as they have fallen into common generic usage over time. The term "gallup poll" is generic, and defines a particular class of public opinion poll as defined in dictionaries and is not the exclusive province of Complainant.

Confusion can be cured by Respondent’s offer to post a disclaimer and link to gallup.com.

Respondent has rights and a legitimate interest in the domain name.

Respondent has acquired a trademark right to use "Gallup Poll" which is registered to Respondent in New Jersey.

Respondent registered the domain name in good faith for a good faith use.

Respondent, Amish Country Store is the name utilized by Eric R. Keller to register and develop galluppoll.com, and thus Eric R. Keller and Amish Country Store shall be considered the Respondent. Eric R. Keller is the father of Eric Gallup Keller, age 15, who is the first great-grandchild of the late George H. Gallup, founder of the Gallup Organization.

Respondent has been preparing to utilize the domain name for a legitimate non-commercial use of the site, which will include presentation of historical information and commentary, which is an offering of goods and services, but not on a commercial basis.

The Gallup Organization, Inc. is the former name of Complainant.

Complainant has registered GALLUP, GALLUP POLL and other GALLUP marks, well before the registration thereof by Respondent of the domain name. The first registration was January 31, 1984, Reg. No. 1,266,004.

Respondent is not a licensee of Complainant, nor has Respondent ever been authorized by Complainant to use Respondent’s domain names GALLUPPOLL.COM or any name including GALLUP.

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

Paragraph 4(a) of the 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 has used the marks GALLUP and GALLUP POLL as trademarks for over sixty years, and holds registrations for THE GALLUP POLL MONTHLY, GALLUP, SRI GALLUP, and THE GALLUP SCHOOL. Complainant’s evidence demonstrates that Complainant has rights in the GALLUP POLL terms contained in the domain name. The marks have not become generic.

The domain name galluppoll.com is similar to Complainant’s various GALLUP and GALLUP POLL marks. The deletion of a space between GALLUP and POLL and the addition of the TLD ‘.com’ is insignificant for purposes of this analysis. See, e.g., Nintendo of America Inc v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where the Respondent combined the Complainant’s POKEMON and PIKACHU marks to form the domain name pokemonpikachu.com); Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that "[n]either the addition of an ordinary descriptive word…nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY" and thus Policy 4.a.(i) is satisfied).

No Rights or Legitimate Interest ICANN Policy ¶ 4(a)(ii)

Respondent has linked the domain name to an inactive website. Therefore, Respondent has failed to make use of the domain name, either for commercial or non-commercial purposes. Policy ¶ 4(c)(i), (iii). Also, Respondent is not in the polling business and cannot claim to be commonly known by the famous GALLUP mark. Policy ¶ 4(c)(ii). See BMW AG v. Loophole, D2000-1156 (WIPO Oct 26, 2000) (finding no rights in the domain name where the Respondent claimed to be using the domain name for a non-commercial purpose but had made no actual use of the domain name).

Respondent’s New Jersey state trademark which infringes Complainant’s marks does not give it rights under the policy.

Registration and Use in Bad Faith ICANN Policy ¶ 4(a)(iii)

Policy ¶ 4(b) is non-exclusive and therefore, circumstances other than those listed in the policy of bad faith can meet the requirement set forth under Policy ¶ 4(a)(iii). See Educational Testing Service v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that the Policy "[I]ndicates that its listing of bad faith factors is without limitation").

Given the wide spread recognition of the GALLUP mark, registration of a domain name containing the mark is likely to cause confusion with the owner of the mark. Registration of a domain name by someone with no connection to the famous mark is evidence of bad faith. See America Online Inc. v. Shenzhen JZT Computer Software Co. Ltd, D2000-0809 (WIPO Sept. 6, 2000) (finding that "gameicq.com" and "gameicq.net" are obviously connected with services provided with the world-wide business of ICQ and the very use by someone with no connection with the product suggests opportunistic bad faith); Household Int’l, Inc. v. Cyntom Enterprises, FA 95784 (NAF Nov. 7, 2000) ("Just as the employment of a well-known business name for no particularly good reason undermines any claim to legitimate interest, so it may also support an inference of a bad-faith attempt to use the name to harass or exploit its legitimate owner…Respondent, if he ever was serious in the registration of this domain name, must have relied on the good chance he would attract [Complainant’s] customers"); Exxon Mobil Corporation v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that the Respondent had actual and constructive knowledge of the Complainant’s EXXON mark given the world-wide prominence of the mark and thus the Respondent registered the domain name in bad faith).

Respondent has made no use of the domain name since registration on October 29, 1998. Passive holding of a domain name for over two years is evidence of bad faith use of a domain name. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (finding that passive holding of a domain name is use of the domain name in bad faith); Mondich & Amer. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the Respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).

Based upon the above findings and conclusions, and pursuant to Rule 4(i), it is decided by the panel as follows:

THE PANEL DIRECTS THAT THE DOMAIN NAME "GALLUPPOLL.COM" REGISTERED BY RESPONDENT BE TRANSFERRED TO COMPLAINANT,