DECISION

Fidelity International Limited v. florida760

Claim Number: FA0310000203903

PARTIES

Complainant is Fidelity International Limited, Pembroke, Bermuda (“Complainant”) represented by Victoria Newbold, of Lovells, Atlantic House, Holborn Viaduct, London, United Kingdom EC1A 2FG.  Respondent is florida760 (“Respondent”), 76 Richardson Dr., Aurora, Ontario, Canada L4G 1Z3.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <fidelity-international.biz>, registered with Domain Bank, Inc.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Jacques A. Léger,, Q.C., as Chair

Hon. Carolyn M. Johnson, as Panelist

David A. Einhorn, as Panelist

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on October 17, 2003; the Forum received a hard copy of the Complaint on October 23, 2003.

On October 24, 2003, Domain Bank, Inc. confirmed by e-mail to the Forum that the domain name <fidelity-international.biz> is registered with Domain Bank, Inc. and that the Respondent is the current registrant of the name.  Domain Bank, Inc. has verified that Respondent is bound by the Domain Bank, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On October 30, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 19, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@fidelity-international.biz by e-mail.

A Response was received by fax on November 19, 2003.

On December 1, 2003, pursuant to Complainant’s request to have the dispute decided by a three-member Panel, the Forum appointed Jacques A. Léger,, Q.C., as Chair,

Hon. Carolyn M. Johnson, as Panelist and David A. Einhorn, as Panelist.

The time for rendering the decision was extended for the purpose of clearing any potential conflict issues.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

            Factual Background

Complainant is one of the leading providers of financial services world-wide, offering investment management, retirement and shareholder services to over 15 million clients and customers.

In May 2003 Complainant discovered that Respondent had registered and was using the domain name <fidelity-international.biz>. Respondent, via that website, as it appears from a screen grab dated May 2, 2003, purported to be able to utilise “the vast resources of Fidelity Investments (the largest investment company in the world).”

On June 3, 2003, Complainant, through its parent company FMR Corp., sent a letter to Respondent pointing out Complainant’s trademark rights in the FIDELITY and FIDELITY INVESTMENTS marks. It requested certain written undertakings within seven days, including an undertaking to disable the domain name <fidelity-international.biz> and an undertaking to co-operate in the transfer of the domain name to Complainant.

Respondent did not comply with this request. However, on June 5, 2003, Complainant received a letter from Respondent acknowledging the “error” in its specific reference to Fidelity Investments on its website and confirming that the reference

had been removed, as it appears from a screen grab dated June 6, 2003. This letter contained alternative contact details for Respondent.

            Rights in the Mark

            Complainant holds the following trademark registrations:

FIDELITY (Switzerland, Reg. No. 420543, registered on 14^th  March, 1995, Class 36)

FIDELITY (U.K., Reg. No. 2100049, 13^th  May, 1996, Class 36)

FIDELITY (U.K., Reg. No 2179368, 12^th October, 1998, Class 16)

FMR Corp. is the parent company of the affiliated group of businesses operating in the United States and Canada collectively known as Fidelity Investments. FMR Corp.’s subsidiaries have various contractual arrangements with Complainant and its subsidiaries, to provide sub-advisory services with respect to the Fidelity Investments mutual funds and their foreign equivalents, as well as pension assets and other institutional investment accounts. FMR Corp. is the owner of numerous trademark registrations in the United States and Canada containing its famous FIDELITY mark, including the following:

FIDELITY (United States, Reg. No. 1,543,851, 13^th June, 1989, Class 36)

            FIDELITY (United States, Reg. No. 2,108,052, 28^th October, 1997, Class 16)

FIDELITY (Canada, Reg. No. TMA429,663, 24^th June, 1994, Class 36)

The FIDELITY trademark has been used in the United States by Complainant and/or FMR Corp. in connection with financial services since 1930 and has been in use in both Europe and Canada since 1973. The FIDELITY trademark has also been used in connection with online financial services since 1996. Complainant owns FIDELITY trademarks in numerous countries world-wide, including in Switzerland.

Complainant has registered many domain names incorporating the FIDELITY trademark, including, the <fidelityinternational.biz>, <fidelity-international.com> and <fidelity.ch> domain registrations.

            Identical or Confusingly Similar

By virtue of the quality, numerous years and widespread promotion of its services, the registered FIDELITY mark is famous, well known to and well regarded by the consuming public. It is distinctive of Complainant. The domain name <fidelity-international.biz> wholly incorporates the FIDELITY trademark and is essentially identical to Complainant’s principal website address <fidelity-international.com>.

Moreover, Respondent, at <fidelity-international.biz>, offers financial services. The website states that it “has been created to address the needs of the informed investor who has the ability and the resources to take advantage of individual investment opportunities as they arise in the market” and presents “investment advice and opportunities”. Respondent is using an identical mark to Complainant’s mark in respect of identical or very similar services to those offered by Complainant under the mark and in respect of which Complainant has registered trademark protection. Confusion is inevitable given that Complainant has a pre-existing, long-standing use of the FIDELITY mark in connection with financial services.

            Rights and Legitimate Interest

Respondent is not associated nor connected with Complainant in any way.  Complainant has never authorized or otherwise permitted Respondent to use any of its trademarks or to apply for or use any domain names incorporating Complainant’s trademark.

Respondent has no need or justification whatsoever to use the name FIDELITY within its domain name for its financial services website. The word “fidelity” is not a term, which is descriptive of financial services it is usually descriptive of faithfulness or loyalty, especially with respect to a marriage/loving relationship.

As used by Respondent, “fidelity” is clearly not being used in a descriptive manner but, rather, in a trademark sense to identify its financial services website. However, the FIDELITY name is distinctive of Complainant in relation to its financial services, including online financial services offered through Complainant’s various websites which use FIDELITY as the primary component of its domain names.

            Registration and Use in Bad faith

                        i) Registration

In FMR Corp. v Zuccarini, FA 113255 (Nat. Arb. Forum June 14, 2002), it was found that the registration and use of a domain name identical and/or confusingly similar to a complainant’s famous, registered trademark is in bad faith where the domain name registrant had actual and constructive knowledge of the complainant’s mark. A respondent will be deemed to have been on notice as to the existence of a famous mark at the time of registration and a respondent’s registration despite this deemed notice is evidence of bad faith.

Complainant’s trademarks are well known world-wide and Respondent must have been aware of its reputation when it registered the domain name. Furthermore, in the letter from Respondent to Complainant dated June 5, 2003, Respondent acknowledges “the familiarity and valuable goodwill” associated with Complainant’s trademarks. The letter goes on to state that Respondent instituted a NUANS name search and attempted to ensure its company logo “in no way resembled anything associated with” Complainant. It seems that Respondent was fully aware of Complainant and its marks and reputation prior to registering the domain name.

Accordingly, Respondent’s registration was in bad faith. By registering and using the domain name <fidelity-international.biz>, which is essentially identical to Complainant’s <fidelity-international.com> domain name, Respondent has intentionally attempted to attract for commercial and/or financial gain Internet users endeavouring to reach the <fidelity-international.com> website by creating a likelihood of confusion with Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.

                        ii) Use

Respondent’s website originally claimed it was able to utilise “the vast resources of Fidelity Investments (the largest investment company in the world)”. This was an obvious attempt to suggest that <fidelity-international.biz> is associated with, authorized or endorsed by Complainant in some way and to utilise Complainant’s goodwill and reputation. Subsequent to Complainant’s letter of June 3, 2003, Respondent removed the reference from its website.

In its letter of June 5, 2003, Respondent acknowledges that the statement infringed Complainant’s trademark rights but claimed that the site was put up by Deaddog Studios who were unaware of the infringement.  Respondent also claims that Deaddog Studios put the site on the net before Respondent had given its final approval.

It seems highly implausible that a reference to Fidelity Investments could have been made in error, not least because the company that commissioned the <fidelity-international.biz> website is clearly not “the largest investment company in the world”. This shows a definite intention to refer to Complainant. It is, in fact, quite possible that Deaddog Studios were under the mistaken impression that <fidelity-international.biz> was somehow connected to Complainant.

B. Respondent

In a letter transmitted by fax and received by the Forum on November 19, 2003, Respondent states that it cannot present a meaningful defence of its position other than what has already been stated in its letters of response to Complainant, dated June 5, July 8, and July 23, 2003. It also contends that it does not have the financial and legal resources to pursue this matter.

Respondent has therefore declared “No Contest”, and has stated that it will abide by whatever decision the National Arbitration Forum declares.

In addition, Respondent states that it has totally removed the site in dispute from the Internet, and has no intention of reinstating it at any time or place, now or in the future.

In a letter dated June 5, 2003, Respondent acknowledges the size and scope of FMR Corp. as well as the familiarity and valuable goodwill associated with the “FIDELITY and FIDELITY INVESTMENTS” names and trademark logos.

It further affirms that when accessing “Fidelity Investments” or “Fidelity International” on the Internet, of the thousands of sites that materialise, the majority of which are a part of Complainant’s corporation and/or associated companies, Respondent’s company does not appear. It is almost impossible to imagine any element of “confusion, mistake and/or deception” arising among consumers attempting to access “Fidelity Investments” or “Fidelity International” and <fidelity-international.biz>, which is what they must key in to be directed to Respondent’s website.

Furthermore, there are 164,163 sites on the Internet using the “famous FIDELITY mark”, one of which is Respondent’s. When Respondent incorporated its company in 2002, it instituted and paid for a NUANS name search both in North America and Europe, specifically for the purpose of avoiding any possibility of infringement on the rights and territory of any other entity. The same was done when it began the implementation of its website. As well, Respondent took pains to ensure its company logo in no way resembled anything associated with Complainant or any other company.

Respondent, however, acknowledges the error on the website of the specific reference made in the second paragraph to Fidelity Investments. Deaddog Studios, a company hired to create its website, was not aware of the infringement, and upon receipt of Complainant’s correspondence, as well as notification from Respondent, immediately rectified the situation. The website is only just in the beginning stages of construction, and this initial introduction to the company went on the net without final approval.

However, as stated above, Respondent contends it has removed any information or reference which could infer to the public that any association exists between its company and Fidelity Investments. As well, in the nature of co-operation and to show its goodwill, Respondent stated that it was willing to add a disclaimer on its site as to any association to or with Complainant’s organisation.

Respondent goes on to say that Complainant has made some very serious allegations in its correspondence, none of which are true or even realistic, since <fidelity-international.biz> is a duly registered domain name.

However, although the size and scope of Complainant’s company is impressive, it does not entitle it to make demands or issue orders, especially when there was absolutely no bad faith ever intended on Respondent’s part. Respondent has gone to considerable expense and spent a substantial amount of time to ensure it did nothing to encroach on the legal jurisdiction of any other enterprise.

And in a letter dated July 23, 2003, Respondent further contends that .biz and .com are two completely different “streets” in “Cybercity” … and that therefore there can be no confusion. In fact, it would be almost impossible to type .biz instead of .com, which is what would have to happen to access Respondent’s site. These domain names are as different as any two street addresses anywhere in the world.

Respondent has no search engines or any other means directing anyone to its site. One would have to specifically key in its address to reach it.

Unfortunately, the first presentation of the website contained inaccurate data which could have led one to believe there was an association between Fidelity International Development Inc. and Fidelity Investments. Immediately, upon it being brought to Respondent’s attention, it was removed, and as well, to show “good faith”, Respondent has removed “Fidelity International” from its logo.

Respondent’s website is intended to offer advice to investors, and to act as a “watchdog” for the private investor. Respondent has no intention or desire to solicit investments, and does not want to “ride on the back of [the Complainant’s] good name”.

Respondent contends that it chose the name “Fidelity” because of what the word means: “Remaining firm in your beliefs, friendship, or loyalty to another person”. It chose “International” for its global implications. Neither word was chosen for its association with Complainant’s enterprise.

Respondent refused to immediately transfer the domain name, as it disagreed with Complainant as a matter of law that Complainant had the right to force it to give up <fidelity-international.biz>, since the Uniform Dispute Resolution Policy (UDRP) clearly states that most types of trademark-based domain-name disputes must be resolved by agreement, court action or arbitration, before a Registrar will cancel, suspend or transfer a domain name.

Finally, considerable time, money and effort have been expended in establishing its website. To give up everything and start over will be an unacceptable and financially impossible task.

DISCUSSION & FINDINGS

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

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

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

(3) the domain name has been registered and is being used in bad faith.

Preliminary Finding on the Admissibility of the Response

Respondent failed to submit an electronic copy of its Response to the Forum.  Therefore, stricto sensu, Respondent did not comply with ICANN Rule par. 5 which reads as follows:

           

            «The Response

(a)      Within twenty (20) days of the date of commencement of the administrative proceeding the Respondent shall submit a response to the Provider.

(b)  The response shall be submitted in hard copy and (except to the extent not available for annexes) in electronic form …»

Furthermore, Respondent has failed to comply with ICANN Rule par. 5 (b)(viii) by not including language that certifies that all the information contained in the Response was to the best of Respondent’s knowledge complete and accurate. 

While the Panel was under no obligation to accept the deficient Response, the Panel nevertheless accepted it, considering it had been timely received by fax at the Forum on November 19, 2003, albeit not by e-mail as requested by the rules.

In addition, in the case at hand, the Panel is of the view that given the fact that the Response was no more than the letters which had already been sent to Complainant prior to the beginning of the proceedings, there was no need to offer Complainant to respond to it.

Moreover, in the only document which had not already been sent to Complainant, Respondent states that it believes that it could not present a meaningful defense of its position other than what was stated in its letters to Complainant.  Therefore, Respondent declares «No Contest» to the allegations of the Complaint and states that it has removed the domain name from the Internet and has no intention of reinstating the domain at any time or place, now or in the future.

All in all, the Panel accepts the Response as it has been sent, subject of course to its substantive value. See Strum v. Nordic Net Exch. AB, FA 102843 (Nat. Arb. Forum Feb. 21, 2002), wherein it was ruled that declaring a Response inadmissible because of formal deficiencies would be an extreme remedy not consistent with the basic principles of due process.

The Panel wishes to stress that it has carefully considered the Response (although technically late) but ultimately it did not have any impact on the merits.

Identical and/or Confusingly Similar

                        Complainant’s rights in the Mark

The Panel is of the view that Complainant has satisfactorily established rights in the FIDELITY mark through the mark’s registration in the United Kingdom on May 13, 1996 and October 12, 1998 (Reg. Nos. 2100049 and 2179368 respectively) and in Switzerland under Reg. No. 420543, registered March 14, 1995. The Panel adopts the findings in Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) wherein it was found that the Policy does not require that the mark be registered in the country in which Respondent operates.  It is sufficient that Complainant can demonstrate a mark in some jurisdiction.

Complainant has asserted that it has either directly or through contractual agreements used the FIDELITY mark in commerce since 1930 and has used the mark in both Europe and Canada since 1973.  Complainant has gone at great length about its parent company FMR Corp.’s registrations of the FIDELITY mark in the United-States and Canada. However, the Panel finds that the chain of title was not established and therefore, Complainant in this proceeding may not rely on these registrations. It should be noted that this finding is of slight consequence, as the Panel will further conduct its analysis based on the FIDELITY mark, as it is registered by Complainant itself.

            Identical or Confusingly similar

The Panel finds that the <fidelity-international.biz> domain name is confusingly similar to the FIDELITY mark owned by Complainant because the domain name fully incorporates the mark and merely adds the generic term “international” and generic top-level domain “.biz” to the mark. The Panel adopts the views expressed in Arthur Guinness Son & Co. (Dublin) Ltd.  v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) wherein confusing similarity was found where the domain name in dispute contained the identical mark of Complainant combined with a generic word or term, as well as in Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) wherein it was found that the top-level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar.

The Panel further finds that the domain name is nearly identical to Complainant’s <fidelity-international.com> domain name and will cause Internet user confusion because the website that the disputed domain name resolves to offers financial services similar to those offered by Complainant. On this particular matter, see Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) wherein it was found that the domain name <mannbrothers.com> was confusingly similar to Complainant’s MANN BROTHERS mark “so as to likely confuse Internet users who may believe they are doing business with Complainant or with an entity whose services are endorsed by, sponsored by, or affiliated with Complainant; hence, satisfying the confusing similarity requirement.”

While it could have been argued that the mark is comprised of a generic word, therefore precluding Complainant to enforce its trademark rights, the Panel is convinced that the mark FIDELITY has acquired a secondary meaning enabling Complainant to rely on the mark.

Rights or Legitimate Interests

As contented by Complainant, Respondent was not authorized or licensed to register or use domain names that incorporate the FIDELITY mark, and therefore Respondent lacks rights and legitimate interests in the <fidelity-international.biz> domain name. 

Moreover, since the Panel finds that Respondent is not commonly known by the <fidelity-international.biz> domain name or the FIDELITY mark, the Panel concludes that Respondent lacks rights and legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii).  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000), wherein it was found that no rights or legitimate interests existed where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question; see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) wherein it was found that no rights or legitimate interest existed where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name.

Furthermore, the Panel finds that Respondent is using a misleading domain name that infringes upon Complainant’s rights in the FIDELITY mark and such use is for commercial benefit, hence the Panel finds that Respondent lacks rights and legitimate interests in the domain name. The Panel relies on the findings in Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) wherein it was held that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services. See also G.D. Searle & Co. v. Mahoney, FA 112559 (Nat. Arb. Forum June 12, 2002) wherein it was found that Respondent’s use of the disputed domain name to solicit pharmaceutical orders without a license or authorization from Complainant does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i)).

Moreover, as decided above, Complainant’s FIDELITY mark, though comprised of a generic word, has acquired secondary meaning and therefore Respondent’s allegations as to its rights and legitimate interests in the <fidelity-international.biz> domain name, because of the generic character of the word, cannot be taken into account.

Registration and Use in Bad Faith

It is often quite difficult to actually show bad faith with concrete evidence.  While bad faith cannot be presumed, once Complainant has presented some evidence pointing in that direction, it is then incumbent upon Respondent to either respond or explain why its conduct should not be assimilated to bad faith. 

The Panel’s understanding of the Policy is that although the initial burden to prove Respondent’s bad faith in the registration or the use of the disputed domain name relies squarely on the shoulders of Complainant and once it has done so, as it did in the present case, it is then incumbent upon Respondent to either justify or explain its business conduct (if not to demonstrate the contrary).  Failure to do so will, in some circumstances, enable the Panel to draw negative inferences.

In the present case, the Panel finds that, since Complainant’s trade mark FIDELITY is registered in many countries, including Switzerland, it is very unlikely that when Respondent registered the domain names, it was not aware that it was infringing on Complainant’s trademark rights (see e.g. Expedia, Inc. v. European Travel Network, WIPO Case No. D2000‑0137 and Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000‑0003). Indeed, the Panel finds that Respondent registered the domain name in bad faith because Respondent had actual or constructive knowledge of Complainant’s mark due to the mark’s registration, the fact that the mark was used in commerce in several countries, including Respondent’s country of residence and that the <fidelity-international.biz> website referred to Fidelity Investments. On this particular matter, the Panel refers to Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) where it was stated that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”. See also Victoria's Secret v. Hardin, FA 96694 (Nat Arb. Forum Mar. 31, 2001) wherein it was found that, in light of the notoriety of Complainants' famous marks, Respondent had actual or constructive knowledge of the BODY BY VICTORIA marks at the time she registered the disputed domain name and such knowledge constituted bad faith.

Furthermore, the Panel is of the opinion that the domain names are so obviously connected with Complainant’s trademark that its very use by someone with no connection with Complainant suggests “opportunistic bad faith” (see Parfums Christian Dior v. Javier Garcia Quintas, WIPO Case No. D2000‑0226 and Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. Polygenix Group Co., WIPO Case No. D2000‑0163.

Moreover, the Panel finds that the evidence, as submitted by Complainant, tends to demonstrate that Respondent registered the domain name with the purpose of intentionally attempting to attract, for its own commercial benefit, Internet users to its website by creating a likelihood of confusion with Complainant’s trademark and by using the goodwill and positive reputation attached to Complainant’s FIDELITY trademark.  See Snapple Beverage Corp. v. Telmex Mgmt. Servs., WIPO Case No. D2002‑0114. In fact, the Panel finds that Respondent registered and used the <fidelity-international.biz> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) and (iv) because Respondent is attempting to commercially benefit via its misleading domain name by offering financial services similar to those offered by Complainant. The Panel adopts the views expressed in S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) wherein it was found that Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business. For illustrative purposes, see also Gen. Media Communications, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001) wherein bad faith was found where a competitor of Complainant registered and used a domain name confusingly similar to Complainant’s PENTHOUSE mark to host a pornographic web site.

The Panel notes that Respondent stated in one of its letters that it conducted a NUANS search in both North America and Europe to ensure that it was not infringing upon anyone’s trademark rights by registering the domain name. However, Respondent makes numerous admissions as to its prior knowledge of the famous FIDELITY mark and such a declaration is highly incompatible with an argument of good faith relying on a NUANS search. The Panel is not reasonably convinced that this search, given all the surrounding circumstances, is sufficient to establish Respondent’s good faith.

Lastly, the Panel cannot agree with Respondent when it contends that the company that it hired to develop its website, Deaddog Studios, mistakenly included a reference to Fidelity Investments within the website and, as soon as it came to Respondent’s attention, it was removed. The Panel finds that however much Respondent blames its conduct on its agent, Respondent is bound by the inappropriate conduct in registering a name using the protected mark of another, failing to show development or use that is bona fide and in acting in a manner about which bad faith can be alleged, since Respondent has the duty to review and approve the contents of its own website.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <fidelity-international.biz> domain name be TRANSFERRED from Respondent to Complainant.

Jacques A. Léger, Q.C., Chair
Dated: December 27, 2003

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