DECISION

Interlock Structures International, Inc. v. Interlocking Technologies c/o Jeremy Elliott

Claim Number: FA0403000243505

PARTIES

Complainant is Interlock Structures International, Inc. (“Complainant”), represented by Kevin J. Johnson of Interlock Structures International, Inc., 7316 Aspen Lane North, Suite 300, Minneapolis, MN 55428.  Respondent is Interlocking Technologies c/o Jeremy Elliott (“Respondent”), represented by Jesse D. Palmer of Interlocking Technologies c/o Jeremy Elliott, 1563 Solano Avenue, Suite 485, Berkeley, CA 94707.

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <interlock.com>, registered with Register.com.

PANEL

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

Fernando Triana, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on March 2, 2004; the Forum received a hard copy of the Complaint on March 4, 2004. The Forum after studying the Complaint considered that Complainant did not fulfill all the requirements of the ICANN’s Uniform Domain Names Dispute Resolution Policy (the “Policy”) and granted Complainant an additional term in order to amend such deficiencies. On March 12, 2004 the Forum received the Second Amended Complaint in accordance with the Policy.

On March 3, 2004, Register.com confirmed by e-mail to the Forum that the domain name <interlock.com> is registered with Register.com and that the Respondent is the current registrant of the name.

Register.com has verified that Respondent is bound by the Register.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with the Policy.

On March 11, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of March 31, 2004 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@interlock.com by e-mail.

A timely Response was received and determined to be complete on March 30, 2004.

A timely Additional Submission was received from Complainant and was determined to be complete on April 5, 2004.

Respondent filed an Additional Submission to the Response, which was received timely by the Forum on April 12, 2004.

On April 13, 2004, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Fernando Triana, Esq., as Panelist.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

Complainant stated to be the registered owner of the trademark INTERLOCK since August 23, 1998. The trademark has been used and related with the corporate purpose of Interlock Structures International Inc., i.e., with the manufacture of construction materials, namely metal trusses. A copy of the report given by the U.S. Patent and Trademark Office (USPTO), dated March 2, 2004, was attached to the Complaint.

Complainant alleges that ever since 1996 it has been monitoring the use of the domain name <interlock.com>, when first decided to register a domain, but found out that Interlocking Technologies already registered the domain on 1995.

Complainant declares that the fact that the domain name <interlock.com> belongs to a third party has caused great confusion and frustration, as Complainant’s business is known to the public as “INTERLOCK”.

Complainant asserts that the web page <interlock.com> lacks of any contact information of Respondent, even though it: “was presumably once based upon legitimate business use for Respondent.” It alleges that Respondent has ceased to use the website in any way related to its business since 2003.

Complainant further states that the website was being used for personal use by Jeremy Elliot, alleging that Mr. Elliot appears to be in the registrant’s WHOIS database as the technical representative of Interlocking Technologies. It is attached to the Complaint a printed copy of the web page <interlock.com> where there is a photo gallery, dated December 2, 2003.

On December 10, 2003 Complainant tried to contact Respondent in order to make an offer to purchase the rights of the domain name <interlock.com>. No response was obtained to said offer. Complainant states that he also tried to reach Mr. Elliot, through other means without any positive results. A copy of mentioned purchase offer, was also accompanied with the Complaint.

Furthermore, Complainant states that the content of Respondent’s web page has been completely removed. Complainant believes that the corporation Interlocking Technologies, has vanished and/or dissolved, as a result of a survey made in order to establish its domicile.

Complainant states that the contact information registered in “Register.com” pertaining Respondent is not reliable. The aforementioned taking into consideration that Complainant alleges to have been unable to make any contact with Respondent through the given information. Even more, Complainant verified this information, and in the mentioned investigation Complainant has been able to determine that Respondent does not appear to conduct business and/or to be registered in California nor in the other surveyed states, i.e., Georgia. Complainant believes that this fact constitutes an element of bad faith in the registration of the domain name by Respondent.

Complainant also argues that the contended domain name has been abandoned by Respondent Interlocking Technologies, and it is being wrongfully used by Mr. Jeremy Elliot.

Finally, the Complaint contends that Mr. Elliot’s usage of the domain name is illegitimate, due to the fact that he is making use of such domain name for personal purposes. Complainant states that the usage by a non-registered user should be considered a bad faith attempt to prohibit a legitimate user from obtaining the domain name. Moreover, Complainant considers that Mr. Elliot’s behavior is likely to be a form of “squatting”, as it is alleged that the domain name is being used by a non-registrant with no legitimate right to do so.

Based on the above Complainant requests the Panel to order the transfer of the conflicting domain name from Respondent to Complainant.

B. Respondent

Respondent alleges that the Complaint should be rejected on the basis that Mr. Jeremy Elliot d/b/a Interlocking Technologies has acted in bona fide in registering the domain name <interlock.com>.

Respondent alleges that it has been doing business under the fictitious name Interlocking Technologies since 1980. Respondent states that in August 1995, it registered the domain name <interlock.com>.

The conflicting domain name was chosen, after Respondent verified that other optional names related to his fictitious name where not available, i.e., “ILT”. Respondent asserts that due to the nature of the business offered by Jeremy Elliot d/b/a Interlocking Technologies, as a computer consultant specializing in database architecture and the design of database backed enterprise systems, he has made use of the domain name primarily for e-mail purposes, during the past 8 years as much of his business occurs through the web, using different addresses, i.e., <jelliot@interlock.com> and/ or <jeremy@interlock.com>.

Through his e-mails, Respondent handles solicitation of new business, contract negotiation, project communications with customers and billing. Respondent attaches to its Response two e-mails, one dated October 12, 1995 and the other from December 11, 2003 evidencing the use of the domain name by Respondent. It has to be noted that from the mentioned evidence only one of them correspond to one of the above cited e-mail addresses, whilst the other email was directed to: <bighairy.homo@interlock.com>.

Respondent contends that Complainant’s relief sought should be denied. It argues that Complainant fails to demonstrate the bad faith in the registration of the domain name. Thus, Respondent attaches proof of the legitimate use of the contended domain name.

 

Respondent states that Interlocking Technologies was first used by Mr. Jeremy Elliot when in company with Mr. Joel Sacks, who wrote and published the book: “The Advanced guide for the PET.” As a result of such work he filed the fictitious name Interlocking Technologies in accordance with the laws of Alameda County, State of California obtaining a business license from the City of Berkeley, also in California, for the mentioned business. A copy of the business license application for Interlocking Technologies from the City of Berkeley, as well as the renewal of the fictitious business name made before the Office of the Alameda’s County Clerk are attached to the Response.

Respondent further contends that he had no knowledge of Complainant’s business and/or existence at the time of the registration of the <interlock.com> domain name, and was only aware of its existence when receiving the purchase offer submitted by Complainant to buy the disputed domain name.

Thus, Respondent states that there is no evidence that Jeremy Elliot d/b/a Interlocking Technologies has ever intended to sell, rent or transfer the contended domain name. The absence of an answer to the purchase offer of Complainant has been alleged to prove Respondent’s bad faith. Respondent contests such affirmation, alleging that his business is neither to buy and/or register domain names, nor to resell them to third parties.

 

Respondent includes in its brief a special chapter in which it is intended to answer each of the allegations made in the Complaint. It is stated there how the domain name has been used in a legitimate way in Respondent’s business. The photo gallery exhibited by Complainant in order to prove the personal usage of Respondent’s website is stated to have been an experiment of Mr. Elliot’s business, and is the reason why the content cited and showed by Complainant no longer exists. According to Respondent, Interlocking Technologies is not registered as a corporation. However it has been in business continuously since 1980.

Consequently, Respondent requests that the remedy sought by Complainant be denied by the Panel.

C. Additional Submissions

Complainant

Timely, on April 5, 2004, Complainant filed an additional submission to the Complaint.

In its Additional Submission, Complainant alleges that <interlock.com> was the address for the web page of Interlocking Technologies, Inc., before 2003.

At the present time, Complainant alleges that Respondent’s business has been using the domain name <interlockingtech.com> and contends that it has held itself to the public as a corporation not as a person.

Complainant states that Respondent is the registrant of the domain name <interlockingtech.com>, implying that the domain name <interlock.com> was registered and used by the same owners, this is by Interlocking Technologies, Inc. These facts where not supported in any documentary evidence.

Taking the afore mentioned into account, Complainant alleges that Mr. Jeremy Elliot’s behavior is in bad faith, as the usage of the disputed domain name is for personal purposes considering that he is not the registrant of <interlock.com>, as the registrant is the corporation Interlocking Technologies, Inc.

Respondent

Respondent timely filed an Additional Submission to the Response before the Forum on April 12, 2004.

In its Additional Submission, Respondent replies to the assertions made by Complainant in its Additional Submission. It is alleged by Respondent that the affirmations made by Complainant are an attempt to confuse the Panel, taking into account that it is stated that what once was the content of the web page <interlock.com> appears to be the current content of the web page <interlockingtech.com>.

It is also stated by Respondent that Jeremy Elliot d/b/a Interlocking Technologies registered the domain name <interlock.com> and that it is unrelated to <interlockingtech.com>. Thus the similarity on the business name is only coincidental.

Respondent provides evidence to demonstrate that the registrants of the domain name <interlockingtech.com> are Ms. Eva Sager and Jon Sager of Interlocking Technologies, Inc, a corporation, located in the State of Georgia, according to the information provided by NETPLANET.NET.

Respondent alleges that Interlocking Technologies d/b/a Jeremy Elliot is completely unrelated and distinct from Interlocking Technologies, Inc., d/b/a Eva Sager and/or Jon Sager. It is merely a coincidence that both companies have similar names. Respondent has never been known to the public as a corporation. Respondent sets forth that Interlocking Technologies, Inc., operates in the State of Georgia being active in business, whilst Respondent is registered in the State of California.

Finally Respondent states that there is no bad faith in the registration and usage of the contended domain name.

FINDINGS AND DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Names 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.”

Likewise, Paragraph 10(d) of the Rules for Uniform Domain Name Dispute Resolution Policy, provides that: “[t] he Panel shall determine the admissibility, relevance, materiality and weight of the evidence.”

The Panel wants to make special emphasis to the evidence filed by the parties to prove their assertions, which has been thoroughly studied in order to determine its relevance and weight in arriving to a decision. The Panel wishes to clarify that the statements that have been accompanied by evidence have been given more importance than the mere statements made by the parties without further demonstration to its existence.

Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) 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.

Identical and/or Confusingly Similar

Complainant states that it registered the mark INTERLOCK before the U.S. Patent and Trademark Office (USPTO) on August 23, 1988 under the Certificate No. 1,500,961 to cover goods of International Class 6.

Notwithstanding Complainant exhibited a copy of status information of the trademark registration of INTERLOCK, the Panel searched the public database of the USPTO in order to verify the status of Complainant’s trademark registration, with the following result:

USPTO: On November 16, 1987, Complainant, under the name Interlock Structures International, Inc., filed for registration INTERLOCK as a word mark (File No. 73,695,748), to cover goods in International Class 6. The products sought to be covered by the mark were: “Construction materials, namely, metal trusses.” The word mark was registered on August 23, 1988 under the Registration Number 1,500,961. This mark is currently in force.

The Panel finds that the domain name <interlock.com> is identical and confusingly similar to the trademark registered by Complainant in the USPTO, INTERLOCK No. 1,500,961.

For the Panel’s consideration, the bearing of a gTLD or a ccTLD is not sufficient to give distinctiveness to a domain name or avoid it from being confusingly similar to a registered trademark. To use such endings in the domain name must not be considered when determining the similarity of a trademark and a disputed domain name. It has been established that these are given for functional services in order to be able to become a part of the World Wide Web.

Both, the gTLD and ccTLD are part of a domain name, but they do not give distinctive force to the same. In the referenced matter the contended domain name <interlock.com> of Respondent and the trademark INTERLOCK of Complainant are identical phonetically and visually.

This issue has been addressed deeply by previous Administrative Panels, such as in the case of Pomellato S.p.A v. Richard Tonetti[1]:

“Due to the specific nature of Internet domain names, however, whose input takes place by means of a keyboard the aural and conceptual aspects of a trademark far out weight the visual aspect.

“It also bears not[h]ing that the addition of the generic top-level (gTLD) “.com” after the name POMELLATO is not relevant, since the use of a gTLD is required, necessary and functional to indicate use of a name in the internet and for the average Internet user it would not confer any further distinctiveness to any name.”

This issue was also addressed previously by another Administrative Panel, in the case Rollerblade, Inc. v. Chris McCrday[2]:

“It is already well established  that the specific 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.”

This Panel agrees with the opinion established in the afore mentioned cases, noticing that distinctiveness is given when taking away the specific top level assigned, and it is evidenced that the name is not similar, nor phonetically and/or visually from a registered trademark.

After making the mentioned study, the Panel considers that the disputed domain name is identical to the registered trademark property of Complainant, in accordance with the requirements of Paragraph 4(a)(i) of the Policy.

Rights or Legitimate Interests

Paragraph 4(c) of the Policy, determines that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall demonstrate Respondent’s rights or legitimate interests to the domain name:

(i) Before any notice to Respondent of the dispute, it has used or made demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if he has acquired no trademark or service mark rights; or

(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Complainant alleges that the use of the disputed domain name <interlock.com> by Respondent is illegitimate, as the registrant Interlocking Technologies has abandoned the web page, and it is being used by Jeremy Elliot, who Complainant considers is not the registrant, but the technical contact. Notwithstanding these affirmations, Complainant recognizes the legitimate registration of the domain name by Respondent when asserting in the Complaint that: “this registration was presumably once based upon legitimate business use for Respondent.”

Respondent has thoroughly proven that Interlocking Technologies was constituted as a fictitious business, registered in the county of Alameda, California obtaining a resale license from the State of California. It has also been proven that Respondent obtained a business license from the City of Berkeley, State of California.

It was also demonstrated that the registration of the disputed domain name <interlock.com> occurred in August 1995. This was before Complainant considered registering the same domain name, as asserted on the Complaint, i.e. 1996.

Respondent evidenced that it has been using the domain name since its registration for commercializing and offering the services of his core business. Thus, it was primarily registered for the development of its business. During the past 8 years Respondent has made use of the domain name, as a mailing address. For the Panel, Respondent has proven that since the registration of its domain name there has been a bona fide offering of the services derived from its current business activities.

It is asserted by Complainant that the behavior of Respondent can be considered cyber-squatting, and states that the content of the web page <interlockingtech.com> has been used by the owners of the company Interlocking Technologies, Inc., as if Jeremy Elliot d/b/a Interlocking Technologies and the aforementioned company were the same.

Respondent carries out a business which has been proven to the Panel to be completely different from the one cited by Complainant in the Additional Submission to the Complaint, as Interlocking Technologies, Inc.

It has also been proven that Respondent registered the domain name <interlock.com> in August, 1995, in order to make legitimate use of the domain name, for his business and personal use, and that it has been continuously used since then.

Respondent registered the domain name bearing a name similar to his fictitious business name, though they where not identical. The similarity between the domain name and the fictitious business name is considered to be legitimate, as it has been evidenced by Respondent that initially it tried to register the domain name ILT, which was previously taken. This fact was verified by this Panel, in the database of the InterNIC-Whois.[3]

Additionally Respondent has given reasonable credible evidence for the reason that lead to the selection of the domain name <interlock.com>, which appears to be related to his fictitious business name.

The registration and use of a domain name similar to the registered fictitious name, pursuing to offer goods and services of its business has been evidenced by Respondent, legitimating the registration and use of such domain name.

 

It has been affirmed by Respondent that the registration of the domain name was made at a time when he had no knowledge of the existence of Complainant’s business, a fact that was left uncontested by Complainant. Furthermore, the fact that Complainant recognizes that at the time of registration by Respondent it was presumably based upon legitimate use, leaves with no grounds the claims made in the Complaint.

Respondent has asserted that even though the initial purpose of the registration of <interlock.com> was directed for Respondent’s business, for the past 8 years the use of the contended domain name has been for his business and/or his personal e-mail address.

It has been contended by Respondent the fact that Interlocking Technologies is the same as Jeremy Elliot. This fact was evidenced by Respondent, demonstrating that when registering the fictitious business name this was registered under both names. This gave the possibility of using either the fictitious business name or his own for doing business. Nevertheless, the destination given to the domain name can be determined by the proprietor of the registered domain name, being it possible to use it for personal use only.

The issue of a registered domain name for personal use and as an e-mail address has been discussed by other Administrative Panels. Particularly in this case Respondent has contended to have two e-mail addresses under <interlock.com>, for his e-mail. In the case Pueblo Int’l, Inc., v. Pueblo Tech. Publ’g[4], the Panel that studied the case addressed this issue and stated that:

“Complainant argues that the domain name has not been used by Respondent in connection with an offering of goods or services; that it has tried to communicate with Respondent by e-mail and facsimile, but there has been no response; that the Respondent is not listed on the Internet nor in the telephone directory, and thus there has been no commercial use of the domain for over two years.

“By virtue of Respondent’s registration of its domain name prior to Complainant’s registration of its service mark, and by Respondent’s utilization of the domain name as an e-mail address, although not as a web site, the Panelist has concluded that the Respondent does have a right and a legitimate interest in the domain name.”

In the case Aspen Grove, Inc. v. Aspen Grove[5], the Panel debated the legitimacy in using a domain name as an e-mail address, stating that:

“The Respondent points out that other Panels have found using a domain name as an e-mail address to be a legitimate right and interest in a domain name even though it is not specifically mentioned in the non-exhaustive examples of the Policy at 4 (c).

“The Panel agrees with the Respondent that using a domain name as an e-mail address, a use that began several years before the Complainant’s company even came into existence, is a legitimate right and interest under the Policy.”

This Panel agrees with the cited Panelists’ opinions, as it has been evidenced and accepted by Complainant that at the time of registering the domain name, Interlocking Technologies d/b/a Jeremy Elliot, was operating: “presumably once based upon legitimate business use for Respondent.” For the Panel the legitimate registration of the domain name, enables the registrant to use it also for his personal and/or commercial purposes.

The Policy requires a demonstration of the legitimate use of a domain name, according to Paragraph 4(c). It has to be proved that its use is directed to offer goods and services of the Registrant’s business. To the Panel’s consideration, Respondent thoroughly demonstrated that when he registered the domain name it was for business purposes, and that he is the person behind the business named as Interlocking Technologies, legitimating his right to register and use <interlock.com>.

The Administrative Panel in the case Am. Online, Inc., v. Anytime OnLine Traffic School[6], addressed the legitimacy in using a domain name registered as a fictitious name and demonstrating a bona fide offering of goods and services, stating that:

“The Panel also notes that the Respondent’s business name is Anytime OnLine Traffic School and that it is therefore not far-fetched to use <aoltrafficschool.com> as a domain name for Respondent’s business. The fact that the Respondent is using the abovementioned visible disclaimer on its website indicates bona fide offering of the traffic school services.”

Complainant, in the rush of having transferred a domain name that would clearly benefit its business, has implied that Respondent’s behavior could classify as cyber-squatting, and Jeremy Elliot’s use of the disputed domain name lacked of legitimate right, whereas no adequate proof was given for this Panel’s consideration.

Complainant is trying to become a recipient of the transfer of the domain name that the Panel considers has been legitimately registered, and whose commercial fair use, and in bona fide has been made by Respondent.

Respondent has demonstrated that he is known to the public by either his fictitious name and/or his domain name, a fact that legitimates the registration and use of the domain name according to the Policy. The invoices that where annexed to the Response proves the use of the fictitious business name by Respondent in making business.

Additionally to said evidence, Respondent provided two e-mails that where sent to Respondent’s e-mail address, which were created under the domain name. This evidence is considered by this Panel to be sufficient to demonstrate that Respondent is known to the public under its domain name.

For the Panel, Complainant failed in evidencing the illegitimate interest in registration and/or use of the domain name by Respondent. Respondent instead has demonstrated that when registering the contended domain name it was directed for the evolvement of his business and continues to be, plus that he is entitled to exploit it for his personal use. Thus, <interlock.com> is related with Respondent, its registered fictitious name, and offers goods and services related with its business in good faith being Respondent known to the public by this domain name.

Based on the aforementioned, the Panel concludes that Respondent has demonstrated that it has rights and legitimate interests over the disputed domain name in accordance with Paragraph 4(c) of the Policy.

Registration and Use in Bad Faith

The finding of Respondent’s rights and legitimate interests in the domain name could virtually preclude any possibility of registration and use of the domain name in bad faith. Nevertheless, the Panel wants to make some considerations on this matter, in relation with Complainant’s affirmation of bad faith by Respondent in the usage and registration of the disputed domain name <interlock.com>.

According to Paragraph 4(b) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) Circumstances indicating that Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) Circumstances indicating that 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 Respondent has engaged in a pattern of such conduct; or

(iii) Circumstances indicated that Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) Circumstances indicating that, by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to his web site or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of his web site or location or of a product or service on his web site or location.

Complainant is attempting to demonstrate the bad faith of Respondent by claiming that the use by Mr. Jeremy Elliot of the contended domain name for personal use, being a non-registrant of <interlock.com>, does not allow the registration of the same by Complainant. This affects Complainant’s interest in pursuing and registering the domain name. In accordance with Paragraph 4(b)(ii) of the Policy, the intention of Complainant is to reflect the registered trademark INTERLOCK in a domain name.

The Panel thoroughly studied the exhibits filed with both the Complaint and the Response, in order to establish if there has been bad faith in the registration and use of the disputed domain name.

Respondent has demonstrated and contended that his intention when registering the domain name was to offer services and goods related with his business. Though he still uses the domain name for that purpose, during the past 8 years he has been making personal and commercial use of the <interlock.com> domain name as an e-mail address. The Panel has considered that Respondent’s registration of the fictitious business name back in 1980, the continuity in its business, and the further registration of the domain name in 1995 lack proof of bad faith. This is due to the fact that such actions where not proven to be intended against Complainant’s business, or an attempt to divert, disrupt or attract the consumers to Respondent’s business, as both businesses offer different goods and services, addressed to different markets.

Additionally, Complainant has made commercial purchase offers to acquire the domain name <interlock.com> from Respondent, which have not been answered.  Complainant tries to imply that this reflects the bad faith of Interlocking Technologies d/b/a Jeremy Elliot. This allegation was contested by Respondent, asserting that he is used to receiving purchase offers to buy the contended domain name and that he has never answered any of the mentioned offers.

To the Panel’s consideration, Respondent has fully proven that he has no intention to sell, commercialize, rent, or otherwise transfer the domain name to Complainant or to any other third party interested in the disputed domain name. Moreover, Respondent has thoroughly proved to be the owner of the registered domain name <interlock.com>, for his business and/or personal usage.

Respondent filed the appropriate documentation in order to demonstrate to this Panel that when registering the domain name <interlock.com>, it was made without previous acknowledgment of Complainant’s business. It has to be considered by the Panel, the date of registration and the usage that has been given to the contended domain name, that has been clearly to pursue and promote Respondent’s business and/or for its personal legitimate use.

Complainant has failed to provide evidence that the registration of the domain name was made in order to prevent or detain Complainant from registering the mentioned domain name.

The issue of demonstrating bad faith in accordance with Paragraph 4(b) of the Policy, has been addressed by an Administrative Panel in the case Shering Aktiengesellschaft v. Metagen GmbH[7], where it held:

“As mentioned above, there is a likelihood of confusion between the registered trademark and the domain name. However, Complainant has not demonstrated that this likelihood has been created by Respondent intentionally and for the purpose of attracting Internet users to its web site for commercial gain which, among other facts, would indicate bad faith.

“The Panel has no indication that the Respondent did register the domain name for the purpose of taking advantage of the reputation of the Complainant. Respondent had the intention to use the domain name for its own purposes according to its fair business interests.”

For the Panel, the deficiency in exhibiting appropriate evidence in order to demonstrate the claims made by Complainant evidence the weakness in Complainant’s arguments. Complainant has been unable to demonstrate bad faith in the registration and use of the domain name <interlock.com> by Respondent. On the contrary, there has been sufficient evidence that the registration and use of the domain name by Respondent, has been legitimate.

The importance of adequately demonstrating and proving bad faith has been addressed previously by other Administrative Panels. This issue was addressed in the case of Robert Chestnutt v. Jennifer Tuminnelli[8] where it was stated that:

“[t]he lack of any evidence of use of the domain name to divert business or for any other purpose prohibited by the Rules requires the Panel to conclude this issue in favor of the Respondent.”

Furthermore Complainant has failed to prove that by Respondent’s usage of <interlock.com>, his business has been affected or the public misled.

The Panel considers and expects that the parties demonstrate with appropriate documentation and facts their cases. Moreover, it is expected by the Panel that when implying or affirming that the other party is under some sort of behavior it be based on real facts.

Being Complainant, a sophisticated person or entity, and represented by an attorney it is expected for him to know that all affirmations made in the Complaint have to be suitably researched and satisfactorily documented, supported and/or based.

Complainant is trying to obtain the transfer of a domain name registered legitimately by Respondent, trying to evidence that there should be some sort of a cancellation for non-use or forfeiture of property. It is important to point out that the focus of this proceeding is narrow and specific, and does not pursue either of the aforementioned behaviors and/or purposes.

The Policy is directed to attack and prevent cyber-squatting, and give the appropriate tools to the party that is being affected in its rights by a third party. By no means the Policy’s goal is to grant a registered domain name to a party based merely on such party’s desire to obtain the domain name, and to take it away from another party who acts in good faith and with rights that might be equally legitimate. In these cases, the party who wants to acquire a particular domain name has all kinds of commercial options to obtain said domain name, as usual in all free markets.

Consequently the Panel finds that Complainant failed to meet its burden of proof with respect to Respondent’s bad faith in the registration and use of the contended domain name.

DECISION

Having studied all three elements required under the ICANN Policy, the Panel concludes that Complainant failed to demonstrate two of the three elements of Paragraph 4(a) of the Policy, and therefore the Panel considers that the relief shall be DENIED.

Fernando Triana, Esq., Panelist
Dated: April 30, 2004

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