1. Parties and Contested Domain Name

Overview

1.0 What is set out under this heading of "Parties and Contested Domain Name" is discussed and found herein under the heading of "Discussion and Findings" (paragraphs 5.0 et seq under that heading), by or through information set out herein under the head ings of (i) "Procedural History" (paragraphs 2.0 et seq under that heading); (ii) "Factual Background" (paragraphs 3.0 et seq under that heading); and (iii) "Parties' Contentions" (paragraphs 4.0 et seq under that heading).

The Parties

1.1 In this proceeding the parties (herein "the Parties") are (i) complainant Timothy Alan Dick of Beverly Hills, Michigan U.S.A. (herein "the Complainant"); and (ii) respondent Tim Allen Club of High Prairie, Alberta Canada (herein "the Respondent").

The Contested Domain Name

1.2 In this proceeding the contested domain name (herein "the Contested Domain Name") is timallen.com.

2. Procedural History

Overview

2.0 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 et seq under that heading) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or through one or more of admission, notice, perception and inference) any of the information set out in paragraphs 2.1.1 et seq under this heading of "Procedural History".

Events That Occurred On Or Before 8 January 2001

2.1.1 On 8 January 2001 eResolution (herein "the Provider") provided the Administrative Panel a procedural history of this proceeding, largely as set out as paragraphs 2.1.2 through 2.1.16 hereof.

2.1.2 The Complainant's complaint (herein "the Complaint") was (i) filed with the Provider in electronic format on-line using the Provider's complaint form through the Provider's website on 12 October 2000; and (ii) received by the Provider in hardcopy f ormat on 17 October 2000. Payment was received by the Provider on 19 October 2000. The complete annexes of the Complaint were received by the Provider on 8 November 2000.

2.1.3 Upon receiving all the required information, the Provider proceeded to (i) confirm the identity of the registrar for the Contested Domain Name; (ii) verify that registrar's Whois Database and confirm all the required contact information for the Res pondent; (iii) verify if the Contested Domain Name resolved to an active web page; and (iv) verify if the Complaint was administratively compliant.

2.1.4 The inquiry set out in paragraph 2.1.3 hereof lead the Provider to the following conclusions: (i) the registrar for the Contested Domain Name is Network Solutions Inc. (herein "the Registrar for the Contested Domain Name"); (ii) the Whois database contains all the required contact information; (iii) the Contested Domain Name resolves to an active web page; and (iv) the Complaint is administratively compliant.

2.1.5 On 12 October 2000 an e-mail was sent by the Provider, to the Registrar for the Contested Domain Name, to obtain confirmation and a copy of the registration agreement between the Respondent and the Registrar for the Contested Domain Name. On 13 Oc tober 2000 the requested information was received by the Provider.

2.1.6 On 13 November 2000 the Provider sent a notification to the Registrar for the Contested Domain Name in order to inquire as to the status of the Contested Domain Name, since the Whois database record was expired. On 30 November 2000 the Registrar fo r the Contested Domain Name confirmed to the Provider that the current domain name holder was the "Tim Allen Club".

5.7.1 The Provider then proceeded to send a copy of the Complaint in accordance with Rule 2(a) of ICANN's Rules for Uniform Domain Name Dispute Resolution Policy (herein individually "Rule" or collectively "Rules").

2.1.8 The Provider fulfilled all its responsibilities under Rule 2(a) in connection with forwarding the Complaint to the Respondent (and notifying the Complainant, the Registrar for the Contested Domain Name and ICANN) on 30 November 2000. That date is the commencement date of this administrative proceeding (herein "this proc eeding").

2.7.1 Only the e-mail to the postmaster@timallen.com was returned "undeliverable". All the faxes were successful.

2.1.10 The Complaint (complaint, official notification and all the annexes) were sent via registered mail with proof of service, to the Respondent. According to Canada Post's tracking system, all were delivered.

2.1.11 On 20 December 2000 the Respondent submitted, via the Provider's web site, a response. The signed hard copy version of that response was received by the Provider on 3 January 2001; that version was [in the Provider's opinion] received in default, since [in the Provider's opinion] it arrived three calendar days after [ what in the Provider's opinion was] the Supplemental Rule "7[(c)](iii)(4)(b)(i)" deadline.

2.1.12 On 4 January 2001 the Provider informed the Parties (i) of [what in the Provider's opinion was] the Respondent's [Supplemental Rule 7(c)(iii)(4)(b)(i) default] to submit the hard copies of the response to the Clerk's Office on time; and (ii) that according to Rule 5(e), in the absence of exceptional circumstances, the panel will decide the dispute based upon the complaint.

2.1.13 On 4 January 2001, the Provider contacted Mr. Rodney C. Kyle and requested that he act as the panel in this proceeding.

2.1.14 On 4 January 2001, Mr. Rodney C. Kyle accepted to act as the panel in this proceeding (herein "the Administrative Panel") and filed with the Provider a declaration of independence, and of impartiality, on the Provider's form for such in accordance with the Rule 7 and Supplemental Rules 9 and 4(a) of the Provider's Supplemen tal Rules, the Provider's Supplemental Rules being referred to herein individually as "Supplemental Rule" or collectively as "Supplemental Rules". (Collectively herein the Policy, the Rules, and the Supplemental Rules, as well as forms made under the Sup plemental Rules, are referred to as "the Regulation".)

2.1.15 On 8 January 2001, the Complainant and the Respondent were notified, by the Provider, that the Administrative Panel had been appointed and that a decision was to be, save exceptional circumstances, handed down on 22 January 2001.

2.1.16 The Provider forwarded to the Administrative Panel by e-mail on 8 January 2001 a user name, and by fax on 8 January 2001 a password, to allow the Administrative Panel to access an automated docket management system for this proceeding on the Provi der's web site.

2.1.17 On 8 January 2001 the Provider e-mailed the Administrative Panel that "We received a message from the Respondent acknowledging an explanation regarding [what in the Provider's opinion is] his default to submit the hardcopies of the Response to the Clerk's Office on time. Please inform me as soon as possible if you wish to r eceive this message."

Events That Occurred After 8 January 2001 But Before 18 January 2001

2.2.1 On 9 January 2001 the Administrative Panel e-mailed the Clerk's Office of eResolution to "Please deliver to me a copy of the message referred to in that e-mail." i.e. a copy of the message referred to in the e-mail quoted from in paragraph 2.1.17 hereof.

2.2.2 Later on 9 January 2001 the Clerk's Office of eResolution e-mailed the following, dated "January 04, 2001" to the Administrative Panel:

"To The Clerk and to the Panel:

"Following is an excerpt of the Clerk's letter sent to the Respondent on December 21 regarding this case.

"We interpret this to mean we have 10 calendar days by which to send in our hardcopies, either by fax or by mail. There is no mention when the hardcopy must be received at the other end. Our Canadian Priority Post envelopes with the hardcopies was origina lly to be sent on December 23 but our local post office was closed when the staff person assigned to send this took them down. As a result, due to holidays, they were not sent until December 27th. All of us involved at this end were not worried because we knew we were well within the time limit and we have receipts to prove this date.

"I wish to appeal to the panel the decision of the clerk to hold us in default. Our electronic copies were filed within the stated time limits, as was an addenda filed within the 3 days allowed, which, I would like to point out, contains the same wording.

"Jeff Burgar

"Following is text from the Clerks December 21 email to the Respondent which we strongly believe contains no ambiguity at all as to how long we have to mail our hardcopies:

"------------------------

"***If you wish to modify your Response form, you must e-mail your request and your modification to your Case Administrator within three calendar days.***

"2) Send a signed hardcopy format of the final version of the Response and all the annexes at the following address within 10 calendar days, starting today:

"****EITHER BY FAX to one of the following numbers according to your area* Canada: + 1 (514) 221-3004, California: +1 (650) 618-2332, New York +1 (212) 658-9811, Paris +33 1 53 01 68 86, ***OR to the postal address below the signature.***************

"--------------------------".

2.2.3 On 10 January 2001 the Administrative Panel e-mailed the Provider as follows:

"On my behalf, please do two things. Firstly, today please (i) e-mail to the Complainant, and to the Respondent, the following three paragraphs of this e-mail (including to attach the attachments referred to in the second of those three paragraphs); and (ii) e-mail me a copy of what you send them. Secondly, if and when eResolution receives from the Complainant the response referred to in the third of those three paragraphs, please send me a copy of that response.

"The Administrative Panel in this proceeding has asked eResolution that today the Clerk's Office of eResolution do two things.

"One thing is to e-mail the Complainant (cc. the Respondent) a copy of the e-mail that the Respondent had sent to the Clerk's Office of eResolution on 4 January 2001 regarding eResolution Supplemental Rule 7[(c)](iii)(4)(b)(i) default. Accordingly, please see the attached.

"The other thing is to notify the Complainant and the Respondent, which the Clerk's Office of eResolution does by this e-mail, that the Complainant shall have until 17 January 2001 to e-mail, to the Clerk's Office of eResolution and to the Respondent, a response to the e-mail that the Respondent had sent to the Clerk's Office of eResolution on 4 January 2001 regarding eResolution Supplemental Rule 7[(c)](iii)(4)(b)(i) default."

2.2.4 Later on 10 January 2001 the Administrative Panel received from the Provider an e-mail indicating the Provider had complied with both parts of the first request (i.e. parts "i" and "ii") stated in the first paragraph quoted in paragraph 2.2.3 hereof and that in so communicating with the Parties the Provider had further st ated the following to them by e-mail: "Please read carefully and do not hesitate to contact the undersigned should you have any questions regarding this message."

2.2.5 By the end of 17 January 2001 the Administrative Panel had not received through the Provider a response, from the Complainant, to the e-mail that the Respondent had sent to the Clerk's Office of eResolution on 4 January 2001 regarding Supplemental Rule 7(c)(iii)(4)(b)(i) default by the Respondent.

Events That Occurred On Or After 18 January 2001 But Before 22 January 2001

2.3.1 On 18 January 2001 the Administrative Panel received an e-mail rtf attachment from the Complainant, via the Provider, which (i) in view of the last paragraph quoted in paragraph 2.6.5 hereof, seemingly was also received by the Respondent on or abou t the same time as it was received by the Provider; (ii) was, on behalf of the Complainant, "Dated: January 18, 2001"; and (iii) had the following body:

"This is in response the email dated January 10, 2001, from the Panelist Rodney Kyle asking that Complainant respond to Respondent's email of January 4, 2001. The deadline for this response is January 17, 2001.

"Background

"On December 20, 2000, the Respondent submitted an electronic copy of his response to the Complainant's Complaint. On December 21, 2000, the clerk informed respondent of two deficiencies:

'1) Please ensure yourself that the Response form meets the Rules and the Policy, in particular section 5(b)(i) of the Rules, which state that the Respondent must: "respond specifically to the statements and allegations contains [sic] in the Complaint and include any and all bases for the Respondent (domain- name holder) to retain registration and use of the disputed domain name."

2) Send a signed hardcopy format of the final Response and all annexes at the following address within 10 calendar days[.]'

As noted above the Clerk set a deadline of 10 days beginning on December 21, 2000. The Clerk did not receive the hard copies from respondent until January 3, 2001. On January 4, the clerk advised the parties that the Respondent was in default and that t he decision in this case would be based on the complaint alone. The Respondent protested this result arguing that they interpreted the term 'send' to mean place in the mail. This is in response to Respondent's January 4, 2001 email and also comments on the Clerk's December 21, 2000 email.

"I. The clerk's December 21, 2000 email setting a 10 day period must be interpreted in the context of the ICANN rules and supplemental eResolution rules. The rules mandate that the defect must be corrected within the time set or a default is entered.

"Respondent argues that it complied with the Clerk's email and the applicable rules because the clerk did not indicated when the materials must be received by the Clerk's office. Complainant submits that the Clerk's instructions must be interpreted in the context of the ICANN rules and eResolution supplemental rules.

"Rule 5(b) of the ICANN Rules states that the response shall be submitted in hard copy and in electronic form. Rule 7(b)(ii)(2) of the eResolution supplemental rules states that the response shall be submitted in hard copy format. Supplemental Rule 7( c)(ii)(1) gives the Clerk 10 calendar days to notify the respondent that their response is deficient. Respondent's December 20, 2000 submission fell outside the rules because it did not include hard copies. The December 21, email from the Clerk was sent under the province of Rule 7(b)(ii)(2).

"Rule 7(c)(ii)(2) states: 'Respondent shall have 5 calendar days to correct such deficiencies and to notify Clerk's office of such corrections.' If the deficiencies are not corrected Supplemental rule 7(c)(ii)(3) goes on to state: 'If the Respondent fails to correct said deficiencies within that delay of 5 calendar days, the administrative proceedings shall be conducted on the basis of the complaint alone.'

"The Clerk's January 4, 2001 email was sent under the province of rule 7(c)(ii)(3). Thus, the time limit the Clerk gave respondent to correct the deficiencies must be interpreted in light of rule 7(c)(ii)(2) which gives the respondent 5 days to correct deficiencies.

"Complainant believes the time limit set in the Clerk's email of December 21, merely extended the time limit set forth in rule 7(c)(ii)(2) from 5 days to 10 days. Notwithstanding the fact that the rules do not give the Clerk authority to change the time limits in the rules , the Complainant did not and does not object to the Clerk's extension of the time because of the holidays.

"However, further delays are objectionable. The Clerk's time limit must be interpreted consistent with the rules. Supplemental Rule 7(c)(ii)(2) unambiguously states that the deficiencies must be corrected within 5 days. Substituting the 10 days allow ed by the Clerk, the deficiencies must be corrected within 10 days, or by December 31. Respondent did not correct its deficiencies until January 3, 2001, three days outside of the time set. Thus, the rule 7(c)(ii)(3) default applies.

"It is axiomatic that Respondent cannot claim ignorance of the law. The rules are available and Respondent clearly reviewed at least some of them. Respondent cannot complain of hardship. Respondent was aware that it could have faxed the hard copies. They could have been faxed on December 23, 2000 when respondent's staff person was late getting to the post office or on December 27, when the hard copies were mailed. Respondent also had the ability to use a commercial overnight delivery service which it did not do.

"The rules provide no situation under which a time limit is satisfied by placing something in the mail and no basis exists to modify the rules to allow placement in the mail to satisfy a time limit. The reason is simple. eResolution deals with busines s entities throughout the world. To allow the service date to be accepted would introduce substantial delays into a process which is intended to be expatiated.

"Respondent's failure to file a timely response is not the result of any ambiguity in an e-mail from the clerk. Rather, it is the result of the Respondent's own failure to review the rules that apply to this case.

"III. Because Respondent has failed to correct the first deficiency identified in the Clerk's December 21 email, rule 7(c)(ii)(3) should apply.

"The Clerk's December 21, 2000 email also indicated that the respondents December 20, 2000 submission was deficient because:

'1) Please ensure yourself that the Response form meets the Rules and the Policy, in particular section 5(b)(i) of the Rules, which state that the Respondent must: "respond specifically to the statements and allegations contains [sic] in the Complaint and include any and all bases for the Respondent (domain- name holder) to retain registration and use of the disputed domain name.'''

"Complainant submits that this deficiency was properly noted because Respondent failed to raise any legitimate legal claim or legal defense, under ICANN rules or international trademark law, to the domain name timallen.com. Respondent's criticism of I CANN is non-responsive. Respondent's 'first to register' argument is wrong and essentially endorses cyber-squatting. Respondent's argument that it should enjoy ownership of the domain name timallen.com because Mr. Allen is a celebrity, whose name is f reely available to newspapers and magazines, is based on a false premise. Newspapers and the like do not have exclusivity to the name Tim Allen. However, Respondent is asking that it be awarded exclusivity despite the fact that it can show no legitimate interest.

"Conclusion

"Application of the ICANN rules and eResolution supplemental rules requires that the panelist affirm the Clerk's decision to apply rule 7(b)(ii)(3) and decide this matter on the basis of the complaint alone."

2.3.2 In response to the attachment to the Provider's 18 January 2001 e-mail to the Administrative Panel, which attachment is quoted in paragraph 2.3.1 hereof, the Administrative Panel e-mailed the Provider that same day as follows: "Please inform me, b y reply e-mail, of the calendar date upon which the above-captioned attachment was received by eResolution's e-mail system (as contrasted with the date upon which someone at eResolution may have personally opened the e-mail or attachment)."

2.3.3 On 19 January 2001 the Provider replied to the Administrative Panel's e-mail of 18 January 2001, quoted in paragraph 2.3.2 hereof, as follows: "The attachment in question was received last January 16, 2001 at 3:11 pm by the Clerk's Office."

Events That Occurred On Or After 22 January 2001 But Before 29 January 2001

2.4.1 On 22 January 2001 the Administrative Panel e-mailed the Provider as follows:

"On my behalf, please do two things. Firstly, today please (i) e-mail to the Respondent, and to the Complainant, the following three paragraphs of this e-mail; and (ii) e-mail me a copy of what you send them. Secondly, if and when eResolution receives from each of the Parties each of the respective communications referred to in the third of those three paragraphs, please e-mail me (i) a copy of the respective communication and (ii) a statement from eResolution of the calendar date upon which the respective communication was received by eResolution's e-mail system (as contrasted with e.g. the date upon which someone at eResolution may have personally opened the e-mail or attachment).

"The Administrative Panel in this proceeding has asked eResolution that today the Clerk's Office of eResolution do two things, which the Clerk's Office of eResolution does by this e-mail.

"One thing is to notify the Parties that although a deadline of 22 January 2001 had been fixed for the Administrative Panel to communicate its decision on the complaint to the Clerk's Office of eResolution, in view of exceptional circumstances and since the Administrative Panel considers a two week extension of that deadline necessary for the Administrative Panel to be able to fulfill its duties adequately, the Administrative Panel hereby extends that deadline to the end of calendar day 5 February 2001.

"The other thing is to notify the Parties that (i) the Respondent shall have until the end of calendar day 24 January 2001 to deliver, to the Clerk's Office of eResolution and to the Complainant, by one or more e-mail attachments, evidence of the 27 December 2000 mailing asserted in the Respondent's 4 January 2001 e-mail; and (ii) the Complainant shall have until the end of calendar day 26 January 2001 to deliver, to the Clerk's Office of eResolution and to the Respondent, by e-mail a response to the submission referred to in item 'i' of this paragraph."

2.4.2 Later on 22 January 2001 the Administrative Panel received from the Provider an e-mail indicating the Provider had complied with both parts of the first request (i.e. parts "i" and "ii") stated in the first paragraph quoted in paragraph 2.4.1 hereof and that in so communicating with the Parties the Provider had further st ated the following to them by e-mail: "Read the Panel's instructions carefully and send the required information to the Clerk's Office on the appointed dates."

2.4.3 On 25 January 2001 the Administrative Panel received an e-mail from the Provider, the body of which was "Find attached information requested to the Respondent. It arrived yesterday, January 24, 2001, via fax to the Clerk's Office at 5:15 PM". (The l ist of documents annexed to the Response's form on the Provider's web site was amended by the Provider to indicate that on 25 January 2001 the Provider annexed the information; in accordance with notation stated in paragraph 3.0.2 hereof, that annex will be referred to herein as Annex R35.) Attached to that e-mail, in pdf format, was a two-page copy of a document with the title "AFFIDAVIT OF BETTY CLAYDON" and subtitled "CASE # AF-0516". The original of that copy was apparently signed by "Betty Claydon" and, according to the signed jurat in that copy, apparently "Sworn to" on the "24 [that number having been written in by hand] day of January 2001" before a "BARRISTER & SOLICITOR" and "Notary Public" i.e. "SUSAN M. LAMOTHE". The body of that copy includ es the following:

(i) on its first page, "BETTY CLAYDON, being duly sworn, deposes and says as follows:

5 I am Office Manager for Respondent Tim Allen Club.

6 On December 27, 2000 on entering my office I noticed on my desk two (2) envelopes that were to have been put in the mail on December 23 2000. As this had obviously not happened because the Post Office was closed for the holiday season, I then took thes e to the Post Office and mailed them.

7 Attached [and here it appears Betty Claydon has added, or in any event initialed, the handwritten text "as Exhibit 'A'"] is a true 200% scan of the receipt issued by the Post Office for two parcels.

8 One item is for the hardcopies to eResolution regarding the Tim Allen case. One item is for the hard copies to the Complainant's Lawyer in this same case.

9 The actual items described here are being faxed and mailed today to eResolution."; and

(ii) on its second page,

1. in the top right corner, and apparently signed there by the same "Susan M. Lamothe" referred to in the preamble of this paragraph 2.4.3 hereof, the following, including hand-written passages appearing in square brackets in this decision: "This is Exhi bit ['A'] referred to in the Affidavit of [Betty Claydon] Sworn before me this [24] day of [JANUARY] A.D. [2001] [Signature] A Commissioner in and for Alberta SUSAN M. LAMOTHE BARRISTER & SOLICITOR" and

2. as part of a column of text centered left-to-right, (a) at the top, "Canada Post Postal Outlet High Prairie"; (b) below that, apparently the date "2000/12/27" (i.e. 27 December 2000) and time "12:55:13"; and (c) still farther down the page, particulars of two packages as to weight ("0.59 Kg" and "0.592 Kg"), price (i.e. "Regular Parcel" with "$5.95", and "Sm Pkt Surf US" with "$6.80", plus "GST" of "$0.42" apparently on the "Regular Parcel" portion of the "SUBTL" of "$12.75") and means of payment (i.e. "Cheque" and "$13.17"); and (iv) in hand-writing "#1002"; and (v) at the foot of the page, "Receipt required for all returns."

Events That Occurred On Or After 29 January 2001 But Before 2 February 2001

2.5.1 By the afternoon of 29 January 2001 Administrative Panel had not received an e-mail from the Provider to indicate that by the end of 26 January 2001 the Provider had received a response, from the Complainant, to the fax that the Respondent had sent to the Provider on 24 January 2001.

2.5.2 In view of paragraphs 2.4.1 through 2.4.3 and 2.5.1 hereof, on the afternoon of 29 January 2001 the Administrative Panel e-mailed the Provider as follows: "Please inform me, by reply e-mail, of whether eResolution has any indications, and if so then what indications, as to each of the following: (i) whether, in addition to the Respondent's delivering the 24 January 2001 fax to eResolution, any information in or about that fax (e.g. an original, or copy, of the affidavit in that fax) was also delivered to the Complainant (and if so then what information, when, by what med ium, and by whom); and (ii) whether eResolution received any response from the Complainant as to the information referred to in item 'i' of this paragraph (and if so then what response, when, by what medium, and by whom)."

2.5.3 On 30 January 2001 the Provider e-mailed the Administrative Panel as follows:

"(i)There is no evidence for the Clerk's Office that the Respondent delivered copy of the communication of January 24, 2001 to the Complainant. However on January 24, 2001, and after receiving named communication from the Respondent, the Clerk's Office se nt an email message to both parties reconfirming receipt of Respondent's fax and also informing that said material will be posted on the case's secure site as an annex to the Response, as indeed was. At your request I could forward you copy of this messag e.

"(ii)The Clerk's Office has not received any communication from the Complainant referring to item 'i'."

2.5.4 Later on 30 January 2001, in view of the e-mail quoted in paragraph 2.5.3 hereof, the Administrative Panel e-mailed the Provider as follows:

"Firstly, please forward me a copy of the message referred to in that e-mail (i.e. the message which you stated that on January 24, 2001, after receiving the named communication from the Respondent, the Clerk's Office sent to both parties reconfirming receipt of Respondent's fax and also informing that said material will be posted on the case's secure site as an annex to the Response). Please ensure the message includes the time the message was received by each party's e-mail system, or at least the time it was sent.

"Secondly, the eResolution web site indicates that the annex referred to above was added to that web site on 25 January 2001. Please inform me of the time that it was posted."

2.5.5 Still later on 30 January 2001, in response to the e-mail quoted in paragraph 2.5.4 hereof, the Provider e-mailed the Administrative Panel that by an e-mail of "January 25, 2001 9:52 AM" the Provider had stated to the Parties, "This is to confirm receipt of Respondent's information, sent to the Clerk's Office via fax yesterday, January 24, 2001. Said information will be post it on the case secure site within this day."

2.5.6 Even still later on 30 January 2001, in response to the e-mail quoted in paragraph 2.5.5 hereof, the Administrative Panel e-mailed the Provider, asking the Provider to inform the Administrative Panel "of the time that the 25 January 2001 posting onto the web site occurred."

2.5.7 On 30 January 2001, in response to the e-mail quoted from in paragraph 2.5.6 hereof, the Provider e-mailed the Administrative Panel that the Provider's "system does not provide for a tool to determine this information, apart from the date in which the action was done" but that the Provider's "closest guess, based on the hour in which [the Provider] sent the confirmation to the parties (9:52 am) is that [the Provider] did post this annex during the morning hours of January 25, 2001".

Events That Occurred On Or After 2 February 2001 But Before 12 February 2001

2.6.1 On 2 February 2001 the Provider e-mailed the Administrative Panel that "The Complainant sent a message to the Clerk's Office regarding the receipt of the Respondent's information of January 24, 2001 and the possibility to submit further information to your attention. Please advise at your earliest convenience if you wish to receive this email communication."

2.6.2 On 2 February 2001, in response to the e-mail quoted in paragraph 2.6.1 hereof, the Administrative Panel e-mailed the Provider, asking the Provider to e-mail the Administrative Panel the "email communication" referred to in the last sentence of paragraph 2.6.1 hereof.

2.6.3 On 5 February 2001, the Provider initially sent the Administrative Panel three e-mails.

2.6.4 The first of those three paragraph-2.6.3 e-mails apparently was "Sent" by the Complainant on "Friday, February 02, 2001" at "12:18 PM" to the Provider, and copied to the Respondent, and the body of it apparently was as follows:

"In your email of January 22, 2001, you advised us that Panelist Kyle required the Respondent to submit evidence of the alleged December 27 mailing by "the end of the calendar day 24 January 2001" to the Clerk's office and the Complainant. We report that we have not received any correspondence from the Respondent. Please advise whether you have received evidence of the alleged mailing. As you know, the Panelist granted us permission to respond to such evidence by the end of the calendar day 26 January 2001. If you have received this evidence, please consider this email a formal request to submit additional information to the Panelist. Specifically, we intend to protest the Respondent's failure to provide us with evidence of the alleged December 27 mailing."

2.6.5 The second of those three paragraph-2.6.3 e-mails apparently was "Sent" by the Respondent on "Friday, February 02, 2001" at "1:18 PM" to the Provider, and copied to the Complainant, and the body of it apparently was as follows:

"It appears our small office is having a great deal of difficulty parsing the Rules and even correspondence.

"Apparently, when this was executed, it was read up to the point:

'Read the Panel's instructions carefully and send the required information to the Clerk's Office on the appointed dates.'

"I see indeed the information, consisting of an affidavit and a receipt, was to be sent to the Complainant. That will be done electronically today. In the meantime, we sincerely regret these lapses, all of which started with our interpretation of the Rules. Our interpretation is consistent with other forums.

"We would also like to point out the Complainant is taking the opportunity in correspondence over this matter to expand his case arguments and argue against our own case. In other words, he is rebutting our arguments while we have no opportunity to do the same. Both this, and the problems with timing, appear to go against the flow of natural justice which we are confident the Panel and eResolution wants to maintain."

2.6.6 The third of those three paragraph-2.6.3 e-mails apparently was "Sent" by the Respondent on "Friday, February 02, 2001" at "4:17 PM" to the Provider (but not appearing to be copied to the Complainant by the Respondent) and the body of it apparently was, in commenting on an e-mail appended thereto, as follows:

"[The Complainant's representative's] use of gross hyperbole, calculated exaggeration and preposterous claims of damage over a domain name registered in 1996, as we stated in earlier correspondence today, run counter to any inclination towards seeing natu ral justice concluded.

"Our experience with the WIPO forum and the submission of hard copy material is we were not in error in submitting the original Response. The one transgression, despite [the Complainant's representative's] ridiculous claims of 'numerous opportunities' and 'repeated failure' since then derived from that error and are not accurate. The ICANN rules, WIPO rules, and eResolution supplements have different statements in different places.

"[The Complainant's representative] claims he needs more time to build a reply to the receipt evidence. We suspect he really wants to attack our entire case, since he already has found time to question the validity of a duly Notarized Affidavit and an official receipt. We really don't know what else we can do that will satisfy him, other than perhaps to attempt to subpoena the original packaging from eResolution! Or deliver our first-born child to him.

"We sincerely regret the dogfight [the Complainant's representative] is attempting to start here but we feel obligated to stand up for our side."

The e-mail appended thereto apparently was sent to the Provider by the Complainant's representative, and copied to the Respondent, on the "Date" of "Fri, 02 Feb 2001" at "15:42:48 -0500" and the body of it apparently was as follows:

"We have received electronic communication from the Respondent. It indicates you were also sent a copy of the email sent to us today. Please forward this email to Panelist Kyle.

"The Respondent admits that it failed to submit copies of its evidence to us, providing no reason upon which this failure can be excused. The Complainant submits that the Respondent's evidence should be rejected for failure to follow the instructions of the Panelist. To accept the evidence would be highly prejudicial to the Complainant since the time provided by the Panelist for filing a reply to the evidence has now expired and this case is to be decided in three days.

"Furthermore, the Complainant submits that the Panelist should resolve this case on the basis of the Complaint alone. The Clerk and the Panelist in this case have afforded the Respondent numerous opportunities to present evidence in this case, opportunities provided for in the ICANN rules and opportunities not provided for in the ICANN rules. Yet, the Respondent has repeatedly failed to follow these clear rules and instructions in presenting its case. The delays corresponding to the Respondent's failure to read and follow the ICANN rules, the Clerk's instructions and the Panelist's instructions have been damaging to the Complainant.

"Should the Panelist agree to consider the evidence provided by the Respondent, the Complainant requests leave to submit a reply to the evidence. Specifically, the Complainant protests the propriety of accepting the evidence for consideration and the legitimacy of the evidence.

"Please advise us on Panelist Kyle's decisions as to acceptance of the evidence or as to leave to file additional documentation regarding the acceptance and legitimacy of the Respondent's evidence. Thank you [Provider]."

2.6.7 On 5 February 2001, after receiving the three e-mails quoted from in paragraphs 2.6.4 through 2.6.6 hereof, the Administrative Panel e-mailed the Provider as follows:

"Thank you for your three e-mails to me this morning.

"As a result, on my behalf, please do two things. Firstly, today please (i) e-mail to the Complainant, and to the Respondent, the following three paragraphs of this e-mail; and (ii) e-mail me a copy of what you send them. Secondly, if and when eResolution receives from the Complainant the communication referred to in the third of those three paragraphs, please e-mail me (i) a copy of the respective communication; and (ii) a statement from eResolution of the calendar date upon which the respective communication was received by eResolution's e-mail system (as contrasted with e.g. the date upon which someone at eResolution may have personally opened the e-mail or attachment).

"The Administrative Panel in this proceeding has asked eResolution that today the Clerk's Office of eResolution do two things, which the Clerk's Office of eResolution does by this e-mail.

"One thing is to notify the Parties that although a deadline of 5 February 2001 had been fixed for the Administrative Panel to communicate its decision on the complaint to the Clerk's Office of eResolution, in view of exceptional circumstances and since the Administrative Panel considers an extension of that deadline to 16 February 2001 to be necessary for the Administrative Panel to be able to fulfill its duties adequately, the Administrative Panel hereby extends that deadline to the end of calendar day 16 February 2001.

"The other thing is to notify the Parties that the Complainant shall have until the end of calendar day 7 February 2001 to deliver, to the Clerk's Office of eResolution and to the Complainant, by e-mail a response to the 24 January 2001 submission by the Respondent."

2.6.8 Approximately seventy minutes after the Administrative Panel sent the e- mail quoted in paragraph 2.6.7 hereof, the Administrative Panel received from the Provider an e-mail indicating the Provider had complied with both parts of the first request (i.e. parts "i" and "ii") stated in the first paragraph quoted in paragraph 2.6. 7 hereof and that in so communicating with the Parties the Provider had further stated the following to them by e-mail: "Read and follow the instructions carefully."

2.6.9 Approximately twenty minutes after receiving the paragraph-2.6.8 e-mail (i.e. approximately ninety minutes after the Administrative Panel sent the paragraph-2.6.7 e-mail), the Administrative Panel e-mailed the Provider, to correct a clerical error in the paragraph-2.6.7 e-mail:

"Please immediately e-mail to the Parties the following paragraph of this e-mail.

"The Administrative Panel has noticed that in the Administrative Panel's e-mail to the Provider, of approximately noon today, the Administrative Panel had made a clerical error, which should be corrected as follows: in the second-last line of the last paragraph of the text provided by the Administrative Panel, replace the word 'Complainant' by the word 'Respondent', such that the paragraph will now read 'The other thing is to notify the Parties that the Complainant shall have until the end of calendar day 7 February 2001 to deliver, to the Clerk's Office of eResolution and to the Respondent, by e-mail a response to the 24 January 2001 submission by the Respondent.'"

2.6.10 Within ten minutes of the Administrative Panel's sending the paragraph 2.6.9 e-mail, the Administrative Panel received from the Provider an e-mail indicating the Provider had complied with the request stated in the first paragraph quoted in paragr aph 2.6.9 hereof and that in so communicating with the Parties the Provider had further stated the following to them by e-mail: "Please read and follow the instructions carefully."

2.6.11 On 8 February 2001 the Provider e-mailed the Administrative Panel that (i) the Respondent, by e-mail to the Provider and copied to the Respondent, had on "Wednesday, February 07, 2001" at "4:30 PM" provided an un-"Dated" MicroSoft Word attachment (as one of three attachments apparently identical to one another except in that the other two were each in a respective different word processing format); and (ii) by the Provider, "This information had also been posted on the case secure site." (The list of documents annexed to the Complaint's form was amended by the Provider to in dicate that on 8 February 2001 the Provider annexed the information; in accordance with notation stated in paragraph 3.0.1 hereof, that annex will be referred to herein as Annex C12.) That attachment was as follows:

"This is in response to the submission of evidence by the Respondent to the clerk on January 24, 2001, and to the Complainant on February 2, 2001. The deadline for this response is February 7, 2001.

"Background

"On November 30, 2000, this proceeding was commenced by the filing of a complaint by the Complainant. The Respondent failed to submit a proper response by December 30, 2000, but alleged timely mailing. On January 22, 2001, the Panelist granted leave to the Respondent to submit evidence relating to the alleged mailing date of the response. The Panelist instructed the Respondent to submit its evidence by January 24, 2001, to the Clerk and the Complainant. The Respondent submitted its evidence to the Clerk but failed to submit its evidence to the Complainant until February 2, 2001. Due to Respondent's untimely submission to the Complainant, the Panelist permitted the Complainant to respond to the evidence submitted by the Respondent by February 7, 2001.

"I. The submitted evidence should be not be considered in this case because the Respondent failed to submit its evidence in a manner conforming to the Panelist's instructions. The Respondent admittedly failed to read and follow the Panelist's instructi ons and such a failure is not an 'exceptional circumstance' justifying suspension of the rules by the Panelist.

"The Complainant asserts that it is improper to accept the evidence submitted by the Respondent relating to the mailing date of the response. The Panelist is granted discretion under the ICANN rules to extend fixed periods of time, time periods provide d for by the Rules or by the Panel, only in exceptional cases. ICANN Rule 10(c). The ICANN rules and policy do not define what constitutes an 'exceptional' case. However, in the present matter, the basis upon which the Panelist considers whether to extend the January 24 deadline to February 2 is the admitted failure of the Respondent to read the instructions provided by the Panelist. The Complainant respectfully reminds the Panelist that the submission of evidence is an issue in this case because the Resp ondent failed to read and follow the ICANN rules and eResolution supplemental rules regarding the submission of the response. The Respondent, in effect, proposes that failure to read and follow instructions supports an 'exceptional' case justifying suspe nsion of ICANN rules and eResolution rules. It is submitted that such a construction of Rule 10(c) would render fixed time periods in the remainder of the rules as merely suggestive rather than obligatory. Furthermore, such a construction of the rules is not consistent with the first sentence of ICANN rule 10(c) which states that the proceeding take place with due expedition. The term 'exceptional case' should not be given such a liberal reading if the ICANN rules and eResolution rules are to remain re liable and enforceable. Consequences must flow from the failure of a party to follow the rules developed by ICANN. In this case, the Respondent has provided no explanation that could reasonably constitute an exceptional circumstance justifying its latest failure to follow the Panelist's instructions. "The Complainant further submits, since the evidence of mailing should not be considered by the Panelist, the response should also not be considered in this case based on the Respondent's failure to file within the time period provided for in the rules.

"II. The submitted evidence should be not be considered in this case because the evidence is not reliable. The mailing receipt submitted by the Respondent is not authenticated. The purported affidavit submitted with the receipt is not signed or notariz ed.

"The Complainant also challenges the reliability of the evidence submitted by the Respondent. Specifically, the electronic copy of the affidavit of Betty Claydon is not signed or notarized. In addition, the copy of the postal receipt itself provides n o description of the package sent or a location to which the package was sent. It is submitted that these pieces of evidence are not reliable. If the Panelist chooses to consider extrinsic evidence relating to the act of mailing by the Respondent, some standards must be applied as to the trustworthiness of the evidence.

"Conclusion

"Proper application of the ICANN rules and eResolution supplemental rules requires that the Panelist decline to accept the submission of evidence by the Respondent as untimely. Extensions of time provided by the Panelist are proper only in exceptional c ases. An exceptional case does not lie where one party fails to read the rules and instructions governing the administrative proceeding. Furthermore, Respondent's response should not be accepted and this matter should be decided on the basis of the compla int alone." Events That Occurred On Or After 12 February 2001

2.7.1 On 12 February 2001 the Provider e-mailed the Administrative Panel that "The Respondent wishes to submit additional information regarding a decision criteria on a recently decided case. Please let me know if you wish to receive this information."

2.7.2 On 16 February 2001by an e-mail to Provider the Administrative Panel made a request to the Provider that

"On my behalf, please do two things today: (i) e-mail to the Complainant, and to the Respondent, the following paragraph of this e-mail and (ii) e-mail me a copy of what you send them.

"The Administrative Panel in this proceeding has asked eResolution that today the Clerk's Office of eResolution notify the Parties of three things. Firstly, although a deadline of 16 February 2001 had been fixed for the Administrative Panel to communicate its decision on the complaint to the Clerk's Office of eResolution, in view of exceptional circumstances and since the Administrative Panel considers an extension of that deadline to 19 February 2001 necessary for the Administrative Panel to be able to fulfill its duties adequately, the Administrative Panel hereby extends that deadline to the end of calendar day 19 February 2001. Secondly, that 19 February 2001 deadline shall not be extended. Thirdly, the Administrative Panel shall not receive from either Party any further information."

2.7.3 On 16 February 2001 the Provider e-mailed the Administrative Panel a copy of an e-mail, which copy indicated the Provider had complied with both parts (i.e. "i" and "ii") of the request quoted in paragraph 2.7.2 hereof.

3. Factual Background

Overview

3.0 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 et seq under that heading) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or through one or more of admission, notice, perception and inference) any of the information set out in paragraphs 3.0.1 et seq under this heading of "Factual Background".

3.0.1 In this proceeding, the factual background includes that the automated docket management system on the Provider's website includes, respectively through a series of links for the Complaint's form and a series of links for annexed documents, what appear to be (i) under the heading of "Complaint Form", the Complaint's form (be aring the time and date of 15:05:24 on 12 October 2000, i.e. "3:05:24 PM (GMT-5)" which apparently is Greenwich Mean Time minus five hours, on "12/10/2000"); and (ii) under the heading of "Complete List of Annexed Documents", a list of twelve documents an nexed to the Complaint's form as eleven annexes numbered 1 through 11 and a table describing those annexes. (Herein, the notation for each of those eleven annexes includes the addition of the preface "C".) The list, and the Complaint's form, indicate th at the documents were made part of the Complaint by being annexed to the Complaint's form by the Provider on 2 November 2000. The annexes appear to be the following: (i) Annex C1: a five-page copy of the filing letter (one page), and application (four p ages), in U.S. Service Mark Application Serial Number 75/775,652; (ii) Annex C2: a four-page copy of a first Office Action (three pages), and Filing Receipt (one page), in U.S. Trademark Application Serial Number 75/775,652; (iii) Annex C3: a seven-page c opy of the filing letter (one page), and application (six pages), in U.S. Trademark Application 76/025,593; (iv) Annex C4: a three-page copy of the first Office Action in U.S. Trademark Application Serial Number 76/025,593; (v) Annex C5: a five-page copy of the covering letter (one page), Response to the first Office Action (three pages), and Acknowledgement of Receipt of the covering letter and Response (one page), in U.S. Service Mark Application Serial Number 75/775,652; (vi) Annex C6: a one-page copy of a printout detailing Whois results for "timallen.com"; (vii) Annex C7: a one-page copy of a printout detailing Whois results for "celebrity1000.com"; (viii) Annex C8: a one-page copy of a printout from the celebrity1000.com website; (ix) Annex C9: a one-page copy of a printout detailing Whois results for "harrisonford.com"; (x) Annex C10: a one-page copy of a printout detailing Whois results for "melgibson.com"; and (xi) Annex C11: a one-page copy of a printout detailing Whois results for "johntravol ta.com".

3.0.2 In this proceeding, the factual background also includes that the automated docket management system on the Provider's website includes, through either or both of a series of links for the Response's form and a series of links for annexed documents, what appear to be (i) under the heading of "Response Form", the Respons e's form (bearing the time and date of 18:23:29 on 20 December 2000 i.e."6:23:29 PM (GMT-5)", which apparently is Greenwich Mean Time less five hours, on "20/12/2000"); and (ii) under the heading of "Complete List of Annexed Documents", a list of thirty-f our documents annexed to the Response's form as thirty-three annexes (numbered 1 through 33) and one addendum. (Herein, (i) the notation for each of those thirty-four annexes includes the preface "R" and is correspondingly in the range from R1 to R34; an d (ii) except as otherwise noted herein, pagination references to any of R1 through R34 are assigned by the Administrative Panel since none of R1 through R34 expressly bears annex page numbers.) The list, and the Response's form, indicate that the documen ts were made part of the Response as follows: (i) R1 through R33 were annexed to the Response's form by the Respondent on 20 December 2000; and (ii) R34 was annexed by the Provider on 27 December 2000. The annexes appear to be the following: (i) Annex R1: the Respondent's Brief, of seventeen pages; (ii) Annex R2: a thirty-one page document entitled "Rough Justice - An Analysis of ICANN's Uniform Dispute Resolution Policy"; (iii) Annex R3: a twenty-seven page document entitled "Management of Internet Names and Addresses"; (iv) Annex R4: a seven-page copy of "The Unauthorized Tim Allen Web Site"; (v) Annex R5: a copy of the front cover of a Harper's Bazaar periodical; (vi) Annex R6: a copy of the front cover of a Cosmo Girl periodical; (vii) Annex R7: a cop y of the front cover of a Cosmopolitan periodical; (viii) Annex R8: a copy of the front cover of an Elle periodical; (ix) Annex R9: a copy of the front cover of an Entertainment Weekly periodical; (x) Annex R10: a copy of the front cover of an FHM period ical; (xi) Annex R11: a copy of the front cover of a Hockey News periodical; (xii) Annex R12: a copy of the front cover of an In Style periodical; (xiii) Annex R13: a copy of the front cover of a Jane periodical; (xiv) Annex R14: a copy of the front cover of a Marie Claire periodical; (xv) ) Annex R15: a copy of the front cover of a McCalls periodical; (xvi) Annex R16: a copy of the front cover of a National Sports Review periodical; (xvii) Annex R17: a copy of the front cover of a Red Book periodical; ( xviii) Annex R18: a copy of the front cover of a Talk periodical; (xix) Annex R19: a copy of the front cover of a Stuff periodical; (xx) Annex R20: a copy of the front cover of a Vogue periodical; (xxi) Annex R21: a copy of the front cover of a book abou t Danielle Steel; (xii) Annex R22: a copy of the front cover of a book about Lady Diana; (xxiii) Annex R23: a copy of the front cover of a book about Howard Stern; (xxiv) Annex R24: a copy of the front cover of a first book about Jacqueline Kennedy Onassi s; (xxv) Annex R25: a copy of the front cover of a second book about Jacqueline Kennedy Onassis; (xxvi) Annex R26: a copy of the front cover of a book about Jerry Springer; (xxvii) Annex R27: a copy of the front cover of a book about Ralph Klein; (xxviii) Annex R28: a copy of a first page from an edition of Canadian Books in Print; (xxix) Annex R29: a copy of a second page from an edition of Canadian Books in Print; (xxx) Annex R30: a copy of a third page from an edition of Canadian Books in Print; (xx xi) Annex R31: a copy of a fourth page from an edition of Canadian Books in Print; (xxxii) Annex R32: a copy of a first page of a two-page periodical article entitled "mine eyes deceive me"; (xxxiii) Annex R33: a copy of a second page of that two-page pe riodical article entitled "mine eyes deceive me" and (xxxiv) Annex R34: the Respondent's seventeen-page Addendum to Annex R1.

3.0.3 In this proceeding the factual background further includes that the Complaint's form includes: (i) in section 1(a) that the "Number of Panelists" is "1-member panel"; (ii) in section 2(c) as the "Complainant's Communication Preferences", that "Complainant's preferred means of communications to complainant in the administr ative proceeding: Email + eResolution secure site"; and (iii) in section 7 that "Complainant requests that the present Complaint be submitted for decision in accordance with the ICANN's Rules and Policy and eResolution's Supplemental Rules."

3.0.4 In this proceeding the factual background still further includes that the Response's form includes: (i) in section 1(a) that the "Number of Panelists" is "1-member panel"; and (ii) in section 2(c) as the "Respondent's Communication Preferences", the text "Email + eResolution secure site".

The Complaint's Annexes

3.1.1 In Annex C1 the filing letter (annex page 1 of 5) is expressly dated in typewriting as "August 13, 1999" and the application itself (annex pages 2 through 5) is expressly "Dated" in handwriting as "3/30/99" (annex page 4 of 5), apparently being 30 March 1999. The filing letter includes information consistent with, and found i n, the application itself. The application itself expressly includes that it was six things. Firstly, for the mark "Tim Allen" (annex pages 2 of 5, and 5 of 5). Secondly, in International Class Number "042" (annex pages 2 of 5, and 5 of 5). Thirdly, by " Timothy Allen Dick" (annex pages 2 of 5, and 5 of 5) of a particular municipal business address in "Beverly Hills, Michigan" (annex pages 2 of 5, and 5 of 5). Fourthly, on the bases (i) of "a bona fide intent under Section 1(b) of the [United States Trad emark] Act to use the mark shown in the accompanying drawing in commerce for the following services: INDUSTRIAL DESIGN COMPRISING INTERIOR WORK SPACE DESIGN; PRODUCT DESIGN AND COMMERCIAL ART DESIGN AND GRAPHIC ART DESIGN FOR OTHERS" (annex pages 2 of 5, and, as to only the list of services, 5 of 5); and (ii) that "Applicant intends that the manner or mode of use of the mark on or in connection with the services will be by displaying the same on material and brochures and on the design work performed by t he applicant" (annex page 2 of 5). Fifthly, (i) made after the applicant was thereby "warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful statements may jeo pardize the validity of the application or any resulting registration"; and (ii) a declaration that "he is authorized to execute this application, he believes he has a bona fide intent to use the mark sought to be registered on the services, he believes h e is entitled to use such mark in commerce; he believes himself to be the owner of the mark sought to be registered; to the best of his knowledge and belief no other person, firm, corporation or association has the right to use the above-identified mark i n commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the services of such other person, to cause confusion, or to cause mistake, or to deceive; and all statements made of his own knowledge are true and all statements made on information and belief are believed to be true" (annex pages 3 of 5, and 4 of 5). Sixthly, signed by "Timothy Alan Dick" (annex page 4 of 5). Despite what is stated in the filing letter and application , the annex did not include a drawing which showed the mark and was to have accompanied the rest of the application, except in the sense of the above-described type-written version of the mark.

3.1.2 In Annex C2 the Office Action (annex pages 1 through 3, of 4) expressly has the "ACTION NO." of "01" (annex page 1 of 4) and the "MAILING DATE" of "12/06/99" (annex page 1 of 4), apparently being 6 December 1999, and expressly includes three other main attributes. The first main attribute is that, contrary to Annex C1, the ma rk appears to be "TIM ALLEN" in "(STYLIZED)" form (annex page 1 of 4) rather than "Tim Allen". The second main attribute is that "[t]he assigned examining attorney has reviewed the referenced application and determined" (annex page 1 of 4) five things. Fi rstly, after having "searched the Office records" the assigned examining attorney "found no similar registered or pending mark which would bar registration under [United States] Trademark Act Section 2(d), 15 U.S.C. Section 1052(d). TMEP section 1105.01" (annex page 1 of 4). Secondly, the following three informalities, however, must be addressed. The first informality is that "[t]he applicant may adopt the following if accurate: TIM ALLEN is the professional stage name of a living individual whose consent is of record" (annex page 2 of 4) since "If the name shown in the mark identifies a particular living individual , the applicant must submit a written consent from that individual, authorizing the applicant to register the name. Consent is required for r egistration of a pseudonym, stage name or nickname if such name identifies a specific living individual. If the name does not identify a living individual, the applicant should state so for the record. Trademark Act Section 2(c), 15 U.S.C. Section 1052(c) ; TMEP sections 813 and 1206" (annex page 1 of 4). The second informality is that "[t]he applicant must submit a new drawing" (annex page 2 of 4) since "[t]he drawing is not acceptable because the mark is not typed entirely in capital letters 37 C.F.R. Se ction 2.52(a)(1); TMEP section 807.08" (annex page 2 of 4). The third informality is that "[t]he applicant may adopt the following, if accurate: Class 42: Industrial design services, namely, interior work space design for others; Design, testing and devel opment of new products for others; Commercial art and graphic art design for others" (annex page 3 of 4) since "[t]he wording 'Product Design' in the identification of services is unacceptable as indefinite in that it fails to indicate whether or not the services include development and testing of the new products to be designed" (annex page 3 of 4). The third main attribute of Annex C2 is that by it "A PROPER RESPONSE TO THIS OFFICE ACTION MUST BE RECEIVED WITHIN 6 MONTHS FROM THE DATE OF THIS ACTION IN ORDER TO AVOID ABANDONMENT" (annex page 1 of 4); in view of the first sentence of this paragraph, the due date for that response was 6 June 2000. A further aspect of Annex C2 is that it includes, as page 4 of 4, what appears to be a "FILING RECEIPT FOR TR ADEMARK APPLICATION" which includes information consistent with, or found in, either or both of Annex C1 and the rest of Annex C2.

3.1.3 In Annex C3 the filing letter (annex page 1 of 7) is expressly dated in typewriting as "April 13, 2000" and the application itself (annex pages 2 through 7) is expressly "Dated" in handwriting as "3/30/99" (annex page 6 of 7), apparently being 30 March 1999. Except for the filing letter statement that the mark is in "(Stylize d)" form, the filing letter includes information consistent with, and found in, the application itself. The application itself expressly includes that it was six things. Firstly, for the mark "Tim Allen" (annex pages 2 of 7, and 7 of 7). Secondly, in Inte rnational Class Numbers "7, 8, 18, 25, 41" (annex pages 2 of 7, and 7 of 7). Thirdly, by "Timothy Allen Dick" (annex pages 2 of 7, and 7 of 7) of a particular municipal business address in "Beverly Hills, Michigan" (annex pages 2 of 7, and 7 of 7). Fourth ly, on three bases (corresponding herein to "i", "ii" and "iii") in respect of each of the five international classes (corresponding herein to "a", "b", "c", "d" and "e"), that (a(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: IN CLASS 007: HAND-HELD ELECTRIC TOOLS; BITS FOR HAND-HELD ELECTIRIC TOOLS; TOOL KITS COMPRISING HAND-HELD ELECTRIC TOOLS AND BITS THEREFOR; BAGS FOR HAND-HELD ELECTRIC TOOLS AND TOOL KITS; SOLD WITH THE TOOLS AND TOOL KITS" (annex pages 2 of 7, and, as to the first item of the list of goods and services, 7 of 7), (a(ii)) "The mark is used with the goods in Class 007 by imprinting the same on the goods and on labels attached to the goods an d on packaging within which the goods are sold, and three (3) specimens showing the mark as actually used are presented herewith" (annex page 2 of 7) and (a(iii)) "The mark was first used on the goods in Class 007 in August 1996; was first used in interst ate commerce in August 1996; and is now in use in such commerce" (annex pages 2 of 7, and, as to the first-use dates, 7 of 7); (b(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: … IN CLASS 008: HAND TOOLS; TOOL KITS COMPRISING HAND TOOLS; BAGS FOR HAND TOOLS AND TOOL KITS, SOLD WITH THE TOOLS AND TOOL KITS; TOOL APRONS, NAMELY WAIST APRONS AND BIB APRONS; TOOL HOLDERS" (annex pages 2 of 7, and, as to the first item of the list of goods and services, 7 of 7), (b(ii)) "The mark is used with the goods in Class 008 by imprinting the same on the goods and on labels attached to the goods and on packaging within which the goods are sold, and three (3) specimens showing th e mark as actually used are presented herewith" (annex page 3 of 7) and (b(iii)) "The mark was first used on the goods in Class 008 in September 1995; was first used in interstate commerce in September 1995; and is now in use in such commerce" (annex page s 3 of 7, and, as to the first-use dates, 7 of 7); (c(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: … IN CLASS 018: TOOLS AND UTILITY BAGS, SOLD EMPTY" (annex pa ges 3 of 7, and, as to the first item of the list of goods and services, 7 of 7), (c(ii)) "The mark is used with the goods in Class 018 by imprinting the same on the goods and on labels attached to the goods and on packaging within which the goods are sol d, and three (3) specimens showing the mark as actually used are presented herewith" (annex page 3 of 7) and (c(iii)) "The mark was first used on the goods in Class 018 in September 1996; was first used in interstate commerce in September 1996; and is now in use in such commerce" (annex pages 3 of 7, and, as to the first-use dates, 7 of 7); (d(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: … IN CLASS 025: CLOTHING , NAMELY BASEBALL CAPS" (annex page 3 of 7), (d(ii)) "The mark is used with the goods in Class 025 by imprinting the same on the goods and on labels attached to the goods and on packaging within which the goods are sold, and three (3) specimens showing th e mark as actually used are presented herewith" (annex page 4 of 7) and (d(iii)) "The mark was first used on the goods in Class 025 in August 1996; was first used in interstate commerce in August 1996; and is now in use in such commerce" (annex pages 4 of 7, and, as to the first-use dates, 7 of 7); and (e(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: … IN CLASS 041: ENTERTAINMENT SERVICES COMPRISING: PERSONAL APP EARANCES BY A CELEBRITY; APPEARANCES IN A CONTINUING COMEDY SHOW OVER TELEVISION, SATELLITE, AUDIO AND VIDEO MEDIA, APPEARANCES IN LIVE SHOW CONCERTS AND AUTOMOBILE RACES INCLUDING DRIVING RACE CARS AND SPONSORING RACE CARS" (annex pages 4 of 7, and, as t o the first item of the list of goods and services, 7 of 7), (e(ii)) "The mark is used with the services in Class 41 by imprinting the same on brochures advertising the services, on television, movies and races in which the applicant appears, and three (3 ) specimens showing the mark as actually used are presented herewith" (annex page 4 of 7) and (e(iii)) "The mark was first used on the goods in Class 41 in 1983; was first used in interstate commerce in 1983; and is now in use in such commerce" (annex pag es 4 of 7, and, as to the first-use dates, 7 of 7). Fifthly, a declaration by the applicant that "he is authorized to execute this application; he is the owner of the mark sought to be registered; he believes to the best of his knowledge that no other per son, firm, corporation or association has the right to use said mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when applied to the goods of another person, to cause confusion, or to cause mistak e, or to deceive; all statements made herein of his own knowledge are true and all statements made on information and belief are believed to be true; and these statements were made with the knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under section 1001 of Title 18 of the United States Code and such willful false statements may jeopardize the validity of the application or document or any registration resulting therefrom" (annex pages 5 of 7 , and 6 of 7). Sixthly, signed by "Timothy Alan Dick" (annex page 6 of 7). Despite what is stated in the filing letter and application, the annex included neither a drawing which showed the mark and was to have accompanied the rest of the application (exc ept in the sense of the above-described type-written version of the mark) nor specimens showing the mark as actually used and which were to have been presented therewith.

3.1.4 In Annex C4 the Office Action expressly has the "ACTION NO." of "01" (annex page 1 of 3) and the "MAILING DATE" of "10/12/00" (annex page 1 of 3), apparently being 12 October 2000. It expressly includes three other main attributes. The first main a ttribute is that, contrary to Annex C3, the mark appears to be "TIM ALLEN" rather than "Tim Allen", and contrary to the filing letter in Annex C3 the mark appears to not be in "(Stylized)" form (annex page 1 of 3). The second main attribute is that "[t]he assigned examining attorney has reviewed the referenced application and determined" (annex page 1 of 3) seven things. Firstly, after having "searched the Office records" the assigned examining attorney "found no similar registered or pending mark which w ould bar registration under [United States] Trademark Act Section 2(d), 15 U.S.C. Section 1052(d). TMEP section 1105.01" (annex page 1 of 3). Secondly, "The following [five] informalities, however, must be addressed" (annex page 1 of 3). The first inform ality is that "the applicant must submit a statement that the mark is still in use, verified by an affidavit or declaration under 37 C.F.R. Section 2.20. TMEP section 803.04" (an example of a properly worded declaration, and instructions for using it, app arently being provided by the assigned examining attorney on annex page 2 of 3) since "[t]he applicant did not file this application within a reasonable time after the application was signed. The signature date of the application is March 30, 1999 and the filing date of the application is April 13, 2000. The Office considers six months between execution and filing as reasonable for all applicants and all papers" (annex page 1 of 3). The second informality is that "[t]he applicant must make the following implied consent statement for the record: TIM ALLEN is the professional stage name of a living individual whose consent is of record" (annex page 2 of 3). The third informality is that "[t]he identification of goods as to International Classes 007, 008 an d 018 is unacceptable as indefinite"; that statement, and an example of identifications for the applicant to adopt, if accurate, were provided by the assigned examining attorney on annex pages 2 of 3, and 3 of 3. The fourth informality is that "[t]he reci tation of services as to International Class 41 is unacceptable as indefinite"; that statement and an example of a recitation for the applicant to adopt, if accurate, were provided by the assigned examining attorney on annex page 3 of 3. The fifth informa lity is that "[t]he applicant must submit a specimen and must submit the following statement: The specimen was in use in commerce a least as early as the filing date of the application. This statement must be verified with an affidavit or a declaration un der 37 C.F.R. Section 2.20 37 C.F.R. Section 2.71(d)(1)" since "[a]n application based on use of the mark in commerce under Trademark Act Section 1(a), 15 U.S.C. Section 1051(a), must include a specimen showing use of the mark in commerce on or in connect ion with each identified class of goods or services. The application does not contain a specimen for the services identified in International Class 41" (annex page 3 of 3). The third main attribute of Annex C4 is that by it "A PROPER RESPONSE TO THIS OFFI CE ACTION MUST BE RECEIVED WITHIN 6 MONTHS FROM THE DATE OF THIS ACTION IN ORDER TO AVOID ABANDONMENT" (annex page 1 of 3); in view of the first sentence of this paragraph, the due date for that response is 12 April 2001.

3.1.5 In Annex C5 the covering letter (annex page 1 of 5, and titled "CERTIFICATE OF MAILING AND TRANSMITTAL LETTER") expressly has the date of being "deposited with the United States Postal Service as First Class Mail" of "on May 16, 2000" and the Respo nse (annex pages 2 through 4, of 5) has the "Date" of "May 12, 2000" (annex page 3 of 5). The covering letter includes information consistent with, and found in, the Response. The Response expressly includes (at annex page 3 of 5) that the applicant adopt s the respective means, set out in paragraph 3.1.2 hereof, which the assigned examining attorney had suggested for correcting the three informalities set out in paragraph 3.1.2 hereof; through annex pages 2 of 5, and 4 of 5, those means appear to have bee n effected. Annex C5 also includes, as annex page 5 of 5, what appears to be an acknowledgment, by the United States Patent and Trademark Office, of receipt of the covering letter and Response i.e. that "THE U.S. PATENT OFFICE 'RECEIVED' [STAMP?] [ACKN? ]OWLEDGES RECEIPT OF: Paper: Cert. of Mailing and Response w[ith] new drawing" in an application indicated by the rest of Annex C5, and by the Office Action in Annex C2, as having the same "Applicant" name, "Serial No.", "Date Mailed" and "Due" date.

3.1.6 Annex C6 expressly includes that (i) the information therein "is provided by Network Solutions for information purposes, and to assist persons in obtaining information about or related to a domain name registration record. Network Solutions does no t guarantee its accuracy."; (ii) the "Administrative Contact, Billing Contact" information is "Burgar, Jeff" of the organization "Internet North" at a particular post box and municipal address (both in "High Prairie" , "AB", "CA" i.e. High Prairie, Albert a Canada), as a well as at a particular telephone number and fax number and e-mail address; (iii) the "Technical Contact, Zone Contact" information is the same as item "ii" of this paragraph except that rather than "Burgar, Jeff" the name is "Lumsden, Jus tin", the e-mail address is a particular different one (though still at "INETNORTH.NET"), there is no municipal address and the telephone number is a particular different one; (iv) the "Registrant" information is the same as item "ii" of this paragraph e xcept that rather than "Burgar, Jeff" the name is "Tim Allen Club", and that there is no reference to Internet North or to a telephone number or fax number or e-mail address; and (v) "Record last updated on 04-Apr-2000", "Record expires on 07-Nov-2000", "Record created on 6-Nov-1996" and "Database last updated on 13-Sep-2000 05:55:52 EDT".

3.1.7 Annex C7 expressly includes the same information (down to and including the particulars) set out in Paragraph 3.1.6 hereof except instead that (i) the "Registrant" name is "Celebrity Club"; (ii) the "Record expires on" date is "01-Nov-2000"; (iii) the "Record created on" date is "31-Oct-1997"; and (iv) the "Database last updated on" date and time are "28-Sep-2000 08:00:56 EDT".

3.1.8 Annex C8 has three main parts: (i) at the top, a banner; (ii) immediately below the banner, a date line; and (iii) immediately below the date line, three columns of texts and depictions. The banner has three parts: (i) a right side, wherein there is a depiction (apparently a photograph) of an automobile; (ii) a left side, the text of which is "PERFORMANCE"; and (iii) at approximately the mid-point of the banner, pointing downward, what seems to be a depiction of a pennant-like object which is swallow-tailed at the hoist-end (i.e. upper end) and tapered to a point at the fly-en d (i.e. lower end) and which includes near the hoist-end a cross consisting of two mutually perpendicular members the shorter of which is coincident with the longitudinal axis of the pennant-like object. The date line includes the text "Week of February 15, 1999". The three columns include, as its center column, "Feature Celebrities of the Week", followed below that by "Kate Winslet" followed by a photograph depicting Kate Winslet, then below that "Tim Allen" followed by a photograph of Tim Allen, and th en, below that, "Click on our Celebrity of the Week and see all previous Celebrity Sites of the Week Too!"

3.1.9 Annex C9 expressly includes the same information (down to and including the particulars) set out in Paragraph 3.1.6 hereof except instead that (i) the "Registrant" name is "Harrison Ford Club"; and (ii) the "Database last updated on" date and time are "28-Sep-2000 07:59:47 EDT".

3.1.10 Annex C10 expressly includes the same information (down to and including the particulars) set out in Paragraph 3.1.6 hereof except instead that (i) the "Registrant" name is "Mel Gibson Club"; (ii) the "Record last updated on" date is "28-Jun-2000"; and (iii) the "Database last updated on" date and time are "28-Sep-20 00 07:59:47 EDT".

3.1.11 Annex C11 expressly includes the same information (down to and including the particulars) set out in Paragraph 3.1.6 hereof except instead that (i) the "Registrant" name is "John Travolta Club"; (ii) the "Record last updated on" date is "30-Jun-2000"; and (iii) the "Database last updated on" date and time are "28-Sep -2000 08:00:58 EDT".

The Response's Annexes

3.2.1 Annex R1 appears to expressly include two types of information, often intricately woven or blended within or between one another: (i) factual background of, or which can be contended to be of, this proceeding; and (ii) contentions by the Respondent . Consequently, except for paragraph 3.2.34 hereof, the Administrative Panel considers it appropriate to defer further statements about Annex R1 to the "Parties' Contentions" portion of this decision (i.e. paragraphs 4.0 et seq under that heading), and so defers it.

3.2.2 Annex R2 appears to expressly include, often intricately woven or blended within or between one another, two types of information, either or both of which the Respondent appears to expressly or implicitly adopt in either or both of Annex R1 and Annex R34: (i) factual background which can be contended to be of this proce eding; and (ii) contentions by the author of Annex R2. Consequently, the Administrative Panel considers it appropriate to defer further statements about Annex R2 to the "Parties' Contentions" portion of this decision (i.e. paragraphs 4.0 et seq under that heading), and so defers it.

3.2.3 Annex R3 appears to expressly include, often intricately woven or blended within or between one another, two types of information, either or both of which the Respondent appears to expressly or implicitly adopt in either or both of Annex R1 and Annex R34: (i) factual background which can be contended to be of this proce eding; and (ii) contentions by the author of Annex R3. Consequently, the Administrative Panel considers it appropriate to defer further statements about Annex R3 to the "Parties' Contentions" portion of this decision (i.e. paragraphs 4.0 et seq under that heading), and so defers it.

3.2.4.1 Annex R4 expressly includes as its first page, which appears to be a copy of the "home" page of the web site, (i) at the top, the banner header "The UNAUTHORIZED TIM ALLEN Web Site", in which (a) "The", "Web" and "Site" are in one font-size and font-style (perhaps Geneva), (b) "TIM ALLEN" is in a larger font-size (apparent ly the largest font-size on the page and on the site) and in another font-style (perhaps a sort of italicized-and-streaked Geneva), on a line between "The" and "Web Site" and (c) "UNAUTHORIZED" appears diagonally between "The" and "TIM ALLEN" in a stencil -like font-style at approximately the same font-size as "TIM ALLEN"; (ii) immediately below what is described by item "i" of this paragraph, in the smallest font-size on the page and on the web site, "Information on this web site is for information purpos es only. Nothing on this site is to be construed as an endorsement by any celebrity or personality, unless explicitly identified, for this site or for any information here. This site is in no way affiliated with Tim Allen. This is a fan appreciation si te, the Tim Allen Club."; (iii) immediately below what is described by item "ii" of this paragraph, "Tim Allen[,] Actor" and a photograph depicting the Complainant; (iv) immediately below what is described by item "iii" of this paragraph, various brief b iographical-sort of texts; and (v) to the left of what is described by items "iii" and "iv" of this paragraph, links to the pages of the web site i.e. "home", "biography", "message board", "opinion poll" and "links".

3.2.4.2 Annex R4 expressly includes as its second page, which appears to be a copy of the "biography" page of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, the heading "biography"; (iii) immediately bel ow what is described by item "ii" of this paragraph, various biographical-sort of texts more extensive than those referred to in item "iv" of paragraph 3.2.4.1; and (iv) to the left of what is described by items "ii" and "iii" of this paragraph, the lin ks described in item "v" of paragraph 3.2.4.1 hereof.

3.2.4.3 Annex R4 expressly includes as its third page, which appears to be a copy of the remainder of the web site's "biography" page described in paragraph 3.2.4.2 hereof, various biographical-sort of texts more extensive than those referred to in item "iv" of paragraph 3.2.4.1 hereof.

3.2.4.4 Annex R4 expressly includes as its fourth page, which appears to be a copy of the first of two "message board" pages of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, the heading "message board"; (ii i) immediately below what is described by item "ii" of this paragraph, links top and bottom labeled "Post a Message" and between them "Welcome to the Unauthorized Tim Allen message board. Tell us what your favorite Tim Allen acting role is and why it is your favorite. Webmaster 12/19/00 9:29:50 AM - 204.50.219.1 - message #1" apparently indicating that the annex is a copy of the information that was on the web site, or at least was on that page of the web site, as of that time on or after 19 December 200 0; and (iv) to the left of what is described by items "ii" and "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.4.5 Annex R4 expressly includes as its fifth page, which appears to be a copy of the second of two "message board" pages of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, the heading "message board"; (i ii) immediately below what is described by item "ii" of this paragraph, "Before you post:" and below that, apparently in a boldface version of the same smallest font-size as the text described in item "ii" of paragraph 3.2.4.1 hereof, "Your IP address is recorded and you can be traced. Posts containing defamatory matter or profane comments may be edited or deleted at the discretion of the webmaster. Do not post advertising. Feel free to post messages to Mr. Allen, but we make absolutely no representation he ever visits this message board. Please keep in mind this web site is not affiliated, endorsed, or associated in any way with Tim Allen.", followed by messaging fields and a "Submit" button; and (iv) to the left of what is described by items "ii" and "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.4.6 Annex R4 expressly includes as its sixth page, which appears to be a copy of the "opinion poll" page of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, the heading "favorite movie poll"; (iii) immediately below what is described by item "ii" of this paragraph, "You may select a maximum of 5 entries and a minimum of 1", followed by polling fields regarding movies in which Tim Allen has apparently performed and a "Vote!" button; and (iv) to the left of what is described by items "ii" and "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.4.7 Annex R4 expressly includes as its seventh page, which appears to be a copy of the "links" page of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, in the above-mentioned smallest font-size on the page and on the web site, "Information on this web site is for information purposes only. Nothing on this site is to be construed as an endorsement by any celebrity or personality, unless explicitly identified, for this site or for any information here. We are in no way affiliated with the web sites linked to from this site, nor do we guarantee the accuracy of the information contained on those sites."; (iii) immediately below what is described by item "ii" of this paragraph, the heading "links" and, below that heading, links apparently to "Home Improvement Website", "ABC.com - Tim Allen", "Home Improvement Cyberfans: Tim Allen", "Mr. Showbiz: Tim Allen" and "DJ's Everything Page"; and (iv) to the left of what is described by item "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.5 Annex R5 expressly includes (i) near the bottom right corner, the issue date of "NOVEMBER", in very small font-size; (ii) below the periodical name, "UMA THURMAN", exceeded in annex font-size only by the periodical name and by (near the bottom) "WHITE HOT WINTER", Uma Thurman's name then being followed by "ONE COOL CUSTOMER" in the same (though unbolded) font-style as her name but at approximately half the font-size of her name; and (iii) occupying a substantial portion of the annex, a photograph depicting Uma Thurman.

3.2.6 Annex R6 expressly includes (i) near the bottom left corner, the issue date of "OCTOBER 2000", in very small font-size; (ii) near the top right corner, "leslie bibb", exceeded in annex font-size only by the periodical name and by "FREE MTV" immedia tely below the periodical's name, Leslie Bibb's name then being followed by "On Surviving a Heinous High School Rumor" in the same font-style as her name but at approximately one-half to one-third the font-size of her name; (iii) occupying a substantial p ortion of the annex, a photograph depicting Leslie Bibb; (iv) to the left of that photograph, in substantially smaller font-size than the text quoted in item "ii" of this paragraph, and accompanying substantially smaller and apparently corresponding photo graphs, "Enrique Iglesias", "Blink-182" and "Carson Daly".

3.2.7 Annex R7 expressly includes (i) near the top right corner, the issue date of "NOVEMBER 2000", in very small font size; (ii) below the issue date, "Alyssa Milano", in substantially larger font-size and followed by "How She Bounced Back from Love Tro uble" in a different font-style and smaller font-size than her name; and (iii) occupying a substantial portion of the annex, a photograph depicting Alyssa Milano.

3.2.8 Annex R8 expressly includes (i) near the bottom right corner, the issue date of "DECEMBER 2000", in very small font-size; (ii) below the periodical name, "SHARON STONE" as part of the text "SHARON STONE'S WAR WITH HOLLYWOOD", in which "WAR WITH HOL LYWOOD" is in the same font-style as her name but at approximately half the font-size of here name; and (iii) occupying a substantial portion of the annex, a photograph depicting Sharon Stone.

3.2.9 Annex R9 expressly includes (i) near the bottom right corner, the issue date of "FALL 2000" and apparently the issue number of "#565", both in very small font-size; (ii) to the left of the issue date, "BARRYMORE", as part of the text "HOW TO BREAK INTO SHOWBIZ (…EVEN IF YOUR NAME ISN'T BARRYMORE)"; (iii) occupying a substantial portion of the annex, a photograph depicting Drew Barrymore; and (iv) above all of that, in substantially smaller font-size than the text quoted in item "ii" of this paragra ph, substantially smaller photographs with the corresponding texts "Sandra Bullock", "Jim Carey", "Angelina Jolie" and "Chris Rock".

3.2.10 Annex R10 expressly includes (i) near the top left corner, the issue date of "January/February 2001", in very small font-size; (ii) below the issue date, "24-KARAT GOLD! ALYSSA MILANO MADE FROM THE STUFF THAT DRIVES MEN CRAZY", in which the font-s ize of what precedes Alyssa Milano's name is larger than the font-size of her name, and the font-size of what follows her name is smaller than the font-size of her name; (iii) occupying a substantial portion of the annex a photograph depicting Alyssa Mila no; and (iv) farther down and to the right, in the a font-size on the order of the issue date font-size, "Matt LeBlanc".

3.2.11 Annex R11 expressly includes (i) near the top left corner, the issue date of "r 15, 2000" in small font-size; (ii) in the top right corner, "Peter [illegible]", in slightly larger font-size superimposed on a photograph depicting an individual; (ii i) occupying a substantial portion of the annex, a photograph depicting Eric Lyndros; and (iv) superimposed on that photograph, "Eric Lyndros", as part of "TORONTO MAKE BE-LEAF Will Eric Lyndros' dream come true?".

3.2.12 Annex R12 expressly includes (i) near the bottom left corner, the issue date of "DECEMBER 2000", in very small font-size; (ii) in the top left corner immediately below the periodical name, "Sandra Bullock"; and (iii) occupying a substantial portio n of the annex, a photograph depicting Sandra Bullock.

3.2.13 Annex R13 expressly includes (i) near the bottom left corner, the issue date of "DECEMBER 2000", in very small font-size; (ii) near the bottom right corner, "Renee Zellweger", exceeded in annex font-size only by the periodical name and followed b y, in the same font-style but font-sizes approximately one-third to one-quarter of her name's font-size, "'I think I look curvaceous and hot.' We do, too."; (iii) occupying a substantial portion of the annex, a photograph depicting Renee Zellweger; and (i v) to the left of, and in substantially smaller font-size than the text quoted in item "ii" of this paragraph, "Chris O'Donnell", "Wu-Tang Clan" and "Omar Epps".

3.2.14 Annex R14 expressly includes (i) near the top right corner the issue date of "JANUARY 2001", in very small font-size; (ii) below the issue date, "Uma Thurman", as part of "Join Uma Thurman and others in our Peace on Earth campaign" (in which her name and the words "Peace on Earth" are in bold); and (iii) occupying a substantial portion of the annex, a photograph depicting Uma Thurman.

3.2.15 Annex R15 expressly includes (i) near the bottom right corner the issue date of "December 2000", in very small font-size; (ii) near the top left corner, "HALEY JOEL OSMENT Cutest Leading Man" below a photograph depicting Haley Joel Osment; (iii) in the middle, and occupying a substantial portion of the annex, a photograph of Kathy Lee; (iv) slightly to the right of the middle, "Kathy Lee", as part of " EXCLUSIVE Meet the real Kathie Lee Don't you dare call her perky. Why leaving Regis has given her the guts to be her true self."

3.2.16 Annex R16 expressly includes (i) near the top left corner the issue date of "Sports Preview 2000", in moderate font-size; (ii) farther down on the left and occupying a substantial portion of the annex a photograph depicting Tiger Woods; (iii) nea r the middle "Athlete of the Year TIGER WOODS; (iv) near the top right corner a substantially smaller photograph depicting Vince Carter; and (v) along the right-hand side of the annex from near the middle to near the bottom, in substantially smaller font- size than the text quoted in item "iii" of this paragraph, "Vince Carter's Jams", "Kurt Warner's Rams", "Bobby Knight Falls", "Ken Griffey Jr. Bawls", "Marty McSorley's Slash" and "Mike Tyson Talks Trash".

3.2.17 Annex R17 expressly includes (i) near the bottom right corner the issue date of "December 2000", in very small font-size; (ii) near the top right corner, "HELEN HUNT" followed by, in the same font-style but a quarter the font-size, "EXCLUSIVE The Oscar-winning actress (she could be up for another!) on her 4 hot new movies, the Hollywood hunk she enjoyed kissing most, and the one thing she begged Mel Gibson not to do"; and (iii) occupying a substantial portion of the annex, a photograph of Helen Hu nt.

3.2.18 Annex R18 expressly includes (i) near the top left corner the issue date of "DECEMBER 2000/JANAURY 2001", in very small font-size; (ii) near the top right corner, in only slightly larger font-size, "CLINTON" as part of "PRESIDENT CLINTON'S EXIT I NTERVIEW", with a photograph depicting then U.S. President Bill Clinton; (iii) in the middle, occupying a substantial portion of the annex, a photograph depicting Matt Damon; (iv) near the bottom, "MATT DAMON", exceeded in annex font-size only by the peri odical name, and followed by "BY CHRIS CONNELLY" in relatively small font-size and then in font-size comparable to Matt Damon's name "'I literally have nowhere to sleep.'"; and (v) along the left-hand side of the annex from near the top to near the bottom , in substantially smaller font-size than the text quoted in item "iv" of this paragraph, "THE NEW SOCIAL WARS BY MICHAEL GROSS", "WHAT MAKES G.E.'S JACK WELCH GREAT BY HOLLY PETERSON", "DARYL HANNAH'S NAKED TRUTH BY HOLLY MILLEA", "BING CROSBY IS HIP FRO M GARRY GIDDINS NEW BOOK", "BOY CRAZY! BIRTH OF A FAD BY MIMI SWARTZ" and "DANIELLE STEEL'S PIG'S BUTLER BY THORNHALLUR VILHJALMSSON"- the words "BY" or "FROM", and the names immediately after them, being in the same font-style, but approximately half the font-size, as the words immediately before them.

3.2.19 Annex R19 expressly includes (i) near the top left corner the issue date of "DECEMBER 2000", in very small font-size; (ii) below the issue date, "Exclusive Photo Shoot" followed by "Tori Spelling" as part of "9021 OH! Tori Spelling Unzipped", exce eded in annex font-size only by the periodical name; (iii) in the middle, occupying a substantial portion of the annex, a photograph depicting Tori Spelling; and (iv) to the right of that photograph, in substantially smaller font size than the text quoted in item "ii" of this paragraph, "KATIE HOLMES", "PUNKY BREWSTER" and "BEASTIE BOYS".

3.2.20 Annex R20 expressly includes (i) near the top left corner, "NOV", in very small font-size and apparently as an abbreviation for the issue month of November; (ii) in the center of the middle a photograph depicting four individuals, who seem to be m odels and none of whom seem to be named in the annex, below which depiction is "who is the model of the year?"; and (iii) on the flanks of the middle, in the same font-style, but same or smaller font-size, as the text quoted in item "ii" of this paragraph , "HELMUT NEWTON'S Lifetime of Style & Desire", "Ian Schrager's Most Affordable Housing'" and "How Not to Make Espresso By Jeffrey Steingarten".

3.2.21 Annex R21 expressly includes (i) from near the top (a) occupying a substantial portion of the annex, the title "THE LIVES OF DANIELLE STEEL" and (b) in much smaller font-size but similar font-style, the subtitle "The Unauthorized Biography"; and ( ii) near the bottom, in mid-range font-size and substantially similar font-style, the by line "VICKIE L. BANE & LORENZO BENET".

3.2.22 Annex R22 expressly includes (i) near the bottom (a) the title "DIANA IN SEARCH OF HERSELF" and (b) in similar font-size and different font-style, the subtitle "Portrait of a Troubled Princess"; (ii) in the middle and above, occupying a substanti al portion of the annex, a photograph depicting Lady Diana; and (iii) near the very bottom, in font-size smaller than but font-style similar to the title, the by line "SALLY BEDELL SMITH".

3.2.23 Annex R23 expressly includes (i) near the top (a) the title "HOWARD STERN" and (b) farther down (bracketing the photograph mentioned in item "ii" of this paragraph), in smaller font-size and different font-style, the subtitles "KING OF ALL MEDIA" and "THE UNAUTHORIZED BIOGRAPHY"; (ii) in the middle, occupying a substantia l portion of the annex, a photograph depicting Howard Stern; and (iii) near the bottom, in a font-size and font-style similar to the upper subtitle, the by line "PAUL D. COLFORD".

3.2.24 Annex R24 expressly includes (i) near the top (a) the title "JACQUELINE KENNEDY ONASSIS" and (b) in smaller font-size and different font-style, the subtitle "A Portrait of Her Private Years"; (ii) in between the title and subtitle, a painting or photograph or perhaps hand-colored photograph, depicting Jacqueline Kennedy Onassis; and (iii) near the bottom, in the same font-size but different font-style as the subtitle, the by line "LESTER DAVID".

3.2.25 Annex R25 expressly includes (i) near the top (a) the title "JUST JACKIE" and (b) in smaller font-size but similar font-style, the subtitle "HER PRIVATE YEARS"; (ii) in the middle, occupying a substantial portion of the annex, a photograph depicti ng Jacqueline Kennedy Onassis; and (iii) near the bottom in similar font-size and font-style to the subtitle, the by line "EDWARD KLEIN".

3.2.26 Annex R26 expressly includes (i) diagonally from the bottom left to towards top right (a) the title "JERRY SPRINGER", (b) above that, in half the font-size and a different font-style, "UNAUTHORIZED BIOGRAPHY!" and (c) below the title, in the same font-style as the title but approximately one-quarter the font-size, the by line "AILEEN JOYCE"; and (ii) above the items described in "i" of this paragraph, a photograph depicting Jerry Springer and flanked by smaller photographs depicting other individu als not named in the annex.

3.2.27 Annex R27 expressly includes (i) in the top and right margins the title "The Klein Revolution"; (ii) in the middle, occupying a substantial portion of the annex, a photograph depicting Ralph Klein and; (iii) in the bottom margin, in the smaller fo nt-size but similar font-style as the title, the by line "MARK LISAC".

3.2.28 Annex R28 expressly includes (i) in the top right corner the page number "601"; and (ii) three columns of book citations, in which especially the central column largely comprises citations in which the books (a) have titles the first word of which is the first name "Bill" or "Billy" and (b) are by or about individuals having such first names.

3.2.29 Annex R29 expressly includes (i) in the top right corner the page number "829"; and (ii) three columns of book citations, which largely comprise citations in which the books (a) have titles the first word of which is the first name "Joe" or "John" and (b) are by or about individuals having such first names.

3.2.30 Annex R30 expressly includes (i) in the top left corner the page number "830"; and (ii) three columns of book citations, which largely comprise citations in which the books (a) have titles the first word of which is the first name "John" or "Johnn y" or "Jon" or "Jonah" or "Jose" or "Joseph" or "Joshua" and (b) are by or about individuals having such first names.

3.2.31 Annex R31 expressly includes (i) in the top right corner the page number "939"; and (ii) three columns of book citations, which largely comprise citations in which the books (a) have titles the first word of which is the first name "Paul" or "Paul ine" and (b) are by or about individuals having such first names.

3.2.32 Annex R32 expressly includes (i) in the top margin the subtitle "IS THE INTERNET BRINGING THE WORLD INTO SHARPER FOCUS?" and the "by" line "Virginia Postrel"; (ii) in the bottom right corner the issue date "October 2, 2000", the page number "49" a nd the periodical's name "Forbes ASAP"; and (iii) in the body of the article various references to "Shakespeare", "Sir Philip Sidney", "Plato", "Galileo" and, in captioning or depicting a photograph of a February 1993 cover of Spy Magazine, the following: "CAMILLE PAGLIA ADVICE COLUMN DEBUT!", "HILARY CLINTON" (with photograph), "Spike Lee for Rent" and "Letterman's Deal".

3.2.33 Annex R33 appears to be a continuation of the Annex R32 document and further includes a reference to "Kurt Anderson".

3.2.34 Annex R34 appears to differ from Annex R1 solely by also having, beginning from the fifteenth page, at the end of what was in Annex R1 the information under the "RESPONSE TO THE COMPLAINT ACCORDING TO THE UDRP" heading, (i) a subheading "5b(i) Fu rther statements to this UDRP Item"; and (ii) under that subheading eight paragraphs numbered 1 through 8. Those eight paragraphs appear to expressly include two types of information, often intricately woven or blended within or between one another: (i) f actual background of, or which can be contended to be of, this proceeding; and (ii) contentions by the Respondent. Consequently, the Administrative Panel considers it appropriate to defer further statements about Annex R34 to the "Parties' Contentions" po rtion of this decision (i.e. paragraphs 4.0 et seq under that heading), and so defers it.

4. Parties' Contentions

Overview

4.0 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 et seq under that heading) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or through one or more of admission, notice, perception and inference) any of the information set out in paragraphs 4.0.1 et seq under this heading of "Parties' Contentions".

4.0.1 As indicated by paragraphs 2.1.1 through 3.2.34 hereof, in this proceeding the Complainant's (i) procedural contentions appear to be in the Complainant's e-mail attachment quoted in paragraph 2.3.1 hereof, the Complainant's e-mails quoted in paragr aphs 2.6.4 and 2.6.6 (second half) hereof and Annex C12, and will not be set out again here; and (ii) substantive contentions appear to be in the Complaint's form.

4.0.2 As indicated by paragraphs 2.1.1 through 3.2.34 hereof, in this proceeding the Respondent's (i) procedural contentions appear to be in the Respondent's e-mail quoted in paragraph 2.2.2 hereof, Annex R35 and Respondent's e-mails quoted in 2.6.5 an d 2.6.6 (first half) hereof, and will not be set out again here; and (ii) substantive contentions appear to be in (a) the Response's form and (b) Annexes R1, R2, R3 and R34.

The Complainant's Substantive Contentions

4.1.1 The Complaint's form includes the Complainant's contention in section 2(a), which includes information to the effect that the name and contact information of the Complainant are as set out in paragraph 1.1 item "(i)" hereof.

4.1.2 The Complaint's form includes the Complainant's contentions in section 3(a), which includes information to the effect that the name and contact information of the Respondent are as set out in paragraph 1.1 item "(ii)" hereof.

4.1.3 The Complaint's form includes the Complainant's contentions in section 3(b) which are as to the name (i.e. "Justin Lumsden" of the organization "Internet North") and contact information of the "Respondent's Other Contact or Representative".

4.1.4 The Complaint's form includes the Complainant's contentions in section 4(a) which are to the effect that the Contested Domain Name is as set out in paragraph 1.2 hereof and that the Registrar for the Contested Domain Names is as set out in item "i" of paragraph 2.1.4 hereof.

4.1.5 The Complaint's form includes the Complainant's contentions in section 4(b) regarding the "Mark in Question" i.e. that since the Complainant was directed by the Provider's form to "Specify the trademark(s) or service mark(s) on which the Complaint is based and, for each mark, describe the goods or services, if any, with whic h mark is used. For each mark, please identify countries involved and make suitable references to the registration certificates (if any) included in the paper annexes you are sending", that

"1. TIM ALLEN, as used by the actor and comedian (Timothy Alan Dick, whose stage name is Tim Allen) for Entertainment Services, protected under common law trademark. The name Tim Allen is also protected under the common law right of publicity.

"2. TIM ALLEN, United States Trademark Application 76/025,593; for International Class 41, Entertainment Services, including audio and visual media; filed 4/13/00, pending.

"3. TIM ALLEN, United States Intent-to-Use Service Mark Application 75/775,652; for International Class 042, Industrial Design including Commercial Art and Graphic Art Design for others; filed 8/13/99, pending."

4.1.6 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Copy or Similarity" i.e. that since the Complainant was directed by the Provider's form to "Describe the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights", that

"1. The domain name is identical to the Complainant's common law trademark, name, pending U.S. Trademark, and pending U.S. Service Mark. The timallen.com domain name is used for identical services as the Complainant's TIM ALLEN marks.

"2. The timallen.com domain name provides a seamless link to a web site having the domain name celebrity1000.com. The celebrity1000.com web site is devoted to the promotion of individual celebrities and associated Entertainment Services. The Complainant's goods and services are directed to the identical group of consumers to whom the Respondent is directing its services."

4.1.7 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Illegitimacy" i.e. that since the Complainant was directed by the Provider's form to "Describe why the Respondent (Registrant/Domain-name holder) should be considered as having no rights or legitimate interests in respect to the contested domain name(s)" that

"1. The name "TIM ALLEN" is extremely strong in the field of entertainment goods and services. The Respondent is using the domain name timallen.com merely as a link to draw consumers to the entertainment-themed, commercial web site celebrity1000.com, a do main name also owned by the Respondent. Respondent's celebrity1000.com web site identifies Mr. Tim Allen specifically, establishing that Respondent selected the timallen.com domain name with knowledge of Complainant's rights. The impression created by Res pondent's use of the timallen.com domain name, linked to the celebrity1000.com web site, is that Complainant endorses Respondent's celebrity1000.com web site. This association is improper.

"2. Regarding the name "TIM ALLEN," the Complainant has the exclusive right to commercially exploit the identity "TIM ALLEN" for Entertainment Services. The Respondent is commercially exploiting the name "TIM ALLEN" for the identical services without the permission of the Complainant. The Respondent's web site timallen.com is exclusively used to draw consumers to the entertainment-themed, commercial website celebrity1000.com.

"3. Respondent has made no effort to use the timallen.com domain name for anything other than a link to Respondent's commercial site celebrity1000.com, thereby suggesting that Respondent merely intends to reserve the timallen.com domain name in contravent ion of Complainant's rights."

4.1.8 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Bad Faith" i.e. that since the Complainant was directed by the Provider's form to "Describe why the contested domain name(s) should be considered as having been registered and being used in bad faith" that

"1. The Complainant asserts that the Respondent's use of the mark TIM ALLEN in the domain name timallen.com is exclusively premised on commercial exploitation of the TIM ALLEN mark in the field of Entertainment Services. While the "official" registrant of the timallen.com domain name is the "Tim Allen Club," no such club appears to exist. The owners of the timallen.com domain name are in fact the same entity that owns celebrity1000.com, namely Internet North. The Respondent is seeking to profit from the g oodwill generated by the Complainant's efforts in developing the mark. The fact that Respondent appears to have created illusory owners of the timallen.com domain name to distract from the common owner, Internet North, suggests bad faith.

"2. The timallen.com web site is without content; it merely serves as a seamless link to an entertainment-themed, commercial web site operated by the true registrants, Internet North. As such, it can hold no value for any legitimate fan club. In fact, whi le the registrant of the timallen.com domain name is now listed as "Tim Allen Club," five months ago the registrant was listed as "General Web Club." The fact that Respondent appears to have created illusory owners of the timallen.com domain name to distr act from the common owner, Internet North, suggests bad faith.

"3. The use of the name "TIM ALLEN" in connection with the timallen.com domain name is completely void of good faith. The Respondent is capitalizing on the valuable identity of the Complainant for commercial exploitation. Respondent engages in the same co nduct with respect to numerous other celebrities, including Harrison Ford, John Travolta, and Mel Gibson. The pirating of other celebrity identities also suggests bad faith."

4.1.9 The Complaint's form includes the Complainant's contention in section 4(d), regarding "Remedy Sought", i.e. "transferred to complainant".

5.8.0 The Complaint's form includes the Complainant's contention in section 4(d), regarding "Other Proceedings", that "Currently no other proceedings are pending."

The Respondent's Substantive Contentions

4.2.0.1 The Response's form includes the Respondent's contention in section 2(a), which includes information to the effect that the name and contact information of the Respondent are as set out in paragraph 1.1 item "(ii)" hereof and in paragraph 4.1.2 he reof.

4.2.0.2 The Response's form includes the Respondent's contention in section 2(b) that the "Respondent's Prime Contact or Representative" is "Jeff Burgar" of the organization "Time Allen Club" and that, aside from also including a street address and from h aving a different preface in the e-mail address, that person's contact information is the same as the contact information referred to in paragraph 4.1.3 hereof.

4.2.1 The Response's form includes the Respondent's contention in section 3(b) regarding "Copy or Similarity" i.e. that since the Respondent was directed by the Provider's form to "Give your response to the allegations of the Complainant as to the manner in which the contested domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights" that

"1) The Respondent denies the domain name timallen.com is identical to the common-law or pending trademarks of Tim Allen. Despite well-intentioned judgments from both respected Panelists and Courts, the concept a domain name is always and absolutely ident ical to a trademark with the exception of the '.com' extension is in error.

"In the particular usage of timallen.com, the manner of usage is that of a book title or magazine article or newspaper headline. The usage is intended, in the same manner as such titles, to guide the user to pertinent information about the pe rsonage in the 'headline' or 'title.'

"If the argument commonly accepted today is indeed pre-eminent, then it stands to reason any usage of a person's name or a company name in any form of web address without permission is illegitimate. Thus, if www.timallen.com is a trademark i nfringement, then www.hollywood.net/timallen is an infringement, as is www.entertainmenttonight.com/tvcomedy/timallen.html or www.timallen.goodnews.com

"All of the above are Uniform Resource Locators, or URL's. URL's can apply just as easily to the actual content on a web page, such as www.news.com/#timallen. Such an URL will direct one right to content. It seems somewhat pointless to argue one must relegate that particular content to a title such as www.news/#wecantsaywho. Such an argument eventually collapses under its own weight.

"In the Respondent's usage, the argument this particular domain name is identical is textually accurate, but conceptually different, in the same way a book title about a celebrity may be identical in name, but obviously, can conceptually be somewhat different. Further, the domain name timallen.com is not used for identical services as the Tim Allen marks and there is no evidence produced to suggest such. Therefore, the statement the mark is 'identical' needs fair qualification and deeper pro bing. In the case of www.timallen.com, comparisons fail, thus the marks are not identical.

"4c2) The timallen.com domain name no longer points to Celebrity 1000. As stated in our Preamble above, the UDRP has no oversight or appeal process. As shown in the 'Rough Justice' study (Appendix 2) there are many bad decisions, just a few of which are l isted in the Study. We had high hopes ICANN would fine-tune the UDRP to send clear signals to legitimate website publishers and users such as ourselves as to exactly what usage on the Internet is permissible, and what is not. Unfortunately, the myriad of contradictory decisions, the 'invention' of new rules by Panelists, widespread differences of opinions on the same issues by often well-meaning Panelists, the absence of appeal, and as already stated, the apparent absence of an oversight board all continu e to leave us in limbo.

"We thus are moving forward with our plans to develop individual websites for our celebrity names and have started this process.

"The accusation timallen.com OR celebrity1000.com is used to promote the same services as the Complainant is ludicrous.

"Celebrity1000 is a collection of biographies and opinion polls, none of which are covered by the Complainant's marks. Further, the Respondent claims freedom of expression rights, in the same manner a television show, perhaps Entertainment T onight running an item about a celebrity comedian and telling a few jokes at the same time is in no way infringing on anything the celebrity comedian might be doing.

"Further, there is no evidence produced the Respondent is targetting people interested in humor. The Respondent is targetting people interested in Tim Allen or celebrities, comedians or newsworthy figures in general, in the same manner as a newspaper or magazine or book targets that interest group."

4.2.2 The Response's form includes the Respondent's contention in section 3(b) regarding "Illegitimacy" i.e. that since the Respondent was directed by the Provider's form to "Give your response to the allegations of the Complainant as to why the Respondent should be considered as having no rights or legitimate interests in resp ect of the contested domain name" that

"1) The UDRP seemingly makes no provisions for the growth or evolution of a web site. It is one of the most powerful features of the World Wide Web that web sites can be changed quickly, easily and dramatically. The UDRP, perhaps intentionally, makes no a llowance for changes in a web site that would, in the Panelist's opinion, allow a domain name owner to keep a domain name that might be in dispute.

"While some Panelists may argue it would be impossible to accept 'what ifs' and 'whatevers' and 'hypotheticals' in regard to changes in a web site, the fact does remain, there is no appeal in this process, and no exception to the draconian r esults. Therefore, we ask for leeway in allowing our 'what ifs.' 'Just because the heads that are rolling are peasant's heads, does not mean the peasants do not value them.' The Respondent does value this domain name

"The Respondent's final objective is to operate a fan appreciation web site at timallen.com and that site is now operating. It will not be repointed to Celebrity1000 and the Respondent will swear that in affidavit if that is required. Discla imers on the Celebrity1000 web site, and the content of that web site itself should be ample evidence no representation is made the Respondent is attempting to imitate or imply association or endorsement. The Respondent emphatically denies the Complainant 's accusations.

"The new website, The Unauthorized Tim Allen Web Site (Appendix 4), takes this 'non-association' to an extreme and we believe the Complainant and the Panel should find this satisfactory.

"Further, to the best of our knowledge, no relationship is needed and no permission is needed to use a celebrity or corporate name in a newspaper headline, on the cover of a magazine, or as the title of a book. Other than the desire of some parties to stifle freedom of expression, we see no reason why we cannot title our website, www.timallen.com. We believe our rights are clear in titling our website www.timallen.com just as they would be in titling a magazine article Tim Allen, or a book T im Allen.

"We are not seeking to be known as Tim Allen. We are seeking to be known as www.timallen.com, have attempted to do this for four years, and will continue to do so if allowed. We have no desire at all to pretend to be Mr. Allen any more than an author of a Allen biography who names his book 'Tim Allen' is pretending to be Mr. Allen. We believe there is a fundamental difference between impersonating a person, and operating a freedom of speech website ABOUT a person.

"No evidence of actual confusion or misleading impression of association exists.

"It is true Internet lawyers, court judges, and arbitration Panelists abound who see the gullibility of the Internet surfing public as being astronomical, if not in fact boundless. There is not a shred of evidence produced anywhere, and cert ainly not in this hearing to support this belief of astronomical gullibility.

"This gullibility of the average Internet user means:

a) Internet users experienced and smart enough to know how to operate a 'type-in' domain name must be dumb enough to think they will automatically reach an 'official' site of some kind
b) Then Internet users who know how to type do not know how to read disclaimers or ignore them completely
c) Then Internet users who know how to read do not in fact believe disclaimers if they are presented with them.
This stretches credulity to the absolute limit.

"One also wonders at what point does one say, 'enough is enough. At some point in time a person has to take responsibility for themselves. We cannot babysit them forever.' Except perhaps, in the 'command economy!'

"The ONLY thing the average Internet user expects when typing in a domain name or in fact, using a search engine, is to find SOMETHING about the topic, subject, item, company or person they are looking for. No evidence has ever been produced in any court or in any hearing that people expect to find an Official Web Site when typing in a domain or even when relying on a search engine.

"2) The Respondent denies this. Newspapers, magazines, websites and books all have the right to publish. Neither the timallen.com or the celebrity1000.com web site sells jokes, tim allen t-shirts, or any of the 'pending' articles. The only commercial acti vity on Celebrity1000.com is the sale of advertising. Newspapers and magazines sell advertising, and book publishers generally speaking sell their books. To impose a rule that ANY commercial activity is unallowed would have the effect of stifling freedom of expression.

"Notwithstanding this, in the absence of clear direction from ICANN, the web site www.timallen.com has no advertising and absolutely no commercial activity of any kind.

"3) The Complainant's statement is now in error. The domain name www.timallen.com now points to The Unauthorized Tim Allen Web Site."

4.2.3 The Response's form includes the Respondent's contention in section 3(b) regarding "Bad Faith" i.e. that since the Respondent was directed by the Provider's form to "Give your response to the allegations of the Complainant as to why the contested domain should be considered as having been registered and used in bad faith by the Respondent" that

"1)The registrant, listed as the Tim Allen Club, is as real as it has to be for the purposes of registration.

"There was nothing misleading or wrong with using this as the Registrant in 1996 when this domain was first registered and there is nothing wrong with this form today. All addresses and contact information is correct. The Registrar has not f orbade such usage and has had no trouble in 4 years accepting money from the Tim Allen Club. There is no requirement in the UDRP that states any particular form of Registrant is not acceptable. No notice was ever received in 4 years this form of registrat ions is not acceptable. There is nothing today in the Registration Rules precluding this form of registration.

"There is nothing in the Registration, or in the real world rules saying the Respondent needs to register, incorporate, form a society, take minutes or file annual reports or seek some kind of authorization in the real world to be a 'club'. A club can be a club of one person or can be a future club of 20,000, and that is that.

"Despite attempts to assign wrongful motives to use of this form, we see nothing wrong with using such a form today. The simple fact we have registered this domain name in this form should in fact, be prima facie proof of exactly what our ho nourable intentions have been and continue to be. If so required, the Respondent will swear in affidavit our good intentions.

"Further to this, it seems eminently appropriate to title a book about Tim Allen, 'Tim Allen.' See Appendix 5 for examples of other book titles about people.

"It seems eminently appropriate and acceptable practice to capture people's attentions by using their names in headlines or on magazine covers. In the world of electronic publishing, it seems eminently appropriate to title a web site timalle n.com or tim-allen.net or www.entertainment.com/timallen. See Appendix 5 for examples of magazine covers and headlines

"All of these uses may be seen as 'seeking to profit from the mark' but in fact they are accepted freedom of expression uses. It should also be so on the web, particularly in the new world of expanding gTld's. The UDRP seems to make few allo wances for freedom of expression uses. This is not correct.

"2) As stated above, the domain name now points to The Unauthorized Tim Allen Web Site. We assume the Complainant will agree this should hold some value for our legitimate club.

"Further to this, the Complainant is in error, and also has produced no evidence, to support his claim that five months ago the Registrant was another name. In fact, the tedious procedure involved in changing the Registrant name is such most people, including ourselves, only do this in the most extreme of circumstances. Since we always intended to operate a fan appreciation site and club, it makes no sense for us to have changed this from the original Registrant name of Tim Allen Club, to so mething else, and BACK again to Tim Allen Club.

"There are no 'illusory owners.' The Respondent Jeff Burgar and the Tim Allen Club are the owners of this domain name.

"3) As stated above, the Respondent makes no apology in capitalizing on the name in the same identical manner authors and writers and reporters 'capitalize' on the person about whom they are writing. To assign wrongful motives to this, in a free enterpris e society, strikes at the very heart of free expression. If free expression must be non-profit, ours would be a far less rich and less vocal society.

"The Respondent also wishes to point out, we view www.timallen.com as a fairly prominent 'soapbox.' It is more prominent today than say, tim-allen.org or www.goodnews.com/timallen.html might be. In that context, removing this domain from the Respondent, while still arguing the Respondent's freedom of expression rights are not curtailed because he has alternate forums, is in error.

"Alternate forums do indeed exist, but Hyde Park, the front page of the New York Times or a book titled 'Tim Allen', is a far preferable forum for free expression than is a soapbox at the South Pole, the back page of a real estate flyer in H oboken, New Jersey, or a book titled 'A Comedian We Can't Name'. It just happens, in the world of first-come, first-served domain names, the Respondent registered this one first. In the 'command economy' of course, relegating free speech to the South Pole is a necessity and it would only be a vaguely, regrettable side effect.

"Further to this also, the Respondent makes no apologies for wanting to use the same format for a few other celebrities. The Respondent makes no apologies for not having the financial resources to build the web sites as fast as would be desi rable, but they are coming. The Respondent denies there is any 'piracy' involved here. There is no evidence of any conduct less than meritorious. Again, it just happened the Respondent decided to call their website this name first.

"Evidence of registration of multiple domain names is, in itself, evidence of nothing. Multiple domain name registration is not strictly evidence of bad faith and in reality, has nothing to do with bad faith. Companies such as Procter and Ga mble, Ford Motors and Johnson and Johnson are well-known for registering multiple domain names. It is ludicrous to suggest the Respondent is acting in bad faith, but large companies are not.

"a) We are somewhat baffled by the repeated inference of the Complainant one is not allowed to make money on a website. However, given the hundreds of millions of dollars presently lost by companies such as Amazon and Infospace on the Intern et, we are not ashamed to say, we do not have any commercial gain. We lose money.

"The actual reading of the UDRP is 'for commercial gain by creating a likelihood of confusion with Complainant's name.'

"People have reasonable expectations when they buy a car, a music CD, a soft drink, a newspaper or a magazine.

"If the car says 'Ford' on it, they expect it to actually be a Ford. If the CD says 'The Beatles' on it, they expect it to be a CD of their work. If the soft drink says 'Coca-Cola' they do not expect beer.

"If they see a newspaper headline that says 'Tiger Woods' they do not expect to see

a) a newspaper owned by Tiger Woods b) a story written by Tiger Woods c) a story authorized by Tiger Woods d) a story endorsed by Tiger Woods

They expect to see a story about Tiger Woods, no more and no less.

"If they see a magazine cover that says 'Alyssa Milano' they do not expect to open the magazine and see

a) Alyssa Milano products for sale b) a magazine company owned by Alyssa Milano c) a story written by Alyssa Milano d) a story endorsed by Alyssa Milano

They expect to see a story about Alyssa Milano, no more and no less.

"These are common sense expectations. From 1985 to 1995, the model of the Internet as newspaper or magazine was indeed the way the Internet was developing.

"The idea that by typing in www.generalmotors.com and you would be whisked to the General Motors web site is not accurate today and certainly was not accurate almost five years ago. In 1996, fewer than 200 of the Fortune 500 companies even h ad websites, never mind having their own domain names as www.bigcompany.com.

"The thought that a newbie on the Internet would be 'confused' by typing in a company name and would actually reach that company was even more ludicrous in 1996 than it is today.

"The ONLY honest expectation any reasonable user of the Internet has is they will reach SOMETHING about a person or company if they type in a domain name, or use a search engine. The Respondent admits there are opinions out there some people do honestly believe there is a likelihood of confusion. Yes indeed, and once upon a time, lots of people thought the world was flat, the earth was the centre of the universe, the Cold War would last forever, Japan had a better economic model than anyone else, and the Internet boom would last forever. See Appendix 6. 'Mine Eyes Deceive Me'

"Magazines, newspapers and books freely use company and celebrity names and even photos to attract people to their pages. This is absolutely and completely allowed under freedom of expression. Do we agree the model of the Internet is that of magazine or newspaper or television or book, all of which use company and celebrity names for commercial gain? Do we agree in a free Internet? Or, do we agree in the Internet as Corporate Stronghold or Celebrity Moneymaker?

"We are NOT creating confusion anymore than a title of a book or a magazine article creates confusion. Once again, there is NO evidence to support the claim a domain name creates confusion. There is NO evidence people ignore disclaimers. The re is NO evidence we have portrayed ourselves as anything remotely similar to ANY official web site of the Complainant."

4.2.4.0 Annex R1 consists of six parts, each headed as follows: (i) "PREAMBLE" (first through third pages), (ii) "HISTORY" (third through fifth pages), (iii) "FREEDOM OF EXPRESSION" (fifth through sixth pages), (iv) "REPLY TO THE COMPLAINT ITEM BY ITEM" ( sixth through thirteenth pages), (v) "RESPONSE TO THE COMPLAINT ACCORDING TO THE UDRP" (thirteenth through fifteenth pages) and (vi) "CONCLUSION" (fifteenth through seventeenth pages).

4.2.4.1 Aside from three apparent exceptions, the first part of Annex R1 appears to consist of contentions (i) that implicitly assume, or implicitly are to support, the Respondent's contentions in or about (a) the Response's form content quoted in paragra phs 4.2.1 through 4.2.3 hereof, (b) each of Annexes R2, R3 and R34 or (c) the rest of the parts of Annex R1; or (ii) regarding matters which are not in issue, or are not amenable to being in issue, between the Complainant and the Respondent in this procee ding. The first apparent exception is a reference to "our rights to own" the Contested Domain Name (first page). The second apparent exception is the statement that "Our legal opinions of the day in 1996 were clear we were doing nothing wrong" (second pag e). The third apparent exception is the statement that "[i]n a court of law" the Respondent "would" have "arguments" that include that "freedom of speech rights are important and supersede the rights of trademark holders. To name only two embodiments, the United States Constitution and Canada's Charter of Rights" (second page).

4.2.4.2 The second part of Annex R1 appears to consist of contentions (i) that implicitly assume, or implicitly are to support, the Respondent's contentions in or about (a) the Response's form content quoted in paragraphs 4.2.1 through 4.2.3 hereof, (b) each of Annexes R2, R3 and R34 or (c) the rest of the parts of Annex R1; or (ii) regarding matters which are not in issue, or are not amenable to being in issue, between the Complainant and the Respondent in this proceeding.

4.2.4.3 The third part of Annex R1 appears to consist of contentions (i) that implicitly assume, or implicitly are to support, the Respondent's contentions in or about (a) the Response's form content quoted in paragraphs 4.2.1 through 4.2.3 hereof, (b) ea ch of Annexes R2, R3 and R34 or (c) the rest of the parts of Annex R1; or (ii) regarding matters which are not in issue, or are not amenable to being in issue, between the Complainant and the Respondent in this proceeding.

4.2.4.4 The fourth part of Annex R1 differs from the Response's form content quoted in paragraphs 4.2.1 through 4.2.3 hereof only by also having two paragraphs at its beginning:

"4b) (all items) The Respondent does not dispute the Complainant appears to have trademarks in certain classes. However, the Respondent is not doing business, contemplating doing business or appearing to do business in any of the classes mentioned in any manner. The Respondent denies any implication it is passing off itself as having anything to do with Timothy Alan Dick. The Respondent, as a matter of course admits the website www.timallen.com has something to do with Tim Allen. The Respondent denies it is passing itself off as 'Tim Allen' himself. See Appendix 4. 'The Unauthorized Tim Allen Web Site.'

"4b1) The Respondent denies the trademark protects in some manner the Complainant from legitimate freedom of expression usage, or in some manner overrides or prevents timallen.com and the Respondent from exercising their legitimate rights of free expressi on."

4.2.4.5 The fifth part of Annex R1 is as follows:

"4a)

"i) We re-assert this domain name is not identical or confusingly similar to a trademark or service mark in which the complainant has rights.

"ii) We have established rights under freedom of expression, as well as four years of use which have established our rights to operate a website in this domain name. As evidenced by The Unauthorized Tim Allen Web Site, we have legitimate interests in the domain name.

"iii) Our use of the domain name is not used in bad faith as evidenced by our honourable intentions to operate a fan appreciation web site. The domain name was not registered in bad faith, as evidenced by our intents to operate a freedom of expression web site and all the creations which allow fans to state their opinions, including ongoing message boards and opinion polls. The Respondent denies any bad faith.

"4b)

"i) no evidence was produced, because there is none, the Complainants were ever approached to buy this domain name.

"ii) no evidence was produced the intent of registering this domain name was to prevent an owner of any trademark in tools or comedy or design from reflecting his or her mark in a corresponding domain name. Hundreds, if not thousands, of domain names comp rising the character string 'tim' or 'allen' or 'timallen' are available and have not been registered by the Respondent.

"The Respondent admits it has registered many domain names. The Respondent admits in the normal course of business it registers domain names for other individuals and companies. The Respondent admits in the course of normal business it has constructed ove r 300 Internet web sites using various domain names. The Respondent admits companies like Procter & Gamble, Ford, Johnson & Johnson and multitudes of others register many domain names. The Respondent emphatically denies registering multiple domain names i n this instance demonstrates any wrongful 'pattern of conduct.'

"iii) No evidence was produced this domain name was primarily registered for the purpose of disrupting the business of a competitor. The Respondent denies this in any event.

"iv) The Respondent admits it is using this domain name to attract users to the site. This is in the same manner as an author titles his book to attract potential readers. Or a newspaper uses a name in a headline to attract readers. Or a magazine uses nam es on its cover or in titles of stories. As stated however, there is no commercial gain as should be obvious.

"Further, the actual amount of 'attraction' in the case of this domain name is unknown. However, the log files show about 20 users per day enter the website under the type-in 'timallen.com.' This is negligible traffic and should be evidence there is no co nfusion among the presumed millions of Tim Allen fans.

"The Respondent absolutely denies any attempt to 'create a likelihood of confusion etc' as evidenced by the actual title on the web site, The Unauthorized Tim Allen Web Site, and the prominent disclaimers. There is no evidence produced of confusion. To re state as shown in the Respondent's Reply to the Complaint earlier in this brief, to state confusion exists is to stretch credulity to the limit.

"The Respondent denies any attempt at 'commercial gain' as evidenced by the complete lack of anything remotely resembling commercial activity on the site.

"4c)

"i) The Respondent questions the 'Catch 22' nature of this item. Item 4b(iv) of the UDRP appears to prohibit 'commercial gain.' Yet, this item , 4c(i) seems to advocate a 'bona fide offering of goods or services.'

"In any event, the domain is in use in a bona fide manner, pointing to a web site, since 1996.

"ii) Since 1996, those persons wanting to have been able to access services at Celebrity1000 by using the name timallen.com and have come to associate the domain name, www.timallen.com with Celebrity1000, where in fact they found information about Tim All en.

"Although they now find information on Tim Allen at www.timallen.com, they are now deprived of a convenient link to Celebrity1000, because of the advertising carried on Celebrity1000, and the lack of clear direction www.timallen.com is allowed or not allo wed to link to the Celebrity1000 web site.

"iii) The Respondent questions the authority of this Item.

"Freedom of expression is not identified as a fair use in the UDRP and in fact, no 'legitimate non-commercial or fair use' is identified. ICANN issues no bulletins or direction, at least to the using public, on 'legitimate non-commercial or fair uses'. P revious Panelist decisions are across the map and at odds with each other in describing what is and what is not a 'legitimate or fair use.'

"In any event, the Respondent claims freedom of expression rights as a fair use. The Respondent's web site shows use is 'non-commercial'. There is no evidence produced the www.timallen.com website has any intent of commercial gain. There is no evidence p roduced there is any confusion. There is no evidence any attempt was made, or there is no evidence or accusation there is any tarnishment of trademark or service mark."

4.2.4.6 Aside from eight paragraphs expressing apparent exceptions, the sixth part of Annex R1 appears to consist of contentions (i) that implicitly assume, or implicitly are to support, the Respondent's contentions in or about (a) the Response's form content quoted in paragraphs 4.2.1 through 4.2.3 hereof, (b) each of Annexe s R2, R3 and R34 or (c) the rest of the parts of Annex R1; or (ii) regarding matters which are not in issue, or are not amenable to being in issue, between the Complainant and the Respondent in this proceeding. The eight paragraphs are as a block of six p aragraphs (spanning from the fifteenth page to the sixteenth page) at the beginning of the part and then as two paragraphs (the first of which refers to an intervening paragraph, and all of which are on the sixteenth page). The eight paragraphs are as fo llows:

"The Respondent has not engaged in any activity even remotely covered by any existing or pending trademark of the Complainant. There is no evidence of a trademark in a website called timallen.com or any evidence of a trademark in any website.

"In fact, the Respondent has used the domain name timallen.com for 4 years. It has come to be known under that name and has established clear common law rights in the domain name. We have absolutely no delusions, or desire, to suppress anyone else's varia tions on any domain or sub-domain containing the character string timallen, as we believe that would be a suppression of freedom of expression.

"The Respondent claims freedom of expression rights in both Canada and the United States where, both Respondent and Complainant are domiciled, supersede the UDRP.

"The Complainant has established no basis for bad faith. The domain name was registered in 1996. Bad faith didn't even exist at that time. Our intent was to build a fan appreciation web site incorporating freedom of expression and that has materialized.

"The tortuous logic used by some to turn what name is listed as the "Registrant" into proof of bad-faith or as some evidence of wrong-doing continues to astound observers of domain name disputes. In 1996 as is now, there was no legal requirement to place anything at all under the Registrant heading in a name registration. There is no requirement the Registrant be the owner of the name. The only important items required then, as now, are Administration Contact, Billing Contact, and Technical Contact. We ha ve never falsified these items. A random sample of any 100 domain names on the Internet will show a plethora of imaginative listings in the Registrant column, none of which should be taken as evidence of anything wrong. There is no evidence any Registrar is making any effort to change this, further proof it is irrelevant.

"The Respondent states for the record, although never been asked, the ownership of the domain name rests with Jeff Burgar and with the Tim Allen Club. There is no other owner.

[Intervening paragraphs.]

"In the rush to protect trademark rights to the exclusion of much more important rights, this is where we are heading.

"The Complainant has produced no evidence of any wrongdoing by the Respondent, but has tried to intimate something nefarious is afoot. In fact, there is no such happenstance."

4.2.5 Annex R2 does not expressly include a date but appears to be a paper (or extract from a paper), version "V2.1" (first page), by "Milton Mueller" (first page) and to expressly include two other pieces of information in particular. One is (at the fi fth page) that "Domain names act as signs, identifiers, locators, and messages. As a form of public communication, the policies applied to disputes affect rights of free expression as well as intellectual property rights." The other is (at the twenty-four th page) that "The Internet is a forum for discussion, commentary and information exchange as well as commerce. Domain names, like book titles or file names, are simply semantically meaningful pointers to information."

4.2.6 Annex R3 appears to be a "Statement of Policy" (first page) under "Docket Number: 980212036-8146-02" (first page) by the "National Telecommunications and Information Administration" (first page) of the "United States Department of Commerce" (first page); it is stated therein to "not itself have the force and effect of law" (second page) and that it "is not a substantive rule, does not contain mandatory provisions and does not itself have the force and effect of law" (nineteenth page). At the second page thereof it is stated that "Domain names … map to unique Internet Protocol (IP) numbers … that serve as routing addresses on the Internet. The domain name system (DNS) translates Internet names into the IP numbers needed for transmission of informati on across the network." At the twentieth page thereof it is stated "Internet numbers are a unique, and at least currently, a limited resource."

4.2.7 The eight paragraphs of Annex R34, referred to in paragraph 3.2.34 hereof are as follows:

"1) The Respondent has established clear common-law rights to the use of this name as the title of a World Wide Web site by using this name for four years.

"2) The Respondent has made, and is making, clearly legitimate use of the domain name.

"3) The Respondent has not done anything that would imply any intent that is less than honourable.

"4) The Respondent has kept this domain name in good financial repair for four years.

"5) The Respondent is in the business of building web sites, both for commercial and non-commercial intent. The Respondent has constructed well over 200 web sites in the past five years, and has a legitimate interest in registering domain names for future development.

"6) The Respondent has in no way done anything to tarnish this domain name in any manner.

"7) The Respondent has in no way done anything that may be construed as disrupting someone else's business.

"8) The Respondent restates, if www.timallen.com is an illegitimate use, it therefore stands all permutations of a web address, such as timallen.entertainers.com or www.entertainment.net/timallen.html are also illegitimate uses. All these addresses can be accessed by "type-ins" and all are accessible to search engines and browsers. Notwithstanding precedent opinion, the use made by the Respondent is completely legitimate."

5. Discussion and Findings

Overview

5.0 In addition to this "Overview" segment, there are nine main segments, "1", "2", "3", "4", "5", "6", "7", "8" and "9", under this heading of "Discussion and Findings". Those segments are as to: (1) procedural matters regarding events that occurred o n or before 8 January 2001; (2) procedural matters regarding events that occurred after 8 January 2001 but before 18 January 2001; (3) procedural matters regarding events that occurred on or after 18 January 2001 but before 22 January 2001; (4) procedural matters regarding events that occurred on or after 22 January 2001 but before 29 January 2001; (5) procedural matters regarding events that occurred on or after 29 January 2001 but before 2 February 2001; (6) procedural matters regarding events that occu rred on or after 2 February 2001 but before 12 February 2001; (7) procedural matters regarding events that occurred on or after 12 February 2001; (8) substantive matters; and (9) summary, and consequences, of segments "1", "2", "3", "4", "5", "6", "7" and "8". The Administrative Panel finds it appropriate that before addressing those nine segments it state some of its findings about (i) this proceeding and the Administrative Panel's role in it; (ii) the Administrative Panel's approach to that role, as com pared with and contrasted to how each Party seems to have urged the Administrative Panel to approach that role; (iii) jural law that can be applicable in and to this proceeding; and (iv) the Administrative Panel's terminology herein regarding jural facts, jural laws and jural relations (as compared with and contrasted to the terminology of other than the Administrative Panel).

5.0.1 In view of the circumstances of this proceeding, especially the Regulation as well as items "i" and "iii" of paragraph 3.0.3 hereof and item "i" of paragraph 3.0.4 hereof, as well as the form referred to in paragraph 2.1.14 hereof as having been signed by the Administrative Panel and delivered to the Provider by the A dministrative Panel, this proceeding is an arbitration to which the Regulation applies (as part of an arbitration agreement between the Parties, herein "the Arbitration Agreement") and the Administrative Panel's role in that arbitration is as a sole arbit rator. In view of that, as well as especially of the Contested Domain Name as set out in paragraph 1.2 hereof (i.e. a ".com") and of the respective locations of each of the Parties as set out in paragraph 1.1 hereof plus the fact of the Administrative Pan el's being located in Ontario Canada, the Arbitration Agreement is an international commercial arbitration agreement to which, inter alia, the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 (herein "the Act") and the version of the Model La w on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985 and set out in the Schedule to the Act (herein "the Model Law"), apply. (By sections 1(1) and 2(1) of the Act, the Model Law is, subject to the Act, in force in Ontario. By sections 1(1) and 2(2) of the Act, the Model Law applies to international commercial arbitration agreements.) In view of Article 28(3) of the Model Law, only to the extent that an arbitration tribunal is express ly authorized by the parties to be an arbitration tribunal which may decide ex aequo et bono or as amiable compositeur can that arbitration tribunal's powers include powers to decide other than in accordance with jural law i.e. to decide in a way that to that extent conflicts with or, as one might say, is to that extent outside jural law. (Those two expressions, ex aequo et bono and amiable compositeur, are substantially equivalent expressions from two different legal systems, respectively common-law syst ems and civil-law systems. [Analytical Commentary contained in the Report to the United Nations Commission on International Trade Law, 1985, paragraph 7 on Article 28. Recourse to either or both of that commentary and that report, herein "the Commentary" and "the Report", may by sections 13(b) and 13(a) of the Act "be had, in addition to aids to interpretation ordinarily available under the law of Ontario", "[f]or the purpose of interpreting the Model Law".] Ex aequo et bono means "out of what is good an d equal" and hence "in equity and good conscience" or "in justice and fairness" or "according to what is just and good" or "according to equity and conscience": Duklow and Nuse, The Dictionary of Canadian Law, Carswell, Toronto, 1991 and Black's Law Dicti onary, (5d), West Publishing Co., St. Paul, Minnesota, 1979, citing 3 Blackstone's Commentaries at 163; emphasis added. Amiable compositeur is a civil-law expression for an arbitrator having power to abate the strictness of the law in favour of natural e quity: Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979, regarding the clearly related term "amicable compounder" under Louisiana jural law; emphasis added.) In general then, (i) the limits of an arbitration tribunal's powers o f decision include the arbitration tribunal's powers that the parties to that arbitration create within jural law applicable to that arbitration; and (ii) the rules of the law of equity are part of jural law and are distinguished from mere equitable groun ds and from mere grounds of conscience. In this proceeding, the Administrative Panel has neither actually nor purportedly either claimed or used powers to decide either ex aequo et bono or as amiable compositeur.

5.0.2 Rather, and especially in view of paragraph 5.0.1 hereof, the Administrative Panel's approach to its role in this proceeding is, and has been throughout this proceeding, to endeavour to justly adjudicate the dispute (i.e. the issues of jural fact i n this proceeding and the issues of jural law in this proceeding), and to do so through and in accordance with the applicable jural law (i.e. the applicable procedural jural law and the applicable substantive jural law) and with, to the extent it does not conflict with the applicable jural law, the Arbitration Agreement; that approach accords with e.g. Rules 10(b), 10(a), 2(h)(3), 5(a)-5(b), 5(e), 14, 10(d), 12, 15(a) and 15(d), which Rules respectively accord with the following Articles from the Model La w: 18, 19(1), 24(3), 23(1), 25(b), 25(c), 19(2)[closing sentence], 23(2), 28 and 31(1)-(2)-(3). (According to the entries in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980) at 8 and 235 (i) "accordance" means "agreement" or "conformity"; (ii) "accord" means "to exhibit perfect fitness in a relationship or association" or "to adjust or fit harmoniously"; and (iii) "accord" and "conflict" are antonyms of one another. Accordingly, in using or construing the expression "in acco rdance with" herein, the Administrative Panel respectively means, or takes to mean, "without conflicting with".) The narrower sense of that role is that procedurally and substantively the adjudication be just, merely by being in accordance with the applic able jural law and with the Regulation. The broader sense of the role is to understand, and preferably to communicate to the Parties, that the adjudication is done within the systemic limits on any adjudicator's lawful conduct: to find and effect the bala nce prescribed by jural law between the two inherently opposed tendencies of which justice consists i.e. the tendency toward the formal realizability of justice through jural law and the tendency toward the substantive realizability of justice through jur al law. (As justice and jural law are not identically synonymous with, or limited to, one another, so too, as used herein, the expressions "procedural jural law" and "formal realizability of justice" are not identically synonymous with one another or limi ted to one another; nor, as used herein, are the expressions "substantive jural law" and "substantive realizability of justice" identically synonymous with one another or limited to one another. Rather, all jural law and all adjudications in accordance wi th jural law inherently effect and balance, in both procedural and substantive respects, tendencies towards formal realizability of justice and tendencies toward substantive realizability of justice; those two tendencies are inherently opposed to one anot her and neither tendency necessarily effects completely just results on its own. Formal realizability of justice tends toward rule stability [i.e. not altering rules of jural law], rule certainty [i.e. clarifying rules of jural law] and rule predictabilit y [i.e. accurately predicting the results of applying rules of jural law]. Substantive realizability of justice tends toward flexibility and fairness in decisions in the individual cases [i.e. expanding, contracting or maintaining privileges or immunitie s, and thereby assigning no remediable harm]. See, for example, J.M. Balkin, "The Crystalline Structure of Legal Thought" (1986) 39 Rutgers Law Review 1 at 43 to 45 and "The Hohfeldian Approach to Law and Semiotics" (1990) 44 University of Miami Law Revie w 1119 at 1131.) In this proceeding: the Complainant is, largely, urging solely formal realizability of justice; and the Respondent is, largely, urging solely substantive realizability of justice. They are, in that sense and to that extent, polarized. Th e Administrative Panel is not necessarily required by jural law to subscribe solely to either, or to any one, of those polarized positions either in whole or in part, whether as to jural facts or jural law or jural relations; rather, the Administrative Pa nel is required by jural law to adjudicate the dispute in accordance with the jural law applicable in and to this proceeding.

5.0.3 Jural laws that can be applicable in and to this proceeding are of four types, in a hierarchy from lowest to highest as follows: (i) rules of the common law e.g. as to contracts and as to trade marks; (ii) rules of the law of equity e.g. that, to the extent of a conflict between a rule of the law of equity and a rule of commo n law, the rule of the law of equity prevails; (iii) rules of enacted law e.g. as to international commercial arbitration agreements and arbitrations thereunder, as to interpreting legislation, as to evidence, as to conflict between a rule of the law of e quity and a rule of the common law or between either of those types of rules and an enacted rule, and as to applications for trade mark registrations; and (iv) rules, from whatever source, of constitutional law e.g. as to federalism grounds for the power to create legislation. [See e.g. Wesley N. Hohfeld, "The Relations Between Equity and Law" (1913) 11 Michigan Law Review 537, particularly, at 546, "Part I" and, at 558, the diagram, both the 546 and 558 passages being entitled "The Position of Equity in" , as contrasted with "The Position of Equity in relation to", "the Legal System". As well, see e.g. in Weber v. Ontario Hydro [1995] 2 S.C.R. 929 the discussion on arbitration tribunals having powers to deal with Charter of Rights jural interests in the context of, rather than being limited to, jural relations under a collective agreement under section 45(1) of Ontario's Labour Relations Act.]

5.0.4 The Administrative Panel's concepts and terminology herein regarding jural facts, jural laws and jural relations is largely based on Wesley N. Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913-14) 23 Yale L.J. 16 and (1916-17) 26 Yale L.J. 710, "The Conflict of Equity and Law" (1916-17) 26 Yale L.J. 767 and "The Relations Between Equity and Law" (1913) Mich. L.Rev. 537 and on Arthur L. Corbin, "Legal Analysis and Terminology" (1919) 29 Yale L.J. 163 and "Jural Rel ations and Their Classification" (1920-21) 30 Yale L.J. 226. A fifteen point summary thereof suffices herein: (i) jural laws are rules, made by persons who have jural powers to make law and which are enforceable through a nation-state or subdivision of a nation-state, about (a) what facts are jural facts, (b) what jural facts are evidential of other jural facts and (c) what jural facts are dispositive of jural relations; (ii) jural relations result from jural laws applying to dispositive jural facts; (ii i) jural relations generally are combinations of fundamental jural relations; (iv) fundamental jural relations are always pairings of fundamental jural elements with their respective correlatives and with their respective opposites- each element, correlat ive and opposite may be referred to as a jural interest and a combination of them may be referred to as jural interests; (v) the fundamental jural elements are right, privilege, power and immunity; (vi) corresponding to each of those fundamental jural ele ments are the respective correlative jural elements i.e. duty (correlative of right), no-right (correlative of privilege), liability (correlative of power) and disability (correlative of immunity); (vii) each fundamental jural element is bounded by its mu tually exclusive opposite jural element i.e. no-right (opposite of right), duty (opposite of privilege), disability (opposite of power) and liability (opposite of immunity); (viii) a right is one person's affirmative claim against another person to have t hat other person do something or not do something; (ix) a power is one person's affirmative control over creating or ending or maintaining a legal relation as against another person; (x) a privilege is one person's freedom from the right of another person ; (xi) an immunity is one person's freedom from the power of another person; (xii) to the extent that a privilege negates a right, the person that would otherwise have the right has a no-right and the person who has the privilege does not have a duty; (xi ii) to the extent that a privilege does not negate a right, the person that has the privilege still has a duty; (xiv) to the extent that an immunity negates a power, the person that would otherwise have the power has a disability and the person that has t he immunity does not have a liability; and (xv) to the extent that an immunity does not negate a power, the person that has the immunity still has a liability. The names of the fundamental jural elements, correlative jural elements and opposite jural elem ents are from the generally consistent use of those names by legislators and adjudicators; the terminology is not merely for finding or applying names, however, since the names per se are less important than the functions, and relationships, of the elemen ts. As well, that fifteen-point summary points up that what constitutes a jural interest "is not defined by the nature of things. Rather, the 'nature of things' in a legal sense is defined by the mutually self-defined relations of legal ideas." [J.M. Bal kin, "The Hohfeldian Approach to Law and Semiotics" (1990) 44 University of Miami Law Review 1119 at 1123; emphasis added.] However, and in contrast to the Administrative Panel's usage herein, words such as "rights", "duties", and "obligation" are sometim es used in many ways, including that for example even learned legislators and adjudicators sometimes erroneously, or at least confusingly, use the words (i) "right" to denote not only one person's affirmative claim against another person to have that othe r person do something or not do something, but also to denote privilege, or to denote power or immunity; (ii) "duty" to denote not only the correlative of right but also to denote liability; and (iii) "obligation" to denote either or both of "duty" and "l iability". [See accounts of examples of such confusing or erroneous usage by other than the Administrative Panel in e.g. Wesley N. Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913-14) 23 Yale L.J. 16 and (1916-17) 26 Y ale L.J. 710 and Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979, entries at 1189 - 1190 on "right", 453 on "duty" and 968 - 970 on "obligation".] Herein, except by using the word "right" as a locational indicator (e.g. to dis tinguish between the left-hand side of an object and the right-hand side of an object in descriptions of the contents of the annexes), all text authored by the Administrative Panel (as contrasted with text quoted by the Administrative Panel) is in accorda nce with the fifteen point summary set out in this paragraph.

(1) PROCEDURAL MATTERS REGARDING EVENTS THAT OCCURRED ON OR BEFORE 8 JANUARY 2001

5.1.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.1.1 through 2.1.17 hereof. The sense in which the Administrative Panel adopts that information is of finding (i) as jural fact the matters of fact therein; (ii) as jural law the matters of jural law therein; and (iii) as jural relations the matters of jural relations therein.

5.1.2 In view of, but not limited to, paragraph 5.1.1 hereof, the Administrative Panel adopts, absolutely, all of the information set out in item "ii" of paragraph 4.0.1 hereof and in paragraphs 4.1.1 through 4.1.10 hereof. The sense in which in this se gment the Administrative Panel adopts that information is of finding that the Complainant's substantive contentions have been made by submitting a complaint in accordance with the Regulation, though not necessarily that any the Complainant's substantive c ontentions are true. More particularly, the Administrative Panel finds that as part of submitting such a complaint (i.e. the Complaint) the Complainant has made the substantive contentions set out in paragraphs 4.1.5, 4.1.6, 4.1.7, 4.1.8 and 4.1.9 hereof .

5.1.3 Particularly in view of paragraphs 5.1.1 and 5.1.2 hereof, the Administrative Panel finds that, in respect of the Contested Domain Name, the Complainant has asserted to the Provider, in compliance with the Regulation, that (i) the Respondent's dom ain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the domain name; and (iii) the Respondent's domain name has been r egistered and is being used in bad faith.

5.1.4 The Administrative Panel finds that the paragraph 5.1.3 items "(i)", "(ii)" and "(iii)" hereof respectively correspond to Policy section 4(a)'s elements "(i)", "(ii)" and "(iii)" as read in view of the set of three notes preambulatory of the Policy (herein "the Notes").

5.1.5 By the preamble of Policy section 4 and the preamble of Policy section 4(a), both as read in view of the Notes, Policy section 4 "sets forth the type of disputes for which [the Respondent is] required to submit to a mandatory administrative proceeding" and which, in view of paragraph 5.1.4 hereof, "will be conducted before [ the Provider]".

(2) PROCEDURAL MATTERS REGARDING EVENTS THAT OCCURRED AFTER 8 JANUARY 2001 BUT BEFORE 18 JANUARY 2001

5.2.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.2.1, 2.2.3, 2.2.4 and 2.2.5 hereof. The sense in which the Administrative Panel adopts that information is of finding (i) as fact the matters of jural fact therein; (ii) as jural law the matters of jural law therein; and (iii) as jural relations the matters of jural relations therein.

5.2.2 The Administrative Panel adopts, absolutely, all of the information set out in paragraph 2.2.2 hereof. The sense in which in this segment the Administrative Panel adopts that information is of finding that the e-mailing quoted in that paragraph occ urred, though not necessarily that any of the Respondent's procedural contentions are true.

(3) PROCEDURAL MATTERS REGARDING EVENTS THAT OCCURRED ON OR AFTER 18 JANUARY 2001 BUT BEFORE 22 JANUARY 2001

5.3.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.3.2 and 2.3.3 hereof. The sense in which the Administrative Panel adopts that information is of finding (i) as fact the matters of jural fact therein; (ii) as jural law the matters of jural law therein; and (iii) as jural relations the matters of jural relations therein.

5.3.2 The Administrative Panel adopts, absolutely, all of the information set out in paragraph 2.3.1 hereof. The sense in which in this segment the Administrative Panel adopts that information is of finding that the e-mail attachment quoted in that paragraph occurred, though not necessarily that any of the Complainant's procedural cont entions are true.

5.3.3 The e-mail attachment quoted in paragraph 2.3.1 is expressly "Dated: January 18, 2001", even though in its preamble paragraph the deadline of 17 January 2001 is expressly referred to and even though received by the Provider on 16 January 2001. That the expressed date is later than the receipt date raises a question of cons truction of that document: (i)(a) did the Complainant intend that the e-mail attachment be received before the deadline but only take effect from the deadline or (b) rather, did the Complainant intend that it not even be considered to have been received u ntil 18 January 2001; and (ii) in either event, how if at all does Rule 2(f)(iii) apply? (By Rule 2(f)(iii), "Except as otherwise provided by these Rules, or decided by a Panel, all communications provided for under these Rules shall be deemed to have bee n made: … (iii) if via the Internet, on the date that the communication was transmitted, provided that the date of transmission is verifiable." That Rule is applicable as a result of the following: (i) the preamble of Article 3(1) of the Model Law creates a power of each of the Parties to agree with one another "otherwise" than that the rest of that Article would apply; and (ii) Rule 2(f)(iii) is part of the Arbitration Agreement and is such an agreement "otherwise".) The process of determining the meanin g to be given to words in a document (such as, respectively, each of that e-mail attachment and Rule 2(f)(iii)) is captured in the following question: Bearing in mind the relevant background, the purpose of the document, and considering the entirety of th e document, what would the parties to the document reasonably have understood the words to mean? [Eli Lily and Co. v. Novopharm Ltd. [1998] 2 S.C.R. 129 (S.C.C.) at 166-67, 161 D.L.R. (4th) 1 as applied in Toronto-Dominion Bank v. Leigh Instruments Ltd. (Trustee of) 45 O.R. (3d) 417 (Ont. C.A.) at 419h-420a.] Accordingly, the Administrative Panel finds that, in answering the question of construction of (i) the e-mail attachment, the preamble paragraph's reference to the date of the deadline makes "a" of this paragraph rather more likely than "b" of this paragraph; and (ii) Rule 2(f)(iii), the item "iii" deeming is a rebuttable presumption but there is neither a provision elsewhere in the Rules, nor (especially in view of the finding in "i" of this senten ce) a sufficient basis in this proceeding for the Administrative Panel to decide, to overturn that presumption. The Administrative Panel therefore finds that the means and effective date of that attachment were in accordance with the privilege (indicated by paragraphs 2.2.3 and 2.2.4 hereof as adopted through paragraph 5.2.1 hereof), which privilege the Administrative Panel created under Rule 12 for the Complainant.

5.3.4 The Administrative Panel finds that the preamble paragraph and "Background", and the part "I" and "Conclusion", quoted in paragraph 2.3.1 hereof at least arguably are in accordance with the privilege (indicated by paragraphs 2.2.3 and 2.2.4 hereof as adopted through paragraph 5.2.1 hereof), which under Rule 12 the Ad ministrative Panel created for the Complainant. (By Rule 12, "In addition to the complaint and the response, the Panel may request, in its sole discretion, further statements or documents from either of the Parties." The expression "sole discretion" in R ule 12 refers to powers; see e.g. the entries for "discretion", and related expressions, in Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979, at 419 and 420. Bases for the Administrative Panel to use those Rule 12 powers in tha t way, as well as to have first allowed submission of the Respondent's objection to being found in default by the Provider, include that (i) the Respondent had by e-mail promptly objected- i.e. on the same day- to being purportedly found in default of Sup plemental Rule 7(c)(iii)(4)(b)(i); and (ii) by Rules 10(a) and (b), "(a) The Panel shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules." and "(b) In all cases, the Panel shal l ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case.") However, the part "III" quoted in paragraph 2.3.1 hereof (it appearing that there is no part "II" and hence that "III" is a clerica l error for "II") instead responds to the Respondent's substantive contentions and therefore does not accord with that privilege; as a result, upon receipt of that part "III" the Administrative Panel excluded that part "III" from further consideration and continues to do so.

5.3.5 In view of paragraphs 5.2.1 through 5.3.4 hereof, the Administrative Panel finds that by the preamble paragraph and "Background", and the part "I" and "Conclusion", quoted in paragraph 2.3.1 hereof the Complainant could have put in issue the Respondent's procedural contentions in the e-mail quoted in paragraph 2.2.2 hereof . However, (i) the preamble paragraph and "Background" accord with, rather than conflict with, those procedural contentions of the Respondent, and so do not put them in issue; and (ii) part "I" (other than its last three paragraphs) and the "Conclusion" n ot only characterize the procedural contentions the Respondent made in the 4 January 2001 e-mail as being other than contentions concerning Supplemental Rule 7(c)(iii)(4)(b)(i) default (which other contentions they do not seem to be) but also mischaracter ize the aspects of the Regulation that do apply to those procedural contentions of the Respondent, and so are not within the privilege (indicated by paragraphs 2.2.3 and 2.2.4 hereof as adopted through paragraph 5.2.1 hereof) which under Rule 12 the Adm inistrative Panel created for the Complainant. As a result, only the last three paragraphs of part "I" put in issue the Respondent's procedural contentions in the e-mail quoted in paragraph 2.2.2 hereof, and even then there is the notable point that, in t he fifth sentence of the first paragraph of that part "I", the Complainant admits the 27 December 2000 mailing date.

5.3.6 If it is still necessary to resolve the issue stated in the last sentence of paragraph 5.3.5 hereof, the Administrative Panel finds it determines the issue in four parts: (i) whether an extension by the Provider was necessarily required for the Respondent to have avoided Supplemental Rule 7(c)(iii)(4)(b)(i) default by mailing with in 10 days of the 21 December e-mail; (ii) regardless of the answer to "i", whether the Provider's powers included powers to extend the time limit for receipt of the hard copy of the Response; (iii) if the answer to "ii" is "yes", then whether those power s were usable by the Provider by sending the 21 December 2000 e-mail; and (iv) if the answer to "iii" is "yes", then whether the Provider used them by sending that e-mail. To resolve each of the four parts of that issue, the Administrative Panel notes the test from Eli Lily and Co. v. Novopharm Ltd. [1998] 2 S.C.R. 129 (S.C.C.) at 166-67, 161 D.L.R. (4th) 1 as applied in Toronto-Dominion Bank v. Leigh Instruments Ltd. (Trustee of) 45 O.R. (3d) 417 (Ont. C.A.) at 419h-420a, stated above in paragraph 5.3.3 hereof: Bearing in mind the relevant background, the purpose of the document, and considering the entirety of the document, what would the parties to the document reasonably have understood the words to mean?

5.3.6.1 Applying the test so as to resolve the first part of the paragraph 5.3.6 issue, the answer is "no" i.e. an extension by the Provider was not necessarily required for the Respondent to have avoided Supplemental Rule 7(c)(iii)(4)(b)(i) default by mailing within 10 days of the 21 December e-mail. Bases for that answer inclu de Rule 2(f)(ii), Rule 2(f)(iii) and Rule 2(g) which respectively provide that "(f) Except as otherwise provided by these Rules, or decided by a Panel, all communications provided for under these Rules shall be deemed to have been made: … (ii) if by posta l or courier service, on the date marked on the receipt or (iii) if via the Internet, on the date that the communication was transmitted, provided that the date of transmission is verifiable." and "(g) Except as otherwise provided in these Rules, all time periods calculated under these Rules to begin when a communication is made shall begin to run on the earliest date that the communication is deemed to have been made in accordance with [Rule] 2(f)." (That Rule 2(f) and Rule 2(g) are applicable is a resul t of the following: (i) the preamble of Article 3(1) of the Model Law creates a power of each of the Parties to agree with one another "otherwise" than that the rest of that Article would apply; and (ii) Rules 2(f) and 2(g) are part of the Arbitration Agr eement and are such an agreement "otherwise". That they are such an agreement "otherwise" is especially pointed up by Article 3(1) of the Model law, which is part of Article 3. Article 3 is headed "Receipt of written communications" and provides in Articl e 3(1) that "(1) Unless otherwise agreed by the parties: (a) any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered to his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry a written communication is deemed to have been received if it is sent to the addressee's last-known place of business, habitual residence or mailing address by registered letter or any other me ans which provides a record of the attempt to deliver it; and (b) the communication is deemed to have been received on the day it is so delivered.") In this proceeding, the effect of those three Rules is as follows: (i) Rules 2(f)(iii) and 2(g) resulted i n the 21 December 2000 e-mail starting a 10 day period that ended at the end of 30 December 2000; and (ii) Rule 2(f)(ii) results in "the date marked on the receipt", if any, being the date that would (by the Rule 2(f) preamble) be when "[e]xcept as otherw ise provided in these Rules, or decided by a Panel" the "communication", if any, would as a communication "provided for under these Rules" be "deemed to have been made". When that conclusion is applied to (i) the fact that the Respondent (in the procedur al contentions quoted in paragraph 2.2.2 hereof) contended that it mailed the hard copies on 27 December; and (ii) the fact that the Complainant (in the procedural contentions quoted in paragraph 2.3.1 hereof) expressly refers to and implicitly admits tha t date of mailing; then (iii) the Administrative Panel need not have requested evidence of the mailing and instead the Administrative Panel was empowered, and still is empowered, to find that deeming mentioned in the preamble of Rule 2(f) to be rebutted. The Administrative Panel thereby decides that those procedural contentions establish the date of mailing as 27 December 2000. Moreover, if the Administrative Panel has erred in or leading up to the immediately preceding sentence, there are the answers to parts "ii", "iii" and "iv" of the paragraph 5.3.6 issue, as set out respectively through each of paragraphs 5.3.6.2, 5.3.6.3 and 5.3.6.4 hereof.

5.3.6.2 Applying the test so as to resolve the second part of the paragraph 5.3.6 issue, the answer is "yes". Bases for that answer include that by Supplemental Rule 3(a) "Unless otherwise stated, the time limits provided for in the present Regulation are mandatory." but that "The Secretariat or the [Administrative] Panel may at its own discretion, or at the request of a Party, extend any time limit if it considers such an extension necessary for it to be able to fulfill its duties adequately." and that by Supplemental Rule 2 "All complaints and administrative proceedings submit ted to the [Provider] shall be introduced and conducted in conformity with the Regulation. The [Provider], Parties, and [Administrative] Panel are bound by the Regulation." The Administrative Panel also finds four things. Firstly, in Supplemental Rule 3( a) the reference to "the Secretariat" is to the Clerk's Office of the Provider, and hence is a reference to the Provider. Secondly, in Supplemental Rule 3(a) the reference to "discretion" of the Provider is to powers of the Provider to extend any time lim it e.g. the time limit for receipt of the hard copy of the response; see e.g. the entries for "discretion", and related expressions, in Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979, at 419 and 420. Thirdly, use of such powe rs to make an extension might be by communication e.g. that expressly replaces one date by a later date or that expressly allows for the sending of a communication by a certain date (as contrasted with e.g. ensuring that the communication be received by a certain date); see for example the entry for "send" in each of Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980) at 1046 and Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979, at 1121 to 1122 (the latter of which accords with Webster's and provides that from U.C.C. s. 1-201(38) "send" as a "[t]erm in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed … The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of proper sending.") as contrasted with the entries for "receipt" and "receiv e" in Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979, at 1140). Fourthly, in view of Supplemental Rule 2, persons who have respective liabilities correlative to those powers include not only the Parties and the Administrative Panel but also the Provider; and that sort of result is not only not rare but accords with the second sentence of Supplemental Rule 2 and with jural relations regarding agreements generally. For example, in the process of creating a contract an offeror, by delivering an offer, uses a power to create (i) a liability of themselves to the offeree and (ii) correlative to that liability a power of the offeree (usable by accepting the offer) as to changing the offeror's jural relations. In providing that examp le, the Administrative Panel is not suggesting that the powers usable through sending the 21 December 2000 e-mail would necessarily amount to powers to create, or amend, a contract but rather is illustrating that a person (such as the Provider) can have p owers to alter their own jural relations e.g. to create disabilities of themselves against one or more persons in relation to whom those powers were used.

5.3.6.3 Applying the test so as to resolve the third part of the paragraph 5.3.6 issue, the answer is "yes". Bases for that answer include that by the preamble of Rule 2(b) "any written communication to Complainant or Respondent provided for under these Rules shall be made by the preferred means stated by the Complainant or Resp ondent respectively" and the contents of item "ii" in each paragraphs 3.0.3 and 3.0.4 hereof. (Rule 2(b) is applicable as a result of the following: (i) the preamble of Article 3(1) of the Model Law creates a power of each of the Parties to agree with one another "otherwise" than that the rest of that Article would apply; and (ii) Rule 2(b) is part of the Arbitration Agreement and is such an agreement "otherwise".) More particularly, the Administrative Panel finds three things. Firstly, the 21 December 20 01 e-mail was a written communication to the Respondent provided for under the Rules. Secondly, if in the text quoted in item "ii" of paragraphs 3.0.3 and 3.0.4 hereof the character "+" were read completely conjunctively (i.e. solely as a conjunctive "and ") then every communication would have to be communicated through both preferred means but the Administrative Panel finds that such across-the-board duplication would be unreasonable (e.g. excessive) and that the parties to that document would therefore n ot have reasonably understood the "+" to mean a conjunctive "and"; moreover, and in accordance with that finding, such across-the-board duplication apparently does not occur and its not occurring apparently does not in general draw objections from parties . Thirdly, the parties to the document would have reasonably understood the "+" to mean a disjunctive "and" (at least in the sense of meaning that e-mail suffices though not necessarily that e-mail is necessary). The two immediately preceding sentences ac cord with one another as well as with the entry for "and" in Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979, at 79.

5.3.6.4 Applying the test so as to resolve the fourth part of the paragraph 5.3.6 issue, the answer is "yes". Bases for that answer include paragraphs 5.3.6.2 and 5.3.6.3 hereof, which may in that regard be summarized as, and as applying, four points. Firstly, depending on the types of powers, a person can have them whether or no t that person knows they have them. Secondly, depending on the types of powers, a person can use them whether or not that person knows they are using them and whether or not that person communicates that they are being used. (In that regard, a difference between Supplemental Rule 3(a), quoted in paragraph 5.3.6.2 hereof, and Supplemental Rule 3(b), which abuts disabilities to a panel's Supplemental Rule 3(a) powers, should be noted: both the Provider and panels are expressly mentioned in, and have powers by, Supplemental Rule 3(a), whereas only panels are mentioned in Supplemental Rule 3(b); result: the Provider does not have those Rule 3(b) disabilities. Particularly in connection therewith, but not limited thereto, the Administrative Panel takes this op portunity to point out that in this proceeding the Administrative Panel has (i) not purported to extend any deadline that has already passed; and (ii) complied with Supplemental Rule 3(b) as part of actually effecting every deadline extension purportedly effected by the Administrative Panel, as indicated by paragraphs 5.4.1 and 5.9.3 hereof.) Thirdly, the Provider's powers and uses of those powers, set out in paragraphs 5.3.6.2 and 5.3.6.3 hereof, were the types of powers, and the types of uses of power, referred to in the third and fourth sentences of this paragraph. (Discerning a power, enunciating a power and using a power- even a power that is denoted "discretion"- are such that discernment and enunciation may well involve discerning the power, and th erefore probably discerning the limits of the power, but neither discernment nor enunciation is necessary to using the power; see not only the entries for "discretion", and related expressions, in Black's Law Dictionary, (5d), West Publishing Co., St. Pau l, Minnesota, 1979, at 419 and 420 but also the entries in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980) for "discernment", "enunciation" and "discretion" and each of their related expressions at 322, 378 and 324.) Fourth ly, by sending the 21 December 2001 e-mail, the Provider created disabilities of themselves, and of the Complainant, against the Respondent as to the Provider reaching or expressing the opinion (or at least expressing it so as to have the jurally binding effect contended by the Complainant and expressed by the Provider) set out in item "i" of paragraph 2.1.12 hereof to the Parties on 4 January 2001 i.e. the opinion that (because the communication was physically received by the Provider on 4 January 2001 r ather than within 10 days of 21 December 2000) the Respondent was necessarily in default (i.e. of Supplemental Rule 7(c)(iii)(4)(b)(i)).

5.3.6.5 In summary then, (i) the Respondent's procedural contentions include, in effect, that it filed within the Supplemental Rule 7(c)(iii)(4)(b)(i) deadline, whether or not extended, by mailing on 27 December 2000; (ii) the Complainant's procedural c ontentions include, in effect, taking issue with those procedural contentions of the Respondent, but admitting the 27 December date of mailing by the Respondent; (iii) the Respondent is therefore not to be presumed to be in default of Supplemental Rule 7 (c)(iii)(4)(b)(i); (iv) the consequences of Supplemental Rule 7(c)(iii)(4)(b)(ii) do not necessarily follow, at least not merely from those of the Parties' procedural contentions; and (v) rather, what is to follow, if the Administrative Panel has erred as to finding the admission referred to in item "ii" of this paragraph, is what is set out in the fourth of the four paragraphs quoted in paragraph 2.4.1 hereof as to evidence and response thereto regarding what is in issue from the Parties' procedural cont entions.

(4) PROCEDURAL MATTERS REGARDING EVENTS THAT OCCURRED ON OR AFTER 22 JANUARY 2001 BUT BEFORE 29 JANUARY 2001

5.4.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.4.1 and 2.4.2 hereof. The sense in which the Administrative Panel adopts that information is of finding (i) as fact the matters of jural fact therein; (ii) as jural law the matters of jural law therein; and (iii) as jural relations the matters of jural relations therein. More particularly, especially in view of the procedural aspects of this proceeding, as to the third of the four paragraphs quoted in paragr aph 2.4.1 hereof the Administrative Panel especially intended, and finds, two things. Firstly, that in accordance with the entries in Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979 (for "circumstances" at 220 and "case" at 1 95 to 196, i.e. that a case is but an example of circumstances), the expression "exceptional circumstances" refers to circumstances within the meaning of the expression "exceptional circumstances" in Rule 15(b) (which provides "That in the absence of exce ptional circumstances, the Panel shall forward its decision on the complaint to the Provider within fourteen (14) days of its appointment pursuant to [Rule] 6.") and within the meaning of the expression "exceptional cases" in the second sentence of Rule 1 0(c) (which provides that "[The Panel] may, at the request of a Party or on its own motion, extend, in exceptional cases, a period of time fixed by these Rules or by the Panel."). Secondly, that the expression "considers a two week extension of that deadl ine necessary for the Administrative Panel to be able to fulfill its duties adequately" refers to the Administrative Panel's so considering within the meaning of the second sentence of Supplemental Rule 3(a). Also more particularly, in view of that same t hird quoted paragraph of paragraph 2.4.1 hereof, together with paragraph 2.4.2 hereof, the deadline of 22 January 2001 for the Administrative Panel to communicate its decision on the complaint to the Clerk's Office of eResolution was extended to the end o f calendar day 5 February 2001. (Like rationales, as to those expressions in Rule 15(b), Rule 10(c) and Supplemental Rule 3(a), also apply to the subsequent extensions of the decision-forwarding deadline to 16 February 2001 and then to 19 February 2001.)

9.7.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraph 2.4.3 hereof. The sense in which in this segment the Administrative Panel adopts that information is of finding that the faxing by the Respondent, and the e-mailing and web site posting by the Provider, referred to in paragraph 2.4.3 occu rred as set out therein, though not necessarily that any of the contents of the fax are true.

(5) PROCEDURAL MATTERS REGARDING EVENTS THAT OCCURRED ON OR AFTER 29 JANUARY 2001 BUT BEFORE 2 FEBRUARY 2001

5.5.0 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.5.1 through 2.5.7 hereof. The sense in which the Administrative Panel adopts that information is of finding (i) as fact the matters of jural fact therein; ( ii) as jural law the matters of jural law therein; and (iii) as jural relations the matters of jural relations therein.

(6) PROCEDURAL MATTERS REGARDING EVENTS THAT OCCURRED ON OR AFTER 2 FEBRUARY 2001 BUT BEFORE 12 FEBRUARY 2001

Overview

5.6.0.1 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.6.1, 2.6.2 and 2.6.3 hereof and paragraphs 2.6.7 through 2.6.10 hereof. The sense in which the Administrative Panel adopts that information is of finding (i) as fact the matters of jural fact therein; (ii) as jural law the matters of jural law therein; and (iii) as jural relations the matters of jural relations therein.

5.6.0.2 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.6.4, 2.6.6 (second half) and 2.6.11 (Annex C12) hereof. The sense in which in this segment the Administrative Panel adopts that information is of finding that the procedural contentions of the Complainant set out therein occurred, thou gh not necessarily that any of those contentions are (i) true or (ii) receivable by the Administrative Panel.

5.6.0.3 The Administrative Panel adopts, absolutely, all of the information set out in paragraphs 2.6.5 and 2.6.6 (first half). The sense in which in this segment the Administrative Panel adopts that information is of finding that the procedural contentions of the Respondent set out therein occurred, though not necessarily that any o f those contentions are true.

5.6.0.4 In view of paragraphs 5.6.1, 5.6.2 and 5.6.3 hereof, the Administrative Panel finds that what appears to be in issue between the Parties on those matters is the receivability and reliability of evidence of the Respondent's asserted 27 December 2 000 mailing.

Receivability

5.6.1.1 The actual effect of the Complainant's contention on this point would basically be this: if information is required by the Administrative Panel to be provided by the Respondent (whatever the form or substance of that information happens to be or happens to be required to be) by a first 48-hour deadline to the Provider, and to the Complainant, through a means (i.e. e-mail) and if instead it is provided approximately 7 hours before that deadline (i.e. late-afternoon at the Provider and mid-afternoo n at the Respondent) to the Provider through a different means (i.e. fax), which difference in means apparently makes no difference to the Complainant's potential usability of the information, and then, less than 12 hours after that first deadline (i.e. b y noon the next calendar day), knowledge of and accessibility to that information are respectively provided by the Provider to the Complainant through communication means previously specified by the Complainant as being the preferred means of communicatio ns to the Complainant (i.e. e-mail + on a specified website), and if, in any event, before objecting to the different means, the Complainant not only lets a deadline that might have ended 48 hours (i.e. two calendar days) after the first deadline go by bu t also waits approximately a further 156 hours (i.e. six and one-half calendar days) for a total of 204 hours (i.e. amounting to eight and one-half calendar days) after the first deadline (i.e. until approximately noon on the last regular working day befo re the information would ordinarily have been finally dealt with by the Administrative Panel in delivering a decision) and if the objection is, in effect, that the Complainant did not receive the information because the information was not, by the first d eadline, sent by the required means (and, implicit to that objection, the Complainant urges that the fact should be ignored that only 12 hours after the first deadline- 8 days before the objection, and still thirty-six hours before the second deadline- th e Complainant was by the Provider both by e-mail made aware the information was on the website and provided access, through that website, to that information) then, contends the Complainant, the information should not be received by the Administrative Pan el as evidence.

5.6.1.2 There are at least five factors individually or in combination as to whether the Complainant's contentions as to receivability prevail, two as to facts and three as to jural law; all five factors are all as at least to "exceptional circumstances" within the meaning of that expression in Rule 14(a). (Rule 14(a) provides "If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under these Rules or any request from the Panel, the Panel shall dra w such inferences therefrom as it considers appropriate." As set out below, there are no "exceptional circumstances" as to the Complainant's circumstances but there are as to the Respondent's circumstances.)

5.6.1.3 Firstly, the Provider's statement to the Parties, quoted in paragraph 2.4.2 hereof i.e. "Read the Panel's instructions carefully and send the required information to the Clerk's Office on the appointed dates.", warrants scrutiny. If the phrasing "send the required information" had instead been "send the information as required" then the word "required" would have modified, and in that sense emphasized, not only "information" but also the act of sending (i.e. the means by which it is sent); but th at was not the phrasing. The phrasing actually used was "send the required information" which modified and, in that sense, emphasized, solely the content of the information (i.e. the substance and to some extent the form) and largely de-emphasized the mea ns.

5.6.1.4 Secondly, it is conceivable the Respondent's faxing complied with Supplemental Rule 4(b) by being a communication by "electronic mail" at least in the sense that the expression "e-mail" is usually considered to be distinguished from other forms o f electronic telecommunication such as faxes and that faxes are written communications that amount to mail and are sent electronically. Even if the faxing did not comply, the Rule 4(b) entitlement is of the Provider, not the Complainant, and the Provider did not object or stay silent. Rather, by doing the 25 January 2001 e-mailing to the Parties and posting to the web site, the Provider promptly behaved in accordance with the duty set out in the following paragraph hereof.

5.6.1.5 Thirdly, Rule 2(h)(iii) provides that "Any communication by … (iii) a Party shall be copied to the other Party, the Panel and the Provider as the case may be." That Rule does not provide who is to do that copying but in any event that Rule accord s with the first sentence of Article 24(3), which provides that "All statements, documents or other information supplied to the arbitral tribunal shall be communicated to the other party." The Commentary provides at 146, as to the first sentence of what i s now Article 24(3), that "the arbitral tribunal (or [if there is] an administering institution [then that institution]) is under a duty either to ensure that a party sends a copy to the other party or itself to communicate the statement or document of on e party to the other party".

5.6.1.6 Fourthly, Article 4 of the Model Law, headed "Waiver of right to object" provides that "A party who knows of any provision of this Law from which the parties may derogate or any requirement under the arbitration agreement has not been complied wit h and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefore, within such period of time, shall be deemed to have waived his right to object." [Emphasis added.] That Article (as interpreted in accordance with the Commentary's paragraphs 1 through 6, and the Report's paragraphs 51 through 57, on Article 4 as it then read), together with the circumstances of this case, result in that Article applying against the C omplainant's contention on this matter such that the Complainant's contentions on this matter do not result in an issue between the Parties (whether as to receivability or reliability or otherwise).

5.6.1.7 Fifthly, the doctrine of de minimis non curat lex is to the effect that jural law "does not care for, or take notice of, very small or trifling matters" or "does not concern itself about trifles"; that doctrine applies against the Complainant's co ntention on this issue, if indeed the Administrative Panel has erred in paragraph 5.6.16 hereof and that there is an issue between the Parties on this matter: the three or four hours and the slightly different means of electronic telecommunication are bot h individually and collectively very small matters. (See e.g. the entries for "de minimis doctrine" and "de minimis non curat lex" in Black's Law Dictionary, (5d), West Publishing Co., St. Paul, Minnesota, 1979 at 388.)

5.6.1.8 The Administrative Panel finds the information set out in paragraph 2.4.3 hereof (Annex R35) is receivable, and (especially in view of paragraphs 5.6.1.5, 5.6.1.6 and 5.6.1.7) not taken issue with or at least is not overcome by contentions by the Complainant. Particularly if the Administrative Panel has erred in that regard, it turns to the effect of receiving the Complainant's contentions as to reliability.

Reliability

5.6.2.1 There is no indication in this proceeding, other than unproven assertions by the Complainant, that the jurat signatory (who appears to be an Alberta lawyer) was in so signing not functioning in at least one or her two apparent capacities indicated by either or both of the two pages of the affidavit (i.e. (i) commiss ioner for taking affidavits and (ii) notary public) all in accordance with the applicable provisions of at least one of e.g. the Commissioners for Oaths Act, R.S.A. 1980, c. C-19 and the Notaries Public Act, R.S.A. 1980, c. N-11. There is also no indicati on in this proceeding that the affidavit does not comply with the applicable provisions of Ontario evidence law, particularly the Evidence Act , R.S.O. 1990, c. E.23.

5.6.2.2 There is no indication in this proceeding, other than unproven assertions by the Complainant, that the information by the affiant is not signed by the affiant or is untrue. As for the Complainant referring to the receipt in particular, it is an exhibit to the main body of the affidavit, and together with that main bo dy provides sufficient particulars of the sort the Complainant contends are missing. The Administrative Panel finds the information set out in paragraph 2.4.3 hereof (Annex R35) is true.

Summary

5.6.3 The Administrative Panel finds that the information set out in paragraph 2.4.3 hereof (Annex R35) is both receivable and true. On at least that basis, (i) Rule 2(f)(ii) applies to the effect that the Respondent has proven that the Respondent submit ted the Response in time i.e. on the date of 27 December 2000 on the receipt; (ii) the Respondent was therefore not in default of Supplemental Rule 7(c)(iii)(4)(b)(i); and (iii) so, the consequences of Supplemental Rule 7(c)(iii)(4)(b)(ii) do not follow. (Supplemental Rule 7(c)(iii)(4)(b)(ii), provides that "If the Respondent does not file the second format within that delay of 10 calendar days, the administrative proceeding shall be conducted and decided on the basis of the complaint alone.") Accordingly , the Administrative Panel will proceed further, to decide the dispute based not only upon the Complaint but also upon the Response. However, the Administrative Panel shall first address procedural matters regarding events that occurred on or after 12 Feb ruary 2001.

(7) PROCEDURAL MATTERS REGARDING EVENTS THAT OCCURRED ON OR AFTER 12 FEBRUARY 2001

5.7.1 The Respondent's "wishes to submit additional information regarding a decision criteria on a recently decided case", which wishes are referred to in paragraph 2.7.1 hereof, are potentially subject particularly to (i) either or both of Rule 12 and Article 23(2) of the Model Law; and (ii) whether and to what extent Rule 12 in teracts, and accords, with such provisions of the Regulation as Rules 10(b), 10(a) and 10(c) and, corresponding to those provisions of Rule 10, such provisions of the Model Law as Articles 18, 19(1)-(2)[first sentence] and 23(2). (Rule 10 provides inter a lia that "(b) In all cases the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case.", "(a) The Panel shall conduct the administrative proceeding in such manner as it considers a ppropriate in accordance with the Policy and these Rules." and "(c) The Panel shall ensure that the administrative proceeding takes place with due expedition. It may, at the request of a Party, or on its own motion, extend, in exceptional cases a period o f time fixed by these Rules or by the Panel." Those Rule 10 provisions accord with Articles 18, 19(1) and 23(2) of the Model Law.) The state of this proceeding is also especially a factor.

5.7.2 Rule 12 provides that "In addition to the complaint and the response, the Panel may request, in its sole discretion, further statements or documents from either of the Parties." The potential submission referred to in paragraph 5.7.1 hereof could well be a further statement, or document, within the meaning of Rule 12 rather th an being a Rule 23(2) amendment or supplement of the Response; it might be both. The reference to "sole discretion" in Rule 12 is to powers; see e.g. the entries for "discretion", and related expressions, in Black's Law Dictionary, (5d), West Publishing C o., St. Paul, Minnesota, 1979, at 419 and 420. Whether and how the Administrative Panel uses those powers depends upon the interaction of that Rule with such things as all the other provisions of the Rules, and of the Model Law, referred to in paragraph 5 .7.1 hereof, as well as with the state of this proceeding.

5.7.3 Article 23(2) of the Model law provides that "Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it." The Commentary provides at 143, as to what is now Article 23(2), that (i) criteria for exercising the Article 23(2) "discretion" include "the extent and the reason for the delay in making the amendment (or supplement); and (ii) Article 23(2) is "non-mandatory. The parti es may, thus, derogate therefrom and provide that amendments are subject to specified limits." The potential submission referred to in paragraph 5.7.1 hereof could well be an amendment or supplement of the Response, within the meaning of Article 23(2), ra ther than being a Rule 12 further statement or document; it might be both. The "discretion" referred to in that passage from the Commentary is a power; see e.g. the entries for "discretion", and related expressions, in Black's Law Dictionary, (5d), West P ublishing Co., St. Paul, Minnesota, 1979, at 419 and 420. Whether and how the Administrative Panel uses that power depends upon the interaction of that Article with such things as the Commentary and all the provisions of the Rules, and of the Model Law, r eferred to in paragraph 5.7.1 hereof, as well as with the state of this proceeding.

5.7.4 Rule 12 accords with Article 23(2) in the sense of being something "otherwise agreed by the parties" (within the meaning of that expression in Article 24(3) of the Model Law) and in the sense of setting a specified limit i.e. the Administrative Pan el's "sole discretion" (within the meaning of that expression in Rule 12). There is, however, no indication in this proceeding that the Respondent's wishes referred to in paragraph 2.7.1 hereof are within the meaning of the expression "exceptional cases" as that expression appears in Rule 10(c). Moreover, for the Administrative Panel to comply with Rule 10(b) would require the Administrative Panel to create not only a privilege of the Respondent to act upon the paragraph 2.7.1 wishes by some deadline but also to create a privilege of the Complainant to respond thereto by some still further deadline. In view particularly of the findings in paragraphs 5.7.1 through 5.7.3 and in this paragraph, and especially in view of the state of this proceeding (e.g. ho w long it has gone over all and in each of its stages, the number and types and particulars of communications and deadlines that have already occurred), the Administrative Panel finds each Party has been treated with equality and given a fair opportunity to present its case. In accordance with all of the forgoing, the Administrative Panel (i) did not create the privileges of the Respondent to make the potential submission referred to in paragraph 2.7.1 hereof and of the Complaint to respond thereto; and ( ii) without limitation to item "i" of this sentence, by or through the e-mails set out in paragraphs 2.7.2 and 2.7.3 hereof used the Administrative Panel's powers accordingly.

(8) SUBSTANTIVE MATTERS

Overview

5.8.0 By Policy section 4(a), "In the administrative proceeding, the [C]omplainant must prove that each of these three elements are present": "(i) [the Respondent's] domain name is identical or confusingly similar to a trademark or service mark in which the [C]omplainant has rights; and (ii) [the Respondent] has no rights or legitimate interests in respect of the domain name; and (iii) [the Respondent's] domain name has been registered and is being used in bad faith."

Further Comments on Complainant's Substantive Contentions

5.8.1.1 The Complainant's contentions set out in paragraph 4.1.2 hereof are contradicted by the Complainant's contentions set out in the second and third sentences of the paragraph "1" quoted in paragraph 4.1.8 hereof.

5.8.1.2 The Complainant's contentions set out in the second sentence of the paragraph "1" quoted in paragraph 4.1.5 hereof (i.e. that "The name Tim Allen is also protected under the common law right of publicity.") are regarding matters which are not ame nable to being in issue between the Complainant and the Respondent in this proceeding, at least under Policy section 4(a)(i).

Respondent's Substantive Contentions & Evidence

5.8.2.1 By the contentions quoted in paragraphs 4.2.1, 4.2.4.4 (first quoted paragraph), 4.2.4.5 (item "i" under "4a") and 4.2.4.6 (first quoted paragraph) hereof, the Respondent has taken issue with the Complainant's contentions quoted in paragraph 4.1. 6 hereof.

5.8.2.2 By the contentions quoted in paragraphs 4.2.2, 4.2.4.1 (first apparent exception), 4.2.4.4 (second quoted paragraph), 4.2.4.5 (item "ii" under "4a" as well as all of the items under "4c") and 4.2.4.6 (second, third and seventh quoted paragraphs) hereof, the Respondent has taken issue with the Complainant's contentions quoted in paragraph 4.1.7 hereof.

5.8.2.3 By the contentions quoted in paragraph 4.2.4.1 (fourth apparent exception) hereof, the Respondent appears to have taken issue with the Complainant's contentions quoted in either or both of paragraphs 4.1.7 and 4.1.8 hereof.

5.8.2.4 By the contentions quoted in paragraphs 4.2.3, 4.2.4.1 (third apparent exception), 4.2.4.5 (item "iii" under "4a" as well as all of the items under "4b") and 4.2.4.6 (fourth, fifth, sixth and eighth quoted paragraphs) hereof, the Respondent has t aken issue with the Complainant's contentions quoted in paragraph 4.1.8 hereof.

5.8.2.5 By the contentions quoted in paragraph 4.2.7 hereof, the Respondent has purported to make contentions under "5b(i)" of the "UDRP", by which it appears the Respondent meant Rule 5(b)(i).

5.8.2.6 As for the two contentions quoted respectively in the second and third sentences of paragraph 4.2.5 hereof, the Administrative Panel agrees with the second sentence of the first contention and with the first sentence of the second contention but disagrees with the remainder of the two contentions. There is some inconsistency within and between those remainders. Those inconsistencies likewise have especially to do with two sets of similarities and differences regarding trade marks and domain names and which, in various ways, the Respondent, with all due respect, has erred pervasively in the substantive aspects this proceeding. (The similarities and differences are within and between aspects of the information that is in a trade mark or that is in a domain name: the information in a trade mark or in a domain name is (i) on the one hand, physical fact i.e. information per se and information that, in a physical sense, can be physically implemented to effect physical results whether e.g. respectively on people or on machines; and (ii) on the other hand, jural interest subject-matter i.e. subject-matter the use, and registration process, of which is subject to jural law and, regarding which, jural interests can be created or maintained or ended. There is a jurally significant difference between jural interests and the subject-matter to which the jural interests apply- the former are just that, jural interests, whereas the latter are simply facts, and the Administrative Panel has particularly chosen the word "simply" because it is the word with which the Administrative Panel particularly disagrees in the passage quoted, in paragraph 4.2.5 hereof, from the twenty-fourth page of Annex R2. For example, as land and buildings are the subject-matter to which the jural interests known as real estate apply, so too information is the subject-matter to which trade mark jural interests and domain name jural interests apply, albeit to different aspects of information. With a trade mark the subject-matter is the for m or substance of information that, through use, is associated in trade, or that, through an application for trade mark registration based upon the applicant's intent to use, is intended to be associated in trade, with a product (whether goods or services ) to distinguish that product from another product; with a domain name the subject-matter is the form of information that through registration is to be associated with a unique internet protocol number that serves as a routing address on the internet.) Fi rstly, in the passages quoted from the fifth and twenty-fourth pages of Annex R2 there are the words "signs", "identifiers", "messages", "locators" and "pointers", and the entries for those and related words in Webster's New Collegiate Dictionary, Thomas Allen & Son Limited, Toronto (1980) at 1071 to 1072, 563, 715, 669 and 880 respectively indicate the first three of those five words are basically in the realm of the semiotic whereas the fourth and fifth of those five words (i.e. "locator", and "pointer" , and related words) indicate that locators and pointers are not nearly as limited to the realm of the semiotic as are signs or identifiers or messages and that, rather, the words "locators" and "pointers" have substantially more of a connotation of physi cal implementation to effect physical results. Secondly, although often the information in an actually or potentially registered domain name itself is, like a book title or file name often is, a "semantically meaningful" pointer and may or may not have ex clusionary jural interests applicable to it (e.g. trade secrecy jural interests especially before disclosure of the information in the potential domain name, confidentiality jural interests after confidential disclosure of that information, and copyright if the criteria for copyright are met), the information in an actually registered domain name is never simply a "semantically meaningful" pointer any more than subject-matter to which a trade mark jural interest applies (e.g. a book title used, or intende d to be used, in trade to distinguish that book from other books and to which as a result trade mark jural interests apply, and, whether or not there is such use or intent, if the corresponding jural criteria are met, jural interests as to one or more of trade secrecy, confidentiality and copyright) is ever simply a "semantically meaningful" pointer; rather, a domain name registration is always to result in a unique physical locator to which exclusionary jural interests apply. At any given time it is phys ically possible for such things as two books, or two magazine articles, to have identical titles, although one or more of the people effecting that result as to one of those publication titles might well by doing so infringe jural interests regarding the other of those publication titles. In contrast (if the searching that is part of the DNS registration process does not fail), two domain names will not both exist at the same time and be identical to one another, if by "identical" one means that in each d omain name the form of the information is identical down to and including the same generic Top-Level Domain (gTLD: e.g. ".com", ".org", ".net") or country-code Top-Level Domain (ccTLD: e.g. ".ca", ".us"); if the search fails, such that two registrations o f the same domain name co-exist for two different IP numbers, then apparently the address resolution protocol would apply. However, it is physically possible, and permitted through the DNS registration process, for two domain names to be similar, if by "s imilar" one means either (i) within a gTLD or ccTLD, the form of the information is not identical, even if the substance of the information is identical; or (ii) between one gTLD or ccTLD, and another gTLD or ccTLD, the form or substance of the informatio n is identical other than as to the gTLD or ccTLD itself.

5.8.2.7 If factual aspects of the Administrative Panel's findings in paragraph 5.8.2.6 hereof needed any confirmation, or bolstering, by a submission from either of the Parties it may be found in Annex R3, and expressly in passages quoted from in the seco nd and third sentences of paragraph 4.2.6 hereof.

5.8.2.8 If jural interests aspects of the quoted passages from Annex R2 with which the Administrative Panel agreed in paragraph 5.8.2.6 hereof (i.e. at the twenty-fourth page of Annex R2 that "The Internet is a forum for discussion, commentary and informa tion exchange as well as commerce." and especially at the fifth page of Annex R2 that "As a form of public communication, the policies applied to disputes affect rights of free expression as well as intellectual property rights.") needed any confirmation, or bolstering, by a submission from either of the Parties, it may be found implicitly in a document such as Annex R3. But those jural interests aspects do not need such confirmation or bolstering, for any jural interest (e.g. a right, a liberty, a power or an immunity) is always bounded by its mutually exclusive opposite jural element: e.g. a trade mark right is always bounded by a trade mark no-right; and e.g. a privilege of free expression is always bounded by a duty against free expression. Trade mark rights are not, as the Respondent contends, unlimited or becoming unlimited. Nor does the Regulation either move towards making them so or make this proceeding one in which trade mark infringement per se is necessarily at issue.

Complainant's Evidence

5.8.3.1 The information referred to in paragraph 4.1.2 hereof is identical to the "Registrant" name and contact information contained in each of Annexes C6, C7, C9, C10, and C11, except as to the name of the topic (Annex C7) or individual (Annexes C6, C9, C10 and C11) that replaces the asterisk in the following expression: "* Club".

5.8.3.2 The information referred to in paragraph 4.1.3 hereof is identical to the "Technical Contact, Zone Contact" name and contact information contained in each of Annexes C6, C7, C9, C10 and C11.

5.8.3.3 The depiction of a pennant-like object, referred to in paragraph 3.1.8. hereof, appears to be a depiction of the Pontiac emblem, a trade mark of General Motors Corporation, which corporation, as is widely known, is either or both of a maker and se ller of automobiles such as Pontiac automobiles. That depiction, in combination with the other two banner components described in paragraph 3.1.8 hereof, causes the Administrative Panel to find that the banner referred to in paragraph 3.1.8 hereof is a b anner advertisement for Pontiac automobiles, for which advertisement in all likelihood the Respondent was, or was going to be, paid by the General Motors Corporation or its agents or affiliates. In any event, the Respondent admits, in to having had commer cial advertisements on its web site; the banner referred to in paragraph 3.1.8 hereof appears to be such an advertisement. The Administrative Panel further finds that such advertisements, and that advertisement in particular, makes the web site upon which the advertisements appeared (in response to typing in "timallen.com") a means through which a commercial use of the Contested Domain Name was made by the Respondent.

Policy Section 4(a)(i)

5.8.4.1 As of the date the Respondent commenced this proceeding, (i) the Respondent had, and apparently still has, rights in at least a common-law trade mark, "TIM ALLEN" for use in association in entertainment-themed services; and (ii) the Contested Doma in Name was, and still is, identical or confusingly similar to that trade mark. [

5.8.4.2 In view of paragraph 5.8.4.1 hereof, the Administrative Panel finds that element "(i)" of Policy section 4(a) is proved to be present.

Policy Section 4(a)(ii)

5.8.5.1 By Policy section 4(c), in respect of the Contested Domain Name, "Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [t he Respondent's] rights or legitimate interests to the domain name for purposes of [Policy section] 4(a)(ii): (i) before any notice to [the Respondent] of the dispute, [the Respondent's] use of, or demonstrable preparations to use, the domain name or a n ame corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the domain name, even if [the Respondent] has acqu ired no trademark or service mark rights; or (iii) [the Respondent is] making a legitimate non-commercial 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 is sue."

5.8.5.2 The Administrative Panel finds that no Policy section 4(c) circumstances are proved as existing as of the date the Respondent commenced this proceeding, but rather finds the opposite circumstances proved, and therefore does not find that it has been demonstrated that the Respondent has any rights or legitimate interests to the Contested Domain Name for the purposes of Policy section 4(a)(ii) but rather finds the Respondent does not have any "rights or legitimate interests" to the Contested Domai n Name within the meaning of that expression in Policy section 4(a)(ii).

5.8.5.3 In view of paragraphs 5.8.5.1 through 5.8.5.2 hereof, and particularly paragraph 5.8.5.2 hereof, the Administrative Panel finds that element "(ii)" of Policy section 4(a) is proved to be present.

Policy Section 4(a)(iii)

5.8.6.1 By Policy section 4(b), in respect of the Contested Domain Name, "For the purposes of [Policy section] 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the re gistration and use of a domain name in bad faith: (i) circumstances indicating that [the Respondent has] registered or [the Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the [C]omplainant who is the owner of the trademark or service mark or to a competitor of [the Complainant], for valuable consideration in excess of [the Respondent's] documented out-of-pocket costs directly related to the domain name; or (ii) [the Respondent has] 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 [the Respondent has] engaged in a pattern of such conduct; or (iii) [the Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Re spondent's] web site or other on-line location, by creating a likelihood of confusion with the [C]omplainant's mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent's] web site or location or of a product or service on [the Re spondent's] web site or location."

5.8.6.2 Paragraph 5.8.3.1 through 5.8.3.3 hereof indicate circumstances within Policy section 4(b)(ii); the Administrative Panel finds the Respondent's registration of the Contested Domain Name is part of "a pattern of conduct" within the meaning of that expression in Policy section 4(b)(ii). In view of the findings in this paragraph, and of the preamble of Policy section 4(b), the Administrative Panel therefore finds conclusive evidence that as of the date the Respondent commenced this proceeding of the registration and use of each of the Contested Domain Name in bad faith.

5.8.6.3 In view of paragraphs 5.8.6.1 and 5.8.6.2 hereof, the Administrative Panel finds that element "(iii)" of Policy section 4(a) is proved to be present.

Summary Of Substantive Basis For The Administrative Panel's Decision

5.8.7 In view of paragraphs 5.8.4.2, 5.8.5.3 and 5.8.6.3 hereof, the Administrative Panel finds that each of the three elements "(i)", "(ii)" and "(iii)" of Policy section 4(a) are proved to be present.

(9) SUMMARY, AND CONSEQUENCES, OF SEGMENTS "1", "2", "3", "4", "5", "6", "7" AND "8"

Bases For The Administrative Panel's Decision

5.9.1 There was an administrative proceeding conducted under the Policy and to which the Respondent was a party, wherein the following was found as a basis for the Administrative Panel to require the Registrar of the Contested Domain Names to effect the remedy sought in section 4(d) of the Complaint's form (set out in paragraph 4.1.9 hereof and adopted through paragraph 5.1.2 hereof): in view of paragraph 5.8.4 hereof, it has been proven that the three elements "(i)" "(ii)" and "(iii)" of Policy sectio n 4(a) are present.

The Administrative Panel's Making Its Decision

5.9.2 By Rule 15(d) "The Panel's decision shall be in writing, provide the reasons on which it is based, indicate the date on which it is rendered and identify the name(s) of the Panelist(s)." More particularly, (i) by Supplemental Rule 15(a) "The Decis ion of the panel shall be drafted on the appropriate form ..."; and (ii) by the Provider's forms, which include a form used to draft this decision, the decision is to be signed and include the "date and place of the decision".

The Administrative Panel's Communicating Its Decision

5.9.3 By Rule 15(b) "In the absence of exceptional circumstances, the Panel shall forward its decision on the complaint to the Provider within fourteen (14) days of its appointment pursuant to [Rule] 6." (More particularly, by Supplemental Rule 15(a) "The Decision of the panel shall be ... communicated to the Clerk's office.") A s indicated by paragraph 5.4.1 hereof, the 14th day referred to in Rule 15(b) was initially 22 January 2001 and was then successively 5 February 2001, 16 February 2001 and finally 19 February 2001.

6. Conclusions

6.1 By Policy section 4(i) and the Notes, in respect of the Contested Domain Name, "The remedies available to [the Complainant] pursuant to [this] proceeding before [the] Administrative Panel shall be limited to requiring the cancellation of [the Respo ndent's] domain name or the transfer of [the Respondent's] domain name registration to the [C]omplainant." Therefore, based on the reasons provided herein, and in view particularly of paragraphs 5.9.1 through 5.9.3 hereof, the Administrative Panel hereby makes and communicates its decision on the Complaint to the Clerk's office of the Provider, which decision is as follows: the Administrative Panel requires the Registrar for the Contested Domain Name to transfer, to the Complainant, the registration of t he Contested Domain Name.

7. Signature

7.1 In accordance with all of the above, this decision is signed this 18 February 2001 at Ottawa, Ontario, Canada by

(s) Rodney C. Kyle

Presiding Panelist