Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Gallup Inc. , Lincoln, NE, USA ("Complainant") represented by Jay Begler, Buchanan Ingersoll, PC. The Respondent is Heejo Kim aka Gallupgeorgehorace.com aka Georgehoracegallup.com, Seoul, KOREA ("Respondent").

The domain names at issue are gallupgeorgehorace.com and georgehoracegallup.com 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 a panelist in this proceeding.

James Alan Crary as Panelist (Chairperson).

Honorable James Carmody as Panelist

M. Kelly Tillery as Panelist

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on November 15, 2000; The Forum received a hard copy of the Complaint on November 14, 2000.

On November 28, 2000, Network Solutions confirmed by e-mail to the Forum that the domain names gallupgeorgehorace.com and georgehoracegallup.com are 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 ICANNís UDRP.

On November 28, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 18, 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 Respondentís registration as technical, administrative and billing contacts, and to postmaster@gallupgeorgehorace.com and postmaster@georgehoracegallup.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On December 22, 2000, pursuant to Complainantís request to have the dispute decided by a Three Member panel, the Forum appointed James Alan Crary, Honorable James Carmody, and M. Kelly Tillery.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

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

A. Complainant

Complainant is the largest, oldest and best opinion polling service in the United States and the world. GALLUP trademark has been in use for approximately 61 years and is one of the best-known trademarks in the country. Complainant asserted that its trademark is famous ("claim of celebrity"). The trademark is associated with business exceeding one billion dollars. Advertising and promotion of the mark exceeds $25 million dollars in the United States. A search of Lexis/Nexus yielded for than 100,000 stories related to GALLUP. Through itís affiliation with CNN News the GALLUP name has been used extensively in television. Complainant has conducted seminars and distributed literature for many years prior to the registration of the disputed domain names and publishes itís own magazine "The Monthly Gallup Poll" which is distributed to clients worldwide.

Complainant owns the web site gallup.com that has been visited as many as 100,000 times in a single day.

Complainant circulates an e-mail newsletter to a large client base known as "Tuesday Gallup Briefing".

Complainant notes Dr. Horace Gallup is an historical figure.

The Complainant has registered GALLUP POLL and other GALLUP marks as well as a registration consisting of a portrait of Dr. Gallup. Most of these registrations were well before the Respondentís registration of the disputed names.

The Complainant is the owner of gallup.net; gallup-poll.com; gallup-poll.org; gallup-consulting.com.

Complainant maintains that the disputed domain names are virtually identical to the Complainantís registered marks and to its domain names.

Respondent had no rights or legitimate interests in the disputed domain names nor has the Respondent ever been in the polling business or used the domain names commercially.

An Internet user seeking georgehoracegallup.com or gallupgeorgehorace.com is taken to a page where an error message appears indicating that the page cannot be displayed.

The Complainant did not license Respondent nor did it authorize Respondent to use the disputed domain names.

Complainant maintained that the registration was in bad faith since Respondent had never been in the polling business or associated or affiliated with the Complainant it had no right to use the disputed domain name to identify itís business. Since it had no legitimate reason to own the disputed domain names, it was clear Respondent acted in bad faith.

B. Respondent

No response was submitted.

In view of the lack of a response filed by the Respondent as required under paragraph 5 of the Rules, this proceeding has proceeded by way of default. Hence, under paragraphs 5(e), 14(a) and 15(a) of the Rules, the Panel is directed to decide this administrative proceeding on the basis of the Complainant's undisputed representations. In that regard, the Panel makes the following specific findings:

Complainant has established valid trademark rights pursuant Policy 4(a)(i). The GALLUP mark is a registered service mark in the US Patent and Trademark Office. The mark is famous and has been in use in commerce for sixty (60) years as a polling organization. The disputed domain names georgehoracegallup.com and gallupgeorgehorace.com are confusingly similar to Complainantís mark since they consist of variations of the name of the founder of the GALLUP organization, a historical figure.

Complainantís trademark has acquired a famous and distinctive secondary meaning associated with George Horace Gallup Polling and GALLUP organization.

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.

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute. "A Panel shall 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 seems applicable". The Respondent has not submitted any answer to the Panel. Based on Rule 15(a), the Panel will decide this dispute based solely upon the Complainantís submission, ICANN Rules and Policy, and other applicable principles of law.

The Panel concluded that the disputed domain names are confusingly similar with Complainantís famous trademark since the disputed domain names consist of variations of the name of the founder of the GALLUP organization and the father of modern polling.

The Complainant asserts that Respondent has no rights or legitimate interests in the domain names in question. The Respondent is in default and did not answer the allegations in the complaint. Pursuant to Rule 14(a) the Panel "shall proceed to a decision on the complaint". The Panel concluded that the Respondent had no right or legitimate interests in the disputed domain names. Respondent has furnished no evidence nor does the record contain evidence of any legitimate use or preparation to use the disputed domain name or that Respondent was known by the disputed domain names or is making a legitimate non-commercial fair use of the domain name. It was also concluded by the Panel that mere registration does not establish rights or legitimate interests in the disputed domain name so as to avoid the application of paragraph 4(a)(ii) of the Policy.

Since the Respondent did not answer the complaint, Respondent has presented no good faith rationale for the registration or the use of the disputed domain names.

The foundation of the Complainantís marks is the name of a historical figure, George Horace Gallup. Complainant uses the GALLUP mark in connection with Complainantís business in providing products and services associated with that name and mark. Even though the Respondent has established no web site, it was concluded in this case that the registration of the disputed domain names which correspond to the Complainantís establish mark was an act of bad faith in that the registration prevented the Complainant from using itís mark in a corresponding domain name, even though no other preclusive registrations by the Respondent had been demonstrated.

The Complainantís trademark has an exclusive connection to various commercial products and services and has limited potential utility, if any, apart from its association. The Complainant has gone to the time, energy, and expense to establish the marks which consist of variations of the name of the organizationís founder. It would be a stretch of the imagination to conceive how the disputed domain names could be used by the Respondent in a manner that would not infringe on Complainantís rights as a trademark holder. Further, Respondent has made no showing that it might intend to use the mark for a legitimate purpose. It was therefore concluded that the Complainant established bad faith registration and use.

Based on the above findings and conclusions, and pursuant to Policy 4(i) it is directed that the domain name gallupgeorgehorace.com and georgehoracegallup.com be transferred to the Complainant.