National arbitration forum

NATIONAL ARBITRATION FORUM DECISION Invicta Watch Company of America, Inc. v. Gregory Santana a/k/a Invicta.com Claim Number: FA0606000727672 PARTIES Complainant is Invicta Watch Company of America, Inc. (“Complainant”), represented by Jon A. Schiffrin, of Jon A. Schiffrin, P.C., 10617 Jones Street, Suite 301-A, Fairfax, VA 22030. Respondent is Gregory Santana a/k/a Invicta.com (“Respondent”), represented by Stephen L. Anderson, of Anderson & Associates, 32605 Highway 79 South, Suite 208, Temecula, CA 92592, USA.

REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <invicta.com>, registered with Network Solutions, Inc. 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.

Calvin A. Hamilton as Panelist.

PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on June 6, 2006; the National Arbitration Forum received a hard copy of the Complaint on June 8, 2006.

On June 7, 2006, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <invicta.com> domain name is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 June 14, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 5, 2006 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@invicta.com by e-mail.

A timely Response was received and determined to be complete on July 6, 2006.

Additional Submissions were received from both Complainant and Respondent and were determined to be timely pursuant to Supplemental Rule #7.

On 13th July 2006, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Calvin A. Hamilton as Panelist.

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

Respondent requests that the relief sought by the Complainant be denied and the finding be made that the Complaint was brought in bad faith constituting an abuse of the Administrative proceedings as defined in ICANN Rules, Paragraph 15(e).

PARTIES’ CONTENTIONS A. A. Complainant In relation to Policy ¶ 4(a)(i), Complainant, Invicta Watch Company of America Inc., contends that Respondent's <invicta.com> domain name is both identical and confusingly similar to Complainant's INVICTA registered trademark. It is contended that <invicta.com> cannot be distinguished from INVICTA trademark as it incorporates the whole mark.

In relation to Policy ¶ 4(a)(ii), Complainant contends that Respondent has no rights or legitimate interests in respect of <invicta.com>. It is alleged that Complainant has common law rights predating those of the Respondent obtained through a predecessor.

The fact that Respondent is registered as Gregory Santana a/k/a invicta.com indicates that he is not commonly known as <invicta.com> Respondent's domain name leads purely to a blank site not in connection with a bona fide offering of goods or services implying that Respondent is not making a legitimate noncommercial or fair use of the domain name. Complainant contends that such non-use constitutes a passive holding only for the purpose of extracting a large amount of money from Complainant.

In relation to Policy ¶ 4(a)(iii), Complainant contends that Respondent registered and is using the domain name in bad faith as the INVICTA brand was "recognized world wide" at the time of registration and that seven-year non-use constitutes bad faith. It is

contended that registration and use of <invicta.com> is bad faith in itself as is the passive holding. It is also argued that past use of the site for sale of memorabilia was in bad faith and was designed to divert customer attention away from watches and onto Respondent's range of goods and services.

B. Respondent Respondent contends that Complainant fails to prove all three elements of the Policy therefore failing to meet the burden of proof.

In relation to Policy ¶ 4(a)(i), Respondent contends that its rights in the <invicta.com> domain name predate the Complainant's rights in the INVICTA mark. The Respondent registered the domain name on March 28, 1996 whilst the Complainant did not even file for a trademark registration until 2002. Respondent contends that Complainant does not even establish that prior to 2002 and at the time of registration of the domain name Complainant held common law rights in the word INVICTA. In relation to Policy ¶ 4(a)(ii) Respondent contends that Complainant has failed to establish a prima facie case in support of its allegations that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii) since sentimental and personal value has been attached to the phrase, both of which cannot be disproved. Respondent has proof of having commonly been known as <invicta.com> from the Bank of America, friends and business affiliates. From such business dealings Respondent argues that it can be assumed that Respondent has rights and a legitimate interest in the domain name.

In relation to Policy ¶ 4(a)(iii), it is contended that if Respondent has rights and legitimate interest he cannot have acted in bad faith. It is also contended that as Respondent registered <invicta.com> as a domain name before INVICTA was registered as a trademark the earlier good faith transaction cannot later become bad faith if the other company was not within the reasonable contemplation of the Respondent. See Aspen Grove Inc. v. Aspen Grove, D2001-0798 (WIPO Oct. 5 2001) (finding it impossible to register a domain name in bad faith if the complainant's company did not exist at the time of registration).

Respondent also launches a counterclaim in the form of allegations of Reverse Domain Name Hijacking. Respondent contends that Complainant uses the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name (UDRP Rule 1) thus constituting an abuse of the administrative proceedings.

C. C. Additional Submissions (i) Complainant In relation to the point that Complainant has not met its burden regarding rights to INVICTA under Policy ¶ 4(a)(i), Complainant contends that it is inconsequential that rights were acquired in INVICTA on a specific date or when Complainant was

incorporated; rather, it is more important that the first use of INVICTA for watch design predates Respondent's domain name registration by at least seven (7) years (first use and in commerce 0-0-1989 according to trademark registration).

In relation to Policy ¶ 4(a)(ii), whether the burden of proof has been met concerning Respondent's lack of rights or legitimate interest in <invicta.com>, it is contended that Respondent is merely warehousing the name in order to sell the domain name to the highest bidder. This is not bona fide use of the service to demonstrate Respondent's claim of rights.

In support of the allegation that <invicta.com> was registered in bad faith under Policy ¶ 4(a)(iii), Complainant contends that Respondent's only interest in registration was to sell the domain name as a brand and that there is no reason to believe that his computer goods and services related in any way to the term INVICTA. Complainant also contends that an asking price well above any costs related to the domain name indicate bad faith especially since Respondent is not currently using the domain name for any purpose.

Finally Complainant contends that the Respondent's claim of Reverse Domain Name Hijacking is disingenuous. Respondent cannot demonstrate with evidence that the present proceeding was brought in bad faith so his claim is without merit. (ii) Respondent In relation to Policy ¶ 4(a)(i), Complainant has shown no priority right in the INVICTA mark as of the date in which Respondent first registered the domain name at issue.

Complainant has also failed to provide any evidentiary support for its vague contention that it purchased or otherwise obtained some right of priority from some unidentified "predecessor in interest".

In relation to Policy ¶ 4(a)(ii) Complainant has failed to refute the Respondent's evidence that he had used <invicta.com> in connection with a bona fide offering of goods and services, or that Respondent had commonly been known by that name.

In relation to Policy ¶ 4(a)(iii), it is also contended that if a domain name is originally registered in good faith, it cannot later be deemed to have been registered in bad faith. It is contended that there is also no basis for constructive notice of the Complainant's trademark at the time of registering the domain name. It is further contended that the Respondent's non-use in recent years does not constitute bad faith in violation of either paragraph 4(a)(i) or 4(a)(ii) of the Policy.

It is also resubmitted that such a lack of evidence is further proof that Complainant's actions were made in an attempt at Reverse Domain Name Hijacking thus providing an abuse of administrative proceeding in violation of Paragraph 15(e) of the Rules.

The Respondent has also submitted a Petition for Cancellation of the INVICTA watch trademark Registration number 2,947,259 before the United States Patent and Trademark Office dated 12th July 2006.

FINDINGS 1) 1) Complainant is in the business of manufacturing and distributing watches, jewelry and related products. Complainant incorporated its business on December 6, 1996.

2) 2) Complainant is owner of the trademark consisting of the word INVICTA together with a design and of other INVICTA-formative marks. Complainant registered with the United States Patent and Trademark Office the trademark INVICTA-MATIC on June 8, 2004 (Reg. No. 2,850,568); the service mark TURNING THE BALANCE OF POWER WITH INVICTA on November 9, 2004; and registered the trademark INVICTA on May 10, 2005 (Reg. No. 2,947,259). The first use (and in commerce) of the INVICTA trademark according to the registration document is 1989. These registrations are limited to their stated goods and services in International Class 014, namely for “watches” and in International Class 035 for wholesale distributorship services featuring watches.

3) 3) Complainant promotes its brand name and watches under the mark INVICTA through the domain name <invictawatch.com>. Complainant maintains a presence on the Internet by use of the domain name <invictawatch.com>.

4) 4) Respondent is an individual and used the domain name in the past to make a bona fide offering of goods and services over the internet. The Internet website featured a variety of goods, including computer software and entertainment related merchandise and memorabilia and providing hyperlinks to other informative and entertaining websites for several years. The website was in use until approximately December 16, 2003. The domain name now resolves to an empty website with white background and the words stating MindSpring Web Services.

5) 5) Respondent registered the domain name <invicta.com> on March 28, 1996 (Exhibit 2, Complaint) at which time Respondent had no actual or constructive knowledge of the Complainant.

6) 6) Respondent recorded the fictitious business statement in the name INVICTA.COM on April 16, 1996 with the Los Angeles, California County Clerk/Recorder (Exhibit A, Response).

7) 7) Respondent offered the disputed domain name for sale through a domain name broker, Great Names (Exhibit 3, Complainant’s Additional Submission) as advertised on the Respondent’s website according to archives (allegedly in or around March 2000), although there is no present offer for sale.

8) 8) Complainant did not have a registered trademark including the word INVICTA at the time of registration of the domain name and Complainant has not established that it held common law trademark rights in the domain name at the time of its registration.

9) 9) Respondent has rights and legitimate interest in the domain name.

10) 10) Respondent did not register and use the domain name <invicta.com> in bad faith.

11) 11) Complainant had legitimate reasons for requesting the administrative proceeding and thus there is no ground for a ruling of Reverse Domain Name Hijacking.

DISCUSSION 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: (i)

(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; (ii) (ii) The Respondent has no rights or legitimate interests in respect of the domain name; and (iii) (iii) The domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar There are two parts to the first element under Policy ¶ 4(a)(i). Firstly, the Complainant must have rights in a trademark or service mark. Secondly, the domain name registered by the Respondent must be identical or confusingly similar to that trademark or service mark.

Thus, for relief to be granted the Complainant must establish that it has rights in a trademark or service mark. For purposes of the Policy, Complainant's numerous registrations for INVICTA and INVICTA-formative marks are sufficient to establish Complainant's rights in the INVICTA mark under Policy ¶ 4(a)(i). See Am. Online, Inc v.

Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2001) (successful trademark registration with USPTO creates a presumption of rights in a mark).

However, Respondent registered the <invicta.com> domain name on March 28, 1996, prior to any applications for registration of Complainant’s marks.

Paragraph 4(a)(i) of the Policy necessarily implies that Complainant’s rights predate the registration of Registrant’s domain name. See Trujillo v. Soft Corp., FA 171259 (Nat. Arb. Forum Sept. 10, 2003). The panel in Intermark Media Inc. v. Wang Logic Corp., FA 139660 (Nat. Arb. Forum February 19, 2003) stated that “To raise a claim against another party that would support transfer of a domain name registration, Complainant must demonstrate interests in a mark that predate the domain name registration.” A finding to the contrary would obviate the intention of the Policy, which was prescribed to protect infringement of existing trademark rights through identical or confusingly similar domain name registration. See Phoenix Mortgage Corp. v. Tom Toggas, D2001-0101 (WIPO March 30, 2001) (finding that Policy ¶ 4(a)(i) “necessarily implies that the Complainant’s rights predate the Respondent’s registration...of the domain name”); see also Ezcommerce Global Solutions, Inc. v. Alphabase Interactive, D2002-0943 (WIPO

Nov. 21, 2002) (allowing a junior trademark user to challenge a domain name registration, which predates Complainant’s trademark rights, is “obviously contrary to the intent of the Policy and to trademark law generally”).”

Thus, at time of registration of the disputed domain name, Complainant had no registered trademark or service mark.

For purposes of the Policy, Complainant is not required to own a valid trademark registration in order to establish rights in the mark pursuant to Policy 4(a)(i). However, in order to sustain the very first element of its case, Complainant must provide the panel with alternative evidence that its use of the name INVICTA has given Complainant common law trademark rights in that name. Prior panels have recognized “common law” trademark rights as appropriate for protection under the Policy if the complainant can establish that it has done business using the name in question in a sufficient manner to cause a secondary meaning identifiable to Complainant’s goods or services. See Molecular Nutrition, Inc. v. Network News & Publ'ns, FA 156715 (Nat. Arb. Forum June 24, 2003) (finding that mere assertions of such rights are insufficient without accompanying evidence to demonstrate that the public identifies the complainant's mark exclusively or primarily with the Complainant's products); see also United Artists Theatre Circuit, Inc. v. Domains for Sale Inc., D2002-0005 (WIPO Mar. 27, 2002) and Meijer, Inc. v Porksandwich Web Services, FA 97186 (Nat. Arb. Forum July 6, 2001).

In this case, Complainant has made a number of assertions but no actual documentation has been provided to determine, for example, the volume and scale of such sales prior to 1996 and up to the date of application for registration. The Panel has no independent knowledge that any significant group in the population identifies the word INVICTA exclusively or even primarily with Complainant’s products to produce a secondary meaning. Furthermore, it must be noted that the word INVICTA is a generic term included in several hundred other registered domain names.

In particular, Complainant relies on Adobe Systems Incorporate v. Domain OZ, D20000057 (WIPO March 22, 2000) in order to establish proprietary rights in the term INVICTA. In that UDRP decision it is stated that “Complainant has filed an application for registration of the trademark "ACROBAT READER" on the Principal Register at the PTO, has provided substantial evidence of its use of that trademark in commerce, and has asserted that this use preceded Respondent’s registration of the domain name "acrobatreader.com" ...The Policy requires that a Complainant have "rights" in a trademark that is subject to abuse by a Respondent (Policy, para. 4(a)(i)). It does not require that a trademark be registered by a governmental authority for such rights to exist.

In U.S. law, trademark infringement actions may be brought on the basis of unregistered marks (15 USCS § 1125(a). See, e.g., Brookfield Communications v. West Coast Entertainment, 174 F.3d 1036, 1047, n. 8, (9th Cir. 1999)) and U.S. legislation authorizing trademark infringement actions based on abusive domain name registration does not require registration of a trademark as a condition for obtaining relief (15 USCS § 1125(d)). In U.S. law, an application for trademark registration on the Principal

Register constitutes constructive use of a mark, contingent on subsequent registration (15 USCS § 1057(c)).”

However, the facts of that case must be distinguished from those of the present domain name dispute, since the application for registration of the trademark “INVICTA” is dated July 29, 2002. This means that there was no constructive use of a mark prior to Respondent’s domain name registration.

This Panel does not doubt that common law rights are equally capable of protection under the Policy but the Panel is forced to conclude that the Complainant has not met its burden of proof for the purpose of establishing common law trademark rights in the word INVICTA, prior to the Respondent’s registration of the <invicta.com> domain name.

For this reason, Complainant has not satisfied paragraph 4(a)(i) of the Policy.

Nevertheless, if it is assumed without deciding that the Complainant has common law rights in the mark INVICTA, the Panel finds that Respondent's <invicta.com> is identical to the INVICTA mark as it contains the entire mark with the mere addition of the generic top-level domain ("gTLD")“.com.” By not further altering the mark, the disputed domain name cannot be distinguished from the mark. See also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding 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). On this mere assumption, which is not the Panel’s decision, the Panel continues with the analysis of the other heads under Paragraph 4(a) of the Policy, even though such analysis has been considered unnecessary by previous panels for the reason that the Complainant must satisfy each and every element. See Pet Warehouse v. Pets.com, Inc., D2000-0105 (WIPO April 13, 2000) (panel need not consider elements of legitimate interests or bad faith if Complainant fails to establish enforceable rights in mark); see also Creative Curb v.

Edgetec International Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because Complainant must prove all three elements under the Policy, Complainant's failure to prove one of the elements makes further inquiry into the remaining element unnecessary).

Rights or Legitimate Interests Under the Paragraph 4(a)(ii) of the Policy, Complainant must establish a prima facie case that Respondent has no rights or legitimate interests in respect of the domain name.

Thereafter it is for the Respondent to show that Respondent does have rights or legitimate interests in that domain name. Respondent may do this by demonstrating in particular but without limitation, according to Paragraph 4(c) of the Policy, that (i) before any notice to Respondent of the dispute, 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) Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if Respondent 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.

Respondent has supplied sufficient evidence to prove that Respondent has rights and a legitimate interest in the disputed domain name: (i) prior to notice of the dispute, there was use of the domain name in connection with a bona fide offering of goods or services and (ii) Respondentâ&#x20AC;&#x2122;s recording of the fictitious business name in 1996 is sufficient to show that Respondent has been commonly known by the domain name, even though Respondent has acquired no trademark or service mark rights.

In particular, Respondent has asserted that it chose the <invicta.com> domain name because the term INVICTA is the motto of County Kent, England, and is the Latin term for â&#x20AC;&#x153;unconquered.â&#x20AC;? Respondent maintains that two executives of Respondent's business are from Kent County, England and are familiar with the motto in its historic sense and so interest in the name stems from personal roots thus ensuring its legitimacy.

Moreover, Respondent used the domain name <invicta.com> for a significant period of time for business purposes, thus further highlighting his rights and legitimate interests in the title. Respondent alleges that at all times his business was entirely unrelated to that carried on by Complainant. See Warm Things Inc. v. Weiss, D2002-0085 (WIPO Apr. 18, 2002) (finding that the respondent was making a bona fide offering of goods or services at the <warmthings.com> domain name as the respondent was operating in a field unrelated to the Complainant or its products).

Respondent claims to have been commonly known as <invicta.com> since April 16, 1996 when Respondent filed a fictitious business statement with the Los Angeles County Clerk's Office in California. Past panel decisions indicate that trading for a period of time as a domain name (10 years in this case) is sufficient to establish that the Respondent can be commonly so called. See Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003) (finding that as the Respondent has registered its domain name as its business identity with the New York County Clerk a month after registering its domain name, it had demonstrated rights and legitimate interests in the domain name).

Furthermore, the word INVICTA may be deemed a generic or descriptive term and has been proved to be included in several hundred other registered domain names as well as trademarks. See Energy Source Inc. v. Your Energy Source, FA 96364 (Nat. Arb. Forum Feb. 9, 2001) (finding that Respondent has rights and legitimate interests in the domain name where Respondent has persuasively shown that the domain name is comprised of generic and/or descriptive terms and is not exclusively associated with the Complainant's business).

In the Additional Submission by Complainant, it is asserted that previously (although not currently) Respondent had offered the domain name for sale. Complainant has relied on Educational Testing Service v. TOEFL, D-2000-0044 (WIPO March 16, 2000) to establish that the brokering of a domain name to the highest bidder is not a bona fide use and prevents Respondent from having a right or legitimate interest in the domain name.

However, that decision must again be distinguished: firstly, because it was decided in default and secondly, because the Panel in that decision concluded that there had been bad faith (not a lack of rights or interest) for the reason that the respondent had “made no use of the domain name other than to offer it for sale at a price that is likely to substantially exceed its out-of-pocket costs of registration, and the price that the domain name commands would largely be based on the trademark of the Complainant.” In the present case, the price would be based both on the trademark of the Complainant and also on the INVICTA formative marks held by others according to the Madrid system (Exhibit K, Response). The panel in the <toefl.com> case refrained from drawing the inference that offering the domain name for sale on a publicly accessible website to any party willing to pay its price constituted an offer to sell the domain name to the Complainant or to a competitor of the Complainant. It conceded that certainly the Complainant and its competitors were potential purchasers, just as in the present case, but concluded that if the drafters of paragraph 4(b)(i) of the Policy had intended to broadly cover offers to any and all potential purchasers as evidence of bad faith, it would have been a simple matter to refer to all offers to sell the domain name, and not offers to sell to specific parties or classes of parties. Complainant’s assertions are not sufficient to rebut the Respondent’s rights or legitimate interest in the disputed domain name.

That said, the Panel finds that Policy ¶ 4(a)(ii) has not been satisfied.

Registration and Use in Bad Faith Under Paragraph 4(a)(iii), it is necessary for the Complainant to show that the domain name both has been registered and is being used in bad faith. As it has been established that Respondent has rights and a legitimate interest in the domain name, and that the domain name was registered nine (9) years before INVICTA trademark was registered and six (6) years before the application for registration was filed, it is difficult to find that Respondent registered and used the name in bad faith. See Pensacola Christian Coll. v.

Gage, FA 101314 (Nat. Arb. Forum Dec. 12, 2001) (“because the Panel has found that Respondent has rights and interests in respect of [sic] the domain name at issue, there is no need to decide the issue of bad faith.”).

For its part, the Respondent has shown that it registered the disputed domain name some two years before the Complainant was incorporated.

To cite Barlow Lyde & Gilbert v. The Business Law Group, D2005-0493 (WIPO June 24, 2005), “there is no basis for determining that Respondent should have been on constructive notice of Complainant’s mark at the time it registered the disputed domain name. Complainant has not demonstrated that its common law rights in the mark were

well known in 1996, such that Respondent should have been aware of Complainant’s rights in it.”

Furthermore a mere offer to sell a domain name does not necessarily constitute bad faith use, and panels have noted that "there is nothing inherently wrongful in the offer or sale of domain names, without more, such as to justify a finding of bad faith under the Policy." See N.C.P. Marketing Group v. Entredomains, D2000-0387 (WIPO, July 5, 2000) and Onu S.R.L. v. Online Sales, AF-0672 (eResolution Feb. 16, 2001). Moreover, it was the Complainant who contacted the Respondent in 2005 concerning the transfer of the domain name.

That said, the Panel finds that Policy ¶ 4(a)(iii) has not been satisfied.

Reverse Domain Name Hijacking It is contended that Complainant has engaged in Reverse Domain Name Hijacking.

Complainant applied for registration of INVICTA with USPTO in 2002 and incorporated its company in December 1996; <invicta.com> was a registered domain name in March 1996. Complainant therefore had knowledge of Respondent's registration and this is ground for dismissing the Complaint. See Aspen Grove, Inc. v. Aspen Grove, D20010798 (WIPO Oct. 5 2001) (finding that the respondent's registration of <aspengrove.com> domain name two years before the Complainant's incorporation justified a reverse domain name hijacking ruling); see also Onu S.R.L. v. Online Sales, AF-0672 (eResolution Feb. 16, 2001); see also NetDeposit, Inc. v. NetDeposit.com, D2003-0365 (WIPO July 22, 2003) (finding reverse domain name hijacking because "Respondent's domain name registration preceded the Complainant's creation of its trademark rights.").

However, there is a legitimate question of whether the Complainant enjoyed common law trademark rights at the time of the registration of the domain name, sufficient to warrant the action taken by the Complainant in an attempt to protect its rights and to justify the Complainant’s interest in challenging Respondent’s rights and legitimate interest in the domain name and in alleging bad faith registration and use. For which reason, the Panel refrains from finding that the grounds for Reverse Domain Name Hijacking under paragraph 15(e) of the Policy have been met.

DECISION Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Calvin A. Hamilton, Panelist Dated: August 3rd, 2006