WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Intellogy Solutions, LLC v. Craig Schmidt and IntelliGolf, Inc.
Case No. D2009-1244
1. The Parties
Complainant is Intellogy Solutions, LLC of Greensboro, North Carolina,
United States of America, represented by Domingo J. Rivera, United States of America.
Respondents are Craig Schmidt and IntelliGolf, Inc., of Cameron Park, California,
United States of America, appearing pro se.
2. The Domain Name and Registrar
The Disputed Domain Name <intellogy.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center
(the “Center”) on September 18, 2009. On September 21, 2009, the Center transmitted
by email to eNom a request for registrar verification in connection with the disputed
Domain Name. On September 21, 2009, eNom transmitted by email to the Center its
verification response confirming that both Respondents are 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
Respondents of the Complaint, and the proceedings commenced on October 20, 2009.
In accordance with the Rules, paragraph 5(a), the due date for Response was
November 9, 2009. The Response was filed with the Center on October 31, 2009.
The Center appointed David H. Bernstein as the sole panelist in this matter on
November 4, 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. Pursuant to paragraph 10(c) of the Rules, the Panel extended the date for
decision to November 25, 2009.
4. Factual Background
Complainant Intellogy Solutions, LLC1 is a computer service provider that hosts and
maintains websites for clients on a computer server for a global computer network.
Complainant is the owner of the registered trademark INTELLOGY. It applied for that
mark before the United States Patent and Trademark Office (“USPTO”) on
December 8, 2000; the mark was registered on October 16, 2001. Additionally,
Complainant has registered the following domain names: <intellogy.net>, registered on
November 21, 2000; <intellogy.org>, <intellogy.info>, and <intellogy.biz>, all
registered on April 1, 2002; and <intellogysolutions.com>, registered on July 7, 2003.
Respondent Intelligolf, Inc. (“Intelligolf”), a sports-enhancing software products and
technology company, is the identified registrant of <intellogy.com>, the Disputed
Domain Name. Respondent Craig Schmidt (“Schmidt”) is the President/CEO of
Intelligolf. The Disputed Domain Name is used by Respondents to promote and sell
their sports-enhancing software. The Disputed Domain Name was initially registered
by Karrier Communications, Inc. (“Karrier”) on February 6, 2000. The evidence
suggests that Karrier transferred its rights in the Disputed Domain Name to Intelligolf
sometime in 2008.2 Intelligolf and Karrier appear to be affiliated entities; the WhoIs
information for the original Karrier registration and the current Intelligolf registration
both list Craig Schmidt (the President/CEO of both entities) as the Registrant Contact
and Administrative Contact. Karrier and Intelligolf also share the same address and
telephone number in the respective WhoIs listings.
This proceeding follows correspondence between the parties. Respondents‟
submissions, at Annex 15, include email correspondence dated November 21, 2005,
from Robert Rhodes, an owner of Intellogy Solutions, to Craig Schmidt. In his email,
Rhodes stated that Complainant had owned a federal registration for the trademark
INTELLOGY since October 2001, and owned the domain names <intellogy.biz>,
<intellogy.info>, <intellogy.net>, <intellogy.org>, and <intellogy.us>. Rhodes also
stated: “We‟re not actively using any of those domains for commerce, but I would like
to round out our ownership of the domains to help strengthen our Trademark position.”
Accordingly, Rhodes concluded by asking Schmidt whether he would be willing to sell
the <intellogy.com> domain name, since Rhodes‟ attorney has noted that Schmidt was
“not using <intellogy.com> for any viable trademarked usage.”
In reply to Rhodes‟ email, Jim Simpkins, a colleague of Schmidt, cited Karrier‟s
historic use of the Disputed Domain Name, that Karrier‟s Board of Directors “would
not be willing to sell the <intellogy.com> Domain Name,” and that Karrier may wish to
seek to invalidate Rhodes‟ other domain name registrations that incorporate the word
“intellogy,” based on Karrier‟s prior use of “Intellogy” in a domain name (Response
Annex 19). Simpkins noted that Rhodes explicitly stated in his earlier email, that none
Complainant did business as Gate City Technologies, LLC until December 15, 2005, at which time
Complainant‟s name was changed to Intellogy Solutions, LLC.
Complaint Annexes 11 and 12, domain history data from Domain Tools, show that on April 10, 2008,
<intellogy.com> was registered to Karrier Communcations. As of September 4, 2008, that registration
had been transferred to Intelligolf, Inc.
of the registered domain names were being used in commerce, and ended by asking
Rhodes how he proposed to mitigate the situation.
Further correspondence between the parties followed in 2009. On January 27, 2009,
Complainant‟s counsel, Domingo J. Rivera, sent Respondents a letter regarding their
alleged infringement of Complainant‟s INTELLOGY mark, and demanded transfer of
the Disputed Domain Name from Respondents to Complainant (Complaint Annex 13).
In Respondents‟ February 2, 2009 reply, Respondents explained Intelligolf‟s
June 1, 2007 acquisition of Karrier‟s domain names and other assets, and alleged that
the February 6, 2000 initial registration of the Disputed Domain Name significantly
predated Complainant‟s first use of the INTELLOGY mark in commerce.
Respondents‟ letter also asserted that “there was no way that Karrier Communications
would have known about the existence or intentions of [Complainant] prior to acquiring
the <intellogy.com> domain name,” and stated that Respondents‟ use of the Disputed
Domain Name would have been a matter of public record by the time Complainant
registered the INTELLOGY trademark in October 2001. In their letter, Respondents
also refuted the likelihood of consumer confusion, and offered to consider a settlement
proposal from Complainant, if received prior to February 17, 2009.
In an additional reply directly to Complainant, by handwritten note dated
February 2, 2009, Respondents stated: “If you would like to resolve this matter
personally, and potentially save yourself tens of thousands of dollars in legal fees, you
are welcome to contact me directly with your proposal by February 17, 2009.”
5. Parties’ Contentions
Trademark Registration and Use by Complainant
Complainant alleges that it has rights in the INTELLOGY trademark by virtue of
United States (“U.S.”) Registration Number 2,498,402. Complainant states that it
subsequently filed a Section 8 and 15 Affidavit of Use and Incontestability, which was
acknowledged by the USPTO on November 7, 2007.
Complainant alleges that it has used its mark in connection with the provision of
computer services, namely “hosting and maintaining the web sites of others on a
computer server for a global computer network since November 27, 2000.”
Complainant states that the homepage of its website is located at <www.intellogy.net>,
and shows the use of the INTELLOGY mark in commerce.
Identical Domain Name Used by Respondents
Complainant alleges that the second level domain of Respondents‟ domain name,
<intellogy.com>, is identical to Complainant‟s Trademark.
Respondents Have No Rights or Legitimate Interests to Disputed Domain Name
Complainant alleges that Respondents have no rights or legitimate interests in the
Disputed Domain Name, as “[n]o corporate records, website information, or Whois
information reflects any association of the Respondents with the „INTELLOGY‟
Trademark and the disputed domain name, except for the infringement as alleged
herein.” Further, Complainant asserts that <intellogy.com> does not reflect any name
by which the Respondents are commonly known or in which the Respondents have any
rights under paragraph 4(a)(ii) of the Policy.
Complainant further alleges that it never authorized or consented to Respondents‟ use
of the INTELLOGY trademark, or Respondents‟ registration of the <intellogy.com>
Complainant contends that the website to which <intellogy.com> resolves does not use
the INTELLOGY mark anywhere in the website‟s content, and is instead used to direct
visitors to Respondents‟ commercial website and e-store at “www.intelligolf.com”.
Bad Faith Registration and Use by Respondents
Complainant asserts that Respondents‟ use of the Disputed Domain Name evidences
their intent to confuse and mislead visitors searching for Complainant‟s website, by
directing them to Respondents‟ website, which yields direct commercial benefits for
Respondents, and evidences their bad faith registration and use of the Disputed Domain
Complainant alleges that, in 2008, Respondents transferred the Disputed Domain Name
from Karrier to IntelliGolf. As of that time, Complainant had been in continuous and
active operation of a website at the “www.intellogy.net” domain name for the seven
previous years. Complainant argues that Respondents‟ 2008 transfer of the Domain
Name demonstrates Respondents‟ bad faith registration of the Disputed Domain Name,
as both parties are from the U.S., and the Trademark registration was with the USPTO.
Complainant contends that Respondents‟ handwritten note of February 2, 2009
constituted an attempt to “bypass” Complainant‟s counsel, in order to sell the
<intellogy.com> domain name to Complainant for valuable consideration in excess of
out-of-pocket costs, and, thus, is further evidence of Respondents‟ bad faith.
Complainant therefore requests that the Panel issue a decision requiring
<intellogy.com> to be transferred to Complainant.
Identical Domain Name Used by Respondents
Respondents admit that the Domain Name <intellogy.com> is identical to the
INTELLOGY trademark in which Complainant asserts it has rights. Respondents
argue, however, that they have rights superior to and independent of Complainant in the
INTELLOGY trademark, and that such rights are publicly noted on the “Trademarks
Notice” page of their website.3
Respondents Have Rights and Legitimate Interests in the Disputed Domain Name
Respondents deny that they have no rights or legitimate interests in the Disputed
Domain Name under paragraph 4(a)(ii) of the Policy.
Respondents also argue that the INTELLOGY trademark is “significantly similar” to “Intellilogy,”
another term Respondents have used in marketing their sports-enhancing software products and
Respondents contend that they have used the Disputed Domain Name legitimately in
commerce since February 6, 2000, in connection with the promotion of their line of
sports-enhancing products and technology, which are marketed under an “intelli-”
family of products, namely: Intelligolf, Intelligames, Intellitimer, Intelliswim, and
Respondents explain at Section III of Annex A that their use of the word “intellogy” to
describe their services, resulted from a contraction of their trademark INTELLIGOLF
and “technology.” Respondents state that they initially used the term “intellilogy,” but
also began using the term “intellogy” in October 1999, following the recommendation
of Michael E. Bryant, who suggested the change for ease of pronunciation and because
he preferred the spelling of “intellogy” to “intellilogy” (see Response Annex 7,
October 7, 1999 email to Craig Schmidt and Jim Simpkins and the October 21, 2009
Declaration of Bryant in Support of Respondent).
Respondents allege that their use of the Disputed Domain Name predates
Complainant‟s December 8, 2000 filing for the INTELLOGY trademark, and also
predates Complainant‟s registration and use of any other Intellogy domain names,
including <intellogy.net>, <intellogy.org>, <intellogy.info>, and <intellogy.biz>.
Domain History and WhoIs Search Results indicate that the Disputed Domain Name
was created on February 6, 2000, whereas Complainant‟s <intellogy.net> Domain
Name was created on November 20, 2000, and Complainant‟s <intellogy.info>,
<intellogy.org>, and <intellogy.biz> domain names were created on April 1, 2002
(Response Annex 17).
In reference to Rhodes‟ November 21, 2005 email on behalf of Complainant,
Respondents allege that Complainant admitted at that time that Complainant did not use
any of the Intellogy domain names in commerce. Respondents aver that, in response to
Complainant‟s email, they asserted their rights to and legitimate interests in the
<intellogy.com> domain name, and communicated to Complainant their desire to
resolve the matter, but did not receive a response.
Respondents allege that the Disputed Domain Name was legitimately assigned from
Respondent Schmidt in his individual capacity, to Respondent Intelligolf on
June 1, 2007, when Schmidt‟s business was converted from a sole proprietorship to a
corporation under the laws of Delaware. Respondents allege that such assignment was
proper, complete, and merely “a legal formality.”
Denial of Bad Faith Registration and Use by Respondents
Respondents deny that they registered or are using the Disputed Domain Name in bad
faith. They cite their willingness to communicate with Complainant to work toward a
solution as evidence of their good faith in using the Disputed Domain Name.
Respondents deny Complainant‟s claim that they attempted to “bypass” Complainant‟s
counsel through their reply letter of February 2, 2009. Respondents contend that
Complainant was merely carbon copied on a letter that was directed to Complainant‟s
counsel. Respondents further argue that the letter to Complainant did not constitute an
offer to sell the <intellogy.com> domain name to Complainant; rather, Respondents
claim, the letter was an attempt to resolve the matter without resort to litigation.
Respondents further assert that they cannot be found to have registered the Disputed
Domain Name in bad faith because they were unaware of Complainant at the time they
Registered the Disputed Domain Name. Respondents aver that neither Complainant‟s
Trademark, nor Complainant‟s other Intellogy domain names existed at the time of
Respondents‟ initial <intellogy.com> registration.
Complainant’s Bad Faith and Reverse Domain Name Hijacking
Respondents allege that Complainant‟s failure to contact Respondents prior to its
registration of <intellogy.net>, <intellogy.org>, <intellogy.info>, and <intellogy.biz>
domain names, given Respondents‟ prior registration and ownership of the Disputed
Domain Name, is evidence of Complainant‟s bad faith.
Respondents further argue that they were prejudiced as a result of Complainant‟s
failure to bring this claim in a timely manner, which Respondents offer as additional
evidence of bad faith on the part of Complainant.
Respondents allege that they were subject to an attempt at Reverse Domain Name
Hijacking (“RDNH”) by Complainant, through Complainant‟s effort to harass the
Respondents into relinquishing their rights to the Disputed Domain Name.
Respondents therefore request that the Panel find that “Complainant has no lawful right
to own or use any form of the Intellogy or Intellogy Solutions domain names,” and that
“the Complainant [ ] be ordered by the Panel to immediately cease and desist the use of
any Intellogy-related domain names.”
Request for Laches and Sanctions
Respondents invoke the doctrine of laches to argue that Complainant‟s requested
remedy should be precluded. Respondents also contend that Complainant‟s claim was
brought in the effort to harass Respondents, as Complainant has no legitimate right to
the Disputed Domain Name. As a remedy for that harassment, Respondents ask that
sanctions be levied against Complainant‟s counsel, Domingo J. Rivera, for the purpose
of preventing the “harassment [of] and loss of business time and money [by]” other
6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant has the burden of proving that:
(i) The Domain Name is identical or confusingly similar to a Trademark or
service mark in which the Complainant has rights; and
(ii) The Respondents have no rights or legitimate interests in respect of the
Domain Name; and
(iii) The Domain Name has been registered and used in bad faith.
Failure to prove any one of these factors is fatal to the Complaint.
A. Identical or Confusingly Similar
Complainant has demonstrated its rights in the trademark INTELLOGY by virtue of its
federal registration (Complaint Annex 5), which is valid and subsisting given the
USPTO‟s acceptance of Complainant‟s 2007 Section 8 and Section 15 Declaration
(Complaint Annex 7). This registration constitutes prima facie evidence of the validity
of Complainant‟s trademark.
Respondents‟ argument that it has prior rights in the INTELLOGY trademark (and also
in INTELLILOGY) and that Complainant‟s registration is therefore “inappropriate” is
unavailing. Even if Respondents did establish rights in the INTELLOGY mark prior to
Complainant, that does not mean that Complainant‟s mark is “inappropriate” or should
be disregarded by the Panel. These marks may be able to coexist given the different
goods and services offered by the parties. At the minimum, the Panel concludes that
Respondents has failed to present the necessary “compelling” evidence that
Complainant‟s trademark registration should be deemed invalid. No Zebra Network
Ltda v. Baixaki.com, Inc., WIPO Case No. D2009-1071 (October 26, 2009).
As Complainant and Respondents agree, the <intellogy.com> domain name is identical
to the INTELLOGY trademark. Complainant has therefore sustained its burden under
the first factor of paragraph 4 of the Policy.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondents may establish rights to or
legitimate interests in the Disputed Domain Name by demonstrating any of the
(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.
Although the Policy addresses ways in which a respondent may demonstrate rights or
legitimate interests in a disputed domain name, it is well-established that the burden of
proof remains on the Complainant to prove an absence of rights or a legitimate interest.
Commune of Zermatt and Zermatt Tourismus v. Activelifestyle Travel Network, WIPO
Case No. D2007-1318 (October 29, 2007); Asian World of Martial Arts Inc. v. Texas
International Property Associates, WIPO Case No. D2007-1415 (December 10, 2007);
Document Technologies, Inc. v. International Electronic Communications, Inc., WIPO
Case No. D2000-0270 (June 6, 2000); WIPO Overview of WIPO Panel Views on
Selected UDRP Questions § 2.1. Panels, however, have long recognized the inherent
difficulties of proving a negative. Worldwide Pants Inc. v. VisionLink Communications
Group, Inc., WIPO Case No. D2008-1796 (February 10, 2009). Accordingly, panels
generally require the complainant to come forward with a prima facie showing that
respondent has no rights or legitimate interests; thereafter, the burden of production
shifts to respondent, even though the burden of proof always remains on the
complainant. Asian World of Martial Arts Inc. supra.
Complainant has made the requisite prima facie showing in this case. The burden of
coming forward with evidence of rights or a legitimate interest thus shifts to
Respondents. To satisfy that burden, Respondents have submitted voluminous
evidence that, they assert, establish their rights and legitimate interests in the Disputed
In considering Respondents‟ evidence, there is a threshold issue of whether to consider
only the use by the current registrant, Intelligolf, or whether the Panel also may
consider the use by the former registrant, Karrier. Generally, a transfer of ownership of
a domain name constitutes a new registration, and panels typically look only at the
claimed rights and interests of the current registrant in determining whether that
registrant has rights or legitimate interests. WIPO Overview of WIPO Panel Views on
Selected UDRP Questions; No Zebra Network Ltda v. Baixaki.com, Inc., WIPO Case
No. D2009-1071 (October 26, 2009); Daimler AG v. William Wood, WIPO Case No.
D2008-1712 (February 25, 2009); Substance Abuse Management, Inc. v. Screen Actors
Modesl [sic] International, Inc. (SAMI), WIPO Case No. D2001-0782
(August 14, 2001.) Here, though, Respondents have made a compelling showing that
the transfer did not effect any material change in the beneficial ownership of the
domain name, since Schmidt, who was named as the administrative contact in both
registrations, was the CEO of both Karrier and Intelligolf, which are affiliated entities.4
Moreover, Respondents have shown that their use of the Disputed Domain Name
throughout these years has consistently promoted their Intelligolf and related sports and
technology products. Thus, the Panel concludes that it is appropriate, on the facts of
this case, to consider Respondents‟ and the prior, related registrants‟ rights and interests
in the Disputed Domain Name.
Although Respondents are not commonly known by the name “Intellogy,” Respondents
have established that they market and offer for sale a range of software products that
begin with “intelli-,” including Intelligolf, Intelligames, Intellitimer, Intelliswim, and
IntelliGPS, and that they use the INTELLOGY designation as an umbrella designation
for their INTELLIGOLF technology. See Response Annex 8 (marketing materials
showing use of the INTELLOGY designation since at least 1999). Indeed,
Respondents assert that they registered the Disputed Domain Name because it is a
contraction of their trademark INTELLIGOLF (which has been registered with the
USPTO since 1999) and “technology,” and that they did so in their effort to market and
sell the above-named sports-enhancing software. See Afrisport Intellectual Property
(PTY) Ltd. v. Domainsonoffer.com, WIPO Case No. D2007-1449 (November 26, 2007)
(finding the use of a potentially descriptive contraction to be permissible).
Respondents‟ assertion that they have used the INTELLOGY designation in this way is
credible given that Respondents market and sell an entire family “intelli-” named
software products and technology.5
Given the strength of Respondents‟ showing, the Panel finds that the Respondents had
and continue to have rights and legitimate interests in the Disputed Domain Name, and
that they have used the Disputed Domain Name in connection with a bona fide offering
of goods or services.
Respondents assert that Schmidt, a sole proprietor, was “doing business as” Karrier Communications, and
that on May 31, 2007, the owners of the sole proprietorship, Bryant, Simpkins, and Schmidt,
mutually formed Intelligolf, Inc., a sub-chapter S corporation, and accordingly transferred their rights,
title, and interests to Intelligolf, Inc.
Even if the Panel disregarded Karrier‟s prior use of the Disputed Domain Name and focused solely on the
current Respondents‟ use, the Panel would still find that Respondents have demonstrated rights and
legitimate interests in the Disputed Domain Name given their use of the Disputed Domain Name since
their acquisition of it in 2008 in connection with a bona fide offering of goods and services under the
INTELL- family of marks. See, e.g ,Response Annex 14, page 7 (2009 presentation showing use of the
INTELLOGY designation, as a contraction of INTELLIGOLF and technology).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy enumerates four, non-inclusive circumstances that, 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 the 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) 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) respondent has registered the domain name primarily for the purpose of
disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to
attract, for commercial gain, Internet users to respondent‟s website or
other on-line location, by creating a likelihood of confusion with the
complainant‟s mark as to the source, sponsorship, affiliation, or
endorsement of respondent‟s website or location or of a product or service
on respondent‟s website or location.
Complainant has failed to prove that any of these circumstances are present in this case,
or that Respondents otherwise registered and used the Disputed Domain Name in bad
As was the case with respect to the rights and legitimate interests factor addressed
above, it is necessary to determine whose bad faith is at issue in the instant case.
Because the acquisition by Intelligolf, the current registrant, constitutes a new
registration, it is appropriate to consider Intelligolf‟s intentions and knowledge at the
time of the registration. No Zebra Network Ltda v. Baixaki.com, Inc., WIPO Case
No. D2009-1071 (October 26, 2009).
Because the parties had corresponded in 2005, Respondents were aware of
Complainant and its trademark at the time that they acquired the Disputed Domain
Name from Karrier in 2008. Such knowledge, however, is not of itself determinative of
bad faith. That is because Karrier had been making a legitimate use of the Disputed
Domain Name, and Respondents have persuasively showed that they believed they had
the right to continue to make that use. Thus, it is evident that Respondents did not
acquire the Disputed Domain Name for the purpose of selling it to the Complainant (the
offer to sell a domain name in which a registrant has rights is not necessarily indicative
of bad faith, Etam, plc v. Alberta Hot Rods, WIPO Case No. D2000-1654), did not
acquire the Disputed Domain Name to prevent Complainant from reflecting its
INTELLOGY trademark in a domain name (and, it is worth noting, Complainant
already has registered several intellogy-based domain names), did not acquire the
Disputed Domain Name to disrupt the business of Complainant (who does not appear to
be a competitor of Respondents), and did not acquire the Disputed Domain Name to
profit from confusion with Complainant and its mark. To the contrary, Respondents
acquired this domain name to continue to promote their INTELLIGOLF technology,
which they long had marketed and continued to market under the designation
Complainant has thus failed to establish that Respondents registered and used the
Disputed Domain Name in bad faith.
7. Reverse Domain Name Hijacking
Respondents have requested a finding of Reverse Domain Name Hijacking (“RDNH”),
which is defined as “using the Policy in bad faith to attempt to deprive a registered
domain-name holder of a domain name.” Rules, paragraph 1. Although Complainant
has not succeeded in this proceeding, the Panel finds that Complainant has not
A finding of RDNH is appropriate “if Complainant knew of Respondent‟s unassailable
right or legitimate interest in the disputed domain name or the clear lack of bad faith
registration and use and nevertheless brought the Complaint in bad faith.” Futureworld
Consultancy (pty) Ltd. v. Online Advice, WIPO Case No. D2003-0297 (July 18, 2003).
AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L. v. Enspire
Technologies (PVT) Ltd., WIPO Case No. D2008-1471 (December 17, 2008). That
standard is not met in this case.
The Panel rejects Respondents‟ argument that Complainant must have acted in bad
faith because it has no rights in the INTELLOGY trademark. Complainant‟s
incontestable federal registration is powerful evidence of Complainant‟s trademark
rights, and its rights to use the INTELLOGY trademark and related domain names. As
discussed above, Respondents‟ prior use of the INTELLOGY mark for unrelated
services does not vitiate Complainant‟s trademark rights.
Moreover, the Panel notes that Respondents have not sought to register INTELLOGY
as a trademark and do not appear to use that mark on the home page of their
<intellogy.com> website. Furthermore, there is no evidence that Respondents had
previously disclosed to Complainant the materials it submitted as part of this
proceeding. Thus, prior to filing the Complaint, Complainant had no actual knowledge
of Respondents‟ prior use of the INTELLOGY mark in connection with its Intelligolf
technology goods and services.
Once all the evidence was submitted, the Panel determined that Complainant failed to
sustain its burden under paragraph 4 of the Policy, but Complainant‟s conduct in filing
the Complaint was not so abusive as to constitute RDNH. Complainant owned an
incontestable registration, Respondents had no registration, and Respondents did not
seem to be making any legitimate use of the INTELLOGY mark on the home page of
its website. Moreover, although the Panel understands that Respondents‟ offer to try to
settle this dispute was a good faith effort to avoid the expense and inconvenience of
litigation, Complainant had a basis for suspecting bad faith when Respondents hinted
that they were willing to sell the Disputed Domain Name to Complainant at a profit.
In sum, though Complainant ultimately did not prevail, the Panel concludes that it did
not bring the Complaint in bad faith. Accordingly, the Panel denies Respondents‟
request that the Panel find Complainant guilty of RDNH.
For all the foregoing reasons, the Complaint is denied. The Panel declares that the
Complaint was not brought in bad faith and does not constitute Reverse Domain Name
David H. Bernstein
Dated: November 24, 2009