WIPO Domain Name Decision D2009-1273 for cheechandchong.com

WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Richard “Cheech” Marin, Tommy Chong v. Traced, Inc. Case No. D2009-1273 1. The Parties

The Complainants are Richard “Cheech” Marin of Beverly Hills, California, United States of America and Tommy Chong of Los Angeles, California, United States of America, represented by Weissmann, Wolff, Coleman, Grodin, & Evall, LLP, United States of America.

The Respondent is Traced, Inc. of Waldwick, New Jersey, United States of America, represented by Michael J Brown Law Office, United States of America. 2. The Domain Name and Registrar

The disputed domain name is registered with Network Solutions, LLC. 3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2009. On September 25, 2009, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the disputed domain name. On October 25, 2009, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 1, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was October 21, 2009. The Response was filed with the Center on October 21, 2009.

The Center appointed William R. Towns as the sole panelist in this matter on October 26, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background

The Complainants are entertainers and performance artists. They are perhaps best known for their work as “Cheech and Chong”, a comedy duo whose stand up routines developed an appreciable following during the 1970s and 1980s. The Complainants as “Cheech and Chong” released a number of successful comedy albums as well as several feature length movies, the first of which, Up in Smoke, debuted in 1978. The Complainants disbanded as a comedy team in the mid-1980s, and each pursued solo careers, but they were reunited in 2008 for a comedy tour and have continued to work together since then.

The disputed domain name was initially registered in May 1998. The disputed domain name resolves to the “Cheech and Chong Dot Com” website, operated by the Respondent. The Respondent promotes its website as “the essential source for merchandise and news about Cheech and Chong.” See “www./traced.html”. In addition to news oriented content related to the Complainants, the Respondent's website offers for sale “Cheech and Chong” albums, movies and merchandise. The Respondent's website also contains advertising links to third party sites offering other merchandise and apparel and promoting various entertainment events.

The Respondent registered the disputed domain name without the Complainants' authorization. The Complainants objected to the Respondent's registration and use of the domain name in March 2004, but apparently acquiesced to the Respondent's continued use of the domain name with the website until the Complainants reunited in 2008. Following a period of negotiation in which the parties were unable to resolve their differences, on June 29, 2009, the Complainants' notified the Respondent that they were revoking effective July 31, 2009 any prior consent (i.e., license) for the Registrant's use of the disputed domain name, demanding that the domain name be transferred.

The Respondent's website currently displays the following disclaimer in small print at the bottom of the website's home page: “Cheech and Chong Dot Com is a Cheech and Chong fan site. It is not operated by Cheech and Chong.” This disclaimer appears to be of recent origin, based on the historical records of the Respondent's website viewable on the Internet Archive, . 5. Parties' Contentions A. Complainant

The Complainants assert common law trademark rights in the name “Cheech and Chong”. According to the Complainants, because of long, continuous and substantially exclusive use of the name, the public has come to recognize CHEECH AND CHONG as a distinctive identifier of the Complainants' goods and services as comedians. The Complainants maintain that the disputed domain name is identical and confusingly similar to their CHEECH AND CHONG mark, and that the Respondent registered the domain name in bad faith without the Complainants' authorization in order to trade on the goodwill developed in the CHEECH AND CHONG mark.

In view of the foregoing, the Complainants assert that the Respondent has no rights or legitimate interests in the disputed domain name. According to the Complainants, while the Respondent beginning in 2006 was permitted to use the disputed domain name in accordance with a license from the Complainants, the license was terminated by the Complainants on July 31, 2009, and the Complainant's allege that the Respondent is continuing to use the disputed domain name in bad faith, to intentionally attract for commercial gain Internet visitors to the Respondent's website by creating a likelihood of confusion with the Complainants' mark as to source, sponsorship, affiliation or endorsement of the Respondent's website. B. Respondent

The Respondent asserts that the Complainants had not been performing as “Cheech and Chong” for more than thirteen (13) years when the disputed domain name was registered, and that the Complainant's had abandoned any common law rights in the CHEECH AND CHONG mark. According to the Respondent, the “Cheech and Chong Dot Com” website was conceived as a fan site, and the Respondent contends that no merchandise was offered for sale on the website until 2002. The Respondent asserts that the advertising links to third party commercial sites before then were intended only to defray the costs of operating the website.

The Respondent contends that in 2006 both of the Complainants independently consented to the Respondent's use of the disputed domain name with the website, with full knowledge of the commercial use that had been made since 2002. Starting in 2006, the Respondent maintains that the Complainant Chong provided merchandise to the Respondent to be sold on the website. Further the Respondent asserts that the Complainants and/or their publicists referred to the Respondent's website as the “official Cheech and Chong” fan site, although the Respondent denies ever having held itself out as the Complainants' representative.

The Respondent maintains there is no evidence in the record to support the Complainants' contention that the Respondent registered and is using the disputed domain name in bad faith. First, the Respondent asserts that the domain name initially was registered for use with a fan site, and that the Respondent operated the website without commercial gain for four years. Second, the Respondent asserts that it relied upon the Complainant's consent in developing the website as a viable commercial site. Third, the Respondent notes that it was only after the Complainants decided to reunite for a performance tour in 2008, some ten (10) years after the registration of the disputed domain name, that the Complainants sought to challenge the Respondent's registration and use of the disputed domain name, from which the Respondent further asserts the Complainants benefitted for years. 6. Discussion and Findings A. Scope of the Policy

The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store,WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. Weber-Stephen Products Co. v. Armitage Hardware,WIPO Case No. D2000-0187. See Final Report of the WIPO Internet Domain Name Process, paragraphs 169 and 170.

Paragraph 15(a) of the Rules provides that the Panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable.

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

(i) The domain name registered by the Respondent 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 with respect to the domain name; and

(iii) The domain name has been registered and is being used in bad faith.

Cancellation or transfer of the domain name is the sole remedy provided to the Complainant under the Policy, as set forth in paragraph 4(i).

Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.

Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in the domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270. B. Laches

The Respondent notes that the disputed domain name was registered and for nine years before the filing of the Complaint herein. The Respondent also contends that after objecting to the Respondent's use of the domain name with its website in 2004, the Complainants thereafter consented to such use in 2006. The Respondent's argues that such circumstances should now preclude the Complainants from contesting the Respondent's registration and use of the disputed domain name. This argument raises the issue of laches.

The parties are located in the United States, where courts generally recognize the doctrine of laches (undue delay in asserting a legal claim, resulting in prejudice to the respondent). However, the Panel concludes that the equitable defense of laches does not properly apply in this Policy proceeding. The remedies under the Policy are injunctive rather than compensatory in nature, and the concern is to avoid ongoing or future confusion as to the source of communications, goods, or services. See The Hebrew University of Jerusalem v. Alberta Hot Rods,WIPO Case No. D2002-0616; The E.W. Scripps Company v. Sinologic Industries,WIPO Case No. D2003-0447 (the Policy does not contemplate a defense of laches, which is inimical to the Policy's purposes). See also Tom Cruise v. Network Operations Center/ Alberta Hot Rods,WIPO Case No. D2006-0560 (finding no meaningful precedent under the Policy for refusing to enforce trademark rights based on delay in bringing a complaint).1 C. Identical or Confusingly Similar

The Panel initially addresses the question of whether the Complainants have established common law trademark or service mark rights in CHEECH AND CHONG.2 As noted by the Panel in Israel Harold Asper v. Communication X Inc.,WIPO Case No. D2001-0540, in cases involving entertainers, authors, professional athletes and to a lesser extent business persons, complainants have been found to have common law marks in their names in circumstances where the name has been used as a marketable commodity, for a fee to promote another's goods or services, or for direct commercial purposes in the marketing of the complainant's own goods or services. See, e.g., Freddy Adu v. Frank Fushille,WIPO Case No. D2004-0682; David Gilmour, David Gilmour Music Limited and David Gilmour Music Overseas Limited v. Ermanno Cenicolla,WIPO Case No. D2000-1459; Julia Fiona Roberts v. Russell Boyd,WIPO Case No. D2000-0210; Jeanette Winterson v. Mark Hogarth,WIPO Case No. D2000-0235; Monty and Pat Roberts, Inc. v. Bill Keith,WIPO Case No. D2000-0299; Steven Rattner v. BuyThisDomainName (John Pepin),WIPO Case No. D2000-0402; Daniel C. Marino, Jr. v. Video Images Productions, et al.,WIPO Case No. D2000-0598; Isabelle Adjani v. Second Orbit Communications, Inc.,WIPO Case No. D2000-0867; Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “M”,WIPO Case No. D2000-0847; Nik Carter v. The Afternoon Fiasco,WIPO Case No. D2000-0658.

Merely having a “famous” name is not sufficient to establish common law trademark or service mark rights in the name. The Policy itself inherently makes a distinction between the protection afforded trademark rights and rights arising under the law of publicity, which has been discussed in further detail in several UDRP cases. See Israel Harold Asper v. Communication X Inc., supra. Under the law of publicity, as recognized in virtually all United States jurisdictions, well-known individuals have the right to control commercial exploitation of their names and likenesses. See Bi-Rite Enterprises, Inc., Et Al. V. Bruce Miner Company, Inc., Et Al., 757 F.2d 440 (1st Cir. 1985). To be entitled to protection under the Policy, however, a personal name must function as a trademark, and for common law trademark rights to exist, a complainant's personal name must have come to be recognized by the public as a symbol which identifies particular goods or services with a single source. That is to say, the Complainants' “Cheech and Chong” name must be used such that a relevant segment of the public comes to recognize the name as a symbol that distinguishes their goods and services from those of others.

On the basis of the evidence presented by the Complainants in this case, the Panel concludes that CHEECH AND CHONG has come to be recognized by the public as a source indicator for the Complainants' goods and services. Accordingly, the Panel finds that the Complainants have established common law trademark rights in CHEECH AND CHONG. The Panel finds the Respondent's argument that the Complainants had abandoned the mark prior to the registration of the disputed domain name unpersuasive. Whether or not the Complainants performed under the name “Cheech and Chong” between 1985 and 2008 is not dispositive in this instance, as there is substantial evidence in the record of sales of CHEECH AND CHONG albums, movies, memorabilia, and merchandize throughout this time period. Moreover, there is no evidence that the Complainants intended to abandon their rights in the CHEECH AND CHONG mark with respect to such goods or with respect to their entertainment services, even if they did not anticipate performing together again at any specific time.

Turning to the issue of identity, the Panel finds that the disputed domain name is identical and/or confusingly similar to the Complainants' CHEECH AND CHONG mark for purposes of paragraph 4(a)(i) of the Policy. The critical inquiry under the first element of the Policy is whether the mark and domain name, when directly compared, are identical or confusingly similar. See Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662. That is clearly the case here. See David Gilmour, David Gilmour Music Limited and David Gilmore Music Overseas Limited v. Ermanno Cenicolla, supra.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. D. Rights or Legitimate Interests

As noted above, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of proof to the respondent to come forward with evidence of rights or legitimate interests in a disputed domain name. The Panel is persuaded from the record of this case that a prima facie showing under paragraph 4(a)(ii) has been made. The record clearly establishes that the Respondent was aware of the Complainants and their use of the CHEECH AND CHONG name and mark when the disputed domain name was registered. Without obtaining the permission of the Complainants, the Respondent appropriated the Complainants' mark for use as its own domain name, and the Respondent has used the disputed domain name to attract Internet users to a website that since its launch has contained advertising links to third party commercial websites, and which since at least 2002 has offered CHEECH AND CHONG branded merchandise directly for sale. The Complainants objected to the Respondent's use of the disputed domain name in 2004. While the Respondent claims to have obtained the Complainant's consent for its commercial use of the domain name in 2006, such consent, if any, was subsequently revoked. Nevertheless, the Respondent has continued to use the disputed domain name to attract Internet traffic to its website for commercial gain.

Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:

(i) before any notice to it of the dispute, the respondent's use of, or 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) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) the 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.

The Respondent argues that it has established rights or legitimate interests in the disputed domain name under paragraph 4(c)(iii) of the Policy based on the use of the disputed domain name with a “fan site”. The Panel disagrees. The language of paragraph 4(c)(iii) of the Policy unambiguously requires a respondent to be “making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers.” The Panel further notes that paragraph 4(c)(iii) of the Policy only concerns active websites that practice genuine, noncommercial criticism,3 and only deals with fan sites that are clearly active and noncommercial.4 See C.S. Lewis (PTE.) Ltd. v. Richard Saville-Smith,WIPO Case No. D2008-0821.

Some WIPO Panels have held that a respondent does not have a right to register a domain name that is identical to the complainant's mark for use with a fan site, since that action prevents the trademark holder from exercising rights to its mark and managing its presence on the Internet. See, e.g., David Gilmour, David Gilmour Music Limited and David Gilmore Music Overseas Limited v. Ermanno Cenicolla, supra. At a minimum, however, the respondent should not obtain a commercial benefit from the fan site, and the site should be clearly distinctive from any official website. See 2001 White Castle Way, Inc. v. Glyn O. Jacobs,WIPO Case No. D2004-0001.

While the Respondent argues that it operated its website as a fan site without commercial gain for four years (i.e., 1998-2002), there is no question that the Respondent posted advertising links on his website during this time period. The Respondent does not deny this, nor does the Respondent deny that advertising revenues were generated. Instead, the Respondent claims that such advertising revenues were incidental to the operation of the fan site. However, given the nature and extent of the advertising links reflected in the historic records of the Respondent's website on the Internet Archive, the Panel is not prepared to accept the Respondent's unsubstantiated averment that the paid advertising generated thereby was merely “incidental” to the asserted noncommercial use of the website.

Further, there is no dispute that beginning in 2002 the Respondent further monetized the disputed domain name when it began offering CHEECH AND CHONG movies, albums and merchandize for sale directly on its website, while continuing the practice of posting advertising links to third party commercial websites. In view of the foregoing, the Panel finds that the Respondent has failed to demonstrate that it is making a legitimate noncommercial or fair use of the disputed domain name within the contemplation of paragraph 4(c)(iii) of the Policy. See Tom Cruise v. Network Operations Center / Alberta Hot Rods, supra.

The Panel further notes that (aside from the above significant factor) the Respondent's website in most other respects gives the appearance of being an official “Cheech and Chong” website. There is no evidence in the record that the Respondent's website at any time before the filing of the instant Complainant contained any disclaimer that the site is endorsed by or is an official website of the Complainants. Under circumstances such as exist here, where the Respondent has registered a domain name that is identical to the Complainants' mark for use with a website on which the Complainants' branded merchandise is sold, the Respondent's failure to provide a conspicuous disclaimer of any affiliation is telling. See 2001 White Castle Way, Inc. v. Glyn O. Jacobs, supra. While the Respondent's website now contains a disclaimer in small print situated at the bottom of the Respondent's home page, the Panel does not consider this to be either an effective disclaimer. Nor in any event can the existence of a disclaimer cure bad faith when established by other factors. See Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic,WIPO Case No. D2000-1698.

Nor does the Panel find that the Respondent had demonstrated rights or legitimate interests based on the use of the disputed domain name, prior to any notice of this dispute, in connection with a bona fide offering of goods or services within the purview of paragraph 4(c)(i) of the Policy. The Respondent clearly knew of the name and reputation of the Complainants long before registering the disputed domain name. The Panel finds that the Respondent registered the disputed domain name, which is identical to the Complainants' mark, in order to trade on the initial interest confusion between the domain name and the Complainants' mark, so as to attract Internet users to the Respondent's website. Under such circumstances, neither the sale of the Complainants' products or the generation of paid advertising revenues from links on the website constitutes a bona fide offering of goods or services. See David Gilmour, David Gilmour Music Limited and David Gilmore Music Overseas Limited v. Ermanno Cenicolla, supra; Barceló Corporación Empresarial, S.A. v. Hello Domain, supra; Robert Bosch GmbH v. Asia Ventures, Inc.,WIPO Case No. D2005-0946; E v. Ult. Search, Inc.,WIPO Case No. D2001-1319. See also Trade Me Limited v. Vertical Axis Inc,WIPO Case No. D2009-0093.

In light of the foregoing, the Panel further finds unpersuasive the Respondent's assertion of rights or legitimate interests in the disputed domain name based on the Complainants' purported consent in 2006 to the Respondent's commercial use of the domain name. The Response specifically asserts that the Respondent relied upon the Complainants' consent in developing the “Cheech and Chong Dot Com” website as a viable commercial operation. However, and as discussed above, it is undisputed that the Respondent had substantially commercialized the website by 2002, and it is clear that the Respondent did not seek the Complainants' permission before doing so. Further, the Complainants objected to the Respondent's use of the disputed domain name in 2004. Even assuming the Complainants subsequently acquiesced to the Respondent's commercial exploitation of the CHEECH AND CHONG mark between 2006 and 2008, the Respondent still failed to operate its website so as to establish legitimate rights or interests as a reseller of the Complainants' products under the fair use standards of Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903.

Accordingly, the Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. E. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (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 the respondent 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) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on its website or location.

The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See, Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is “to curb the abusive registration of domain names in the circumstances where the registrant is seeking to profit from and exploit the trademark of another”. M, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230.

For reasons discussed under the preceding heading, the Panel finds from the facts and circumstances in the record that the Respondent knew of and had in mind the Complainants' mark when registering the disputed domain name. See, Ticketmaster Corporation v. Spider Web Design, Inc.,WIPO Case No. D2000-1551. In the circumstances presented here, the Respondent's registration of a domain name identical to the Complainants' CHEECH AND CHONG mark to attract Internet users to the Respondent's website is evidence of bad faith. See Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic, supra. As discussed above, the Respondent has failed to demonstrate rights or legitimate interests in the disputed domain name, and as noted in Research In Motion Limited v. Dustin Picov,WIPO Case No. D2001-0492, when a domain name is so obviously connected with a complainant, its very use by a registrant with no connection to the complainant suggests “opportunistic bad faith”. See also Paule Ka v. Paula Korenek,WIPO Case No. D2003-0453. Insofar as reflected in the record, it is only by reason of the registration and use of the disputed domain name that the Respondent can claim to have any connection with the Complainants.

In view of the foregoing, the Panel further concludes from the totality of the circumstances in the record that the Respondent registered the disputed domain name with the intent of exploiting and profiting from the Complainants' CHEECH AND CHONG mark. See Aubert International SAS and Aubert France SA v. T Co., supra. The record reflects the Respondent's monetization of the domain name through the generation of pad advertising, belying any claim that the domain name was intended solely for use with a purely noncommercial fan site. This initial monetization of the domain name was soon followed by further commercialization of the Respondent's website, including the sale of the Complainants' products directly on the website. In the Panel's judgment, the record on balance reflects conduct by the Respondent consistent with an intent to capitalize on the initial interest confusion resulting from the registration of a domain name identical to the Complainants' mark, compounded by its use with a website that Internet visitors could easily mistake for that of the Complainants.

The Panel finds from the totality of the circumstances in the record that the Respondent registered and is using and has used the disputed domain name in bad faith under paragraph 4(b)(iv) of the Policy, to intentionally attract Internet users to its website for commercial gain, by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship or affiliation. See E, v. Ult. Search Inc., supra. That the Complainants may have benefitted from the Respondent's operation of the website, and the Complainants' apparent acquiescence in the Respondent's operation of the website between 2006 and 2008 are mitigating circumstances that have been considered by the Panel. In the final analysis, however, these circumstances do not reflect an intentional relinquishment by the Complainants of their trademark rights, nor are they sufficient to vitiate the otherwise clear pattern of bad faith registration and use reflected in the record.

The Panel notes that a number of recent UDRP panel decisions have held that a respondent's use of a domain name in contravention of paragraph 4(b)(iv) to intentionally attract Internet users to its web site for commercial gain by creating a likelihood of confusion with the complainant's mark as to source may itself be sufficient to establish “registration and use in bad faith” in the absence of any credible allegations to the contrary regarding the respondent's intent at the time of registration. See Denver Newspaper Agency v. J LLC, NAF Claim No. FA1282148; Octogen Pharmacal Company, Inc. v. Domains By Proxy, Inc./Rich Sanders and Octogen e-Solutions,WIPO Case No. D2009-0786; City Views Limited v. Moniker Privacy Services/Xander, Jeduyu, ALGEBRALIVE,WIPO Case No. D2009-0643. The Panel merely observes that in this instance it has concluded Respondent more likely than not had the Complainants' mark in mind when registering the disputed domain name and that the Respondent is using the disputed domain name in a manner proscribed by paragraph 4(b)(iv) of the Policy.

In view of all of the foregoing, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainants.

William R. Towns
Sole Panelist

Dated: November 9, 2009

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