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WIPO Domain Name Dispute Case

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WIPO Domain Name Dispute Case Powered By Docstoc
					                WIPO Arbitration and Mediation Center

                       ADMINISTRATIVE PANEL DECISION

                   The Little Gym International, Inc. v. Domainstuff.com

                                  Case No. D2003-0466




1.   The Parties

     The Complainant is The Little Gym International, Inc., a Delaware Corporation with its
     principle place of business at Scottsdale, Arizona, United States of America,
     represented by Dorsey & Whitney LLP of United States of America.

     The Respondent is DomainStuff.com of Del Mar, California, United States of America,
     represented by Michael P. Eddy of United States of America.


2.   The Domain Name and Registrar

     The disputed domain name <littlegym.com> is registered with eNom, Inc.


3.   Procedural History

     The Complaint was filed with the WIPO Arbitration and Mediation Center (the
     “Center”) on June 17, 2003. On June 18, 2003, the Center transmitted by email to
     eNom, Inc. a request for registrar verification in connection with the domain name at
     issue. On June 23, 2003, eNom, Inc. transmitted by email to the Center its verification
     response confirming that the Respondent is listed as the registrant.

     The Center verified that the Complaint satisfied the formal requirements of the Uniform
     Domain Name Dispute Resolution Policy (the “Policy”), 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 July 2, 2003. In
     accordance with the Rules, paragraph 5(a), the due date for Response was
     July 22, 2003. The Response was filed with the Center on July 23, 2003.



                                           page 1
     The Center appointed Gaynell Methvin as the Sole Panelist in this matter on
     July 29, 2003. 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.

     The Panel requested and was granted an extension of the due date of the decision until
     August 21, 2003.


4.   Factual Background

     The following facts are undisputed:

     4.1   Complainant has obtained U.S. Trademark Registration Nos. 1,837,113
           (registered in 1994 for service mark for children‟s fitness classes offered
           since 1980); 2,057,340 (registered in 1997 for franchising services for operations
           related to exercise instruction services offered since 1995); 2,069,466 (registered
           in 1997 for instruction in field of exercise and motor development since 1995);
           and 2,522,810 (registered in 2001, for musical sound recordings featuring
           physical exercise music offered since 1980 and for clothing, including T-shirts,
           shorts, Karate uniforms, etc. offered since 1976) for THE LITTLE GYM Mark.
           Complainant also owns and maintains international registrations for THE
           LITTLE GYM marks as follows: French Registration Nos.: 82687399 and
           82687699; Japanese Registration No.: 3341899; and Venezuelan Registration
           Nos.: S-017954 and S-017955; Canadian Registration No.: TMA-432548 for
           goods and services similar to those related to the U.S. registrations. In addition to
           the foregoing trademark registrations, Complainant owns a Community
           Trademark Application and various other international trademark applications for
           THE LITTLE GYM Marks, for similar goods and services.

     4.2   Complainant owns numerous domain name registrations comprised of the term
           LITTLEGYM, including, among others, <littlegym.info>; <littlegym.biz>; and
           <thelittlegym.com>.

     4.3   Respondent registered the domain name, <littlegym.com>, with eNom, Inc. on
           September 7, 2000.


5.   Parties’ Contentions

     A.    Complainant

     5.A.1 Respondent‟s <littlegym.com> domain name is nearly identical and confusingly
           similar to trademarks in which the Complainant has rights (Policy 4(a)(i);
           Rules 3(b)(viii) and (b)(ix)(1)). Complainant‟s position on this issue is based on
           its lengthy use of THE LITTLE GYM trademarks and service marks for exercise
           and motor development instruction services for children featuring gymnastics,
           swimming, karate and exercise classes for over 20 years in the United States.
           In 1992, Complainant began using its trademarks internationally. In addition to
           significant amounts of use throughout the U.S. and abroad, Complainant owns
           extensive trademark and service mark registrations and applications for THE
           LITTLE GYM, THE LITTLE GYM (Stylized) and THE LITTLE GYM (Design)
           (collectively, “THE LITTLE GYM Marks”). Complainant also provides musical

                                            page 2
     sound recordings; prerecorded audio cassette, compact discs and phonographs
     featuring physical exercise music; clothing; and franchising systems under THE
     LITTLE GYM Marks. Collectively, these goods and services are referred to as
     “The Little Gym Goods and Services.”

     Complainant‟s rights in THE LITTLE GYM Marks have been further amplified
     by extensive use, advertising and publicity since the infancy of their use in 1982.
     Complainant is a franchisor, which provides physical fitness, recreational
     gymnastic, motor skills development and other related programs for children
     throughout the United States, Canada, Belgium, United Kingdom of Great Britain
     and Northern Ireland, France, Japan, Kuwait, Luxembourg, Netherlands,
     Philippines, Puerto Rico, Singapore, Spain, Sweden and Thailand. As a result of
     the quality of Complainant‟s products and services, the tremendous volume of
     sales of goods and services under THE LITTLE GYM Marks and the extensive
     promotion and advertisement of these marks, the THE LITTLE GYM Marks are
     famous, have acquired substantial goodwill belonging exclusively to
     Complainant, and are recognized as an indicia of origin with Complainant
     worldwide.

5.A.2 The similarities between THE LITTLE GYM Marks and the <littlegym.com>
      domain name are phonetically and visually obvious. Indeed, the disputed domain
      name is nearly identical to Complainant‟s THE LITTLE GYM Marks but for the
      generic extension “.com” and the addition of the word “the” in Complainant‟s
      marks. These minor distinctions do nothing to diminish the confusing similarity
      between the THE LITTLE GYM Marks and the <littlegym.com> domain name.
      See The Sportsman’s Guide, Inc. v. JoyRide, WIPO Case No. D2003-0153
      (May 19, 2003); Harrods Limited v. Surrinder Gill, WIPO Case No. D2003-0243
      (May 23, 2003); Dollar Financial Group, Inc. v. Same, NAF Case No. FA94734,
      cited in Micron Electronics, Inc. v. New World Concepts, Inc., WIPO Case No.
      D2001-0225 (June 20, 2001). Accordingly, the disputed domain name
      <littlegym.com> is nearly identical and confusingly similar to the THE LITTLE
      GYM Marks in which the Complainant has rights.

5.A.3 Respondent has no rights or legitimate interests in respect of the disputed domain
      name. First, any use by the Respondent of the disputed domain name is not in
      connection with a bona fide offering of goods or services. Second, the
      Respondent is not making a legitimate noncommercial or fair use of the disputed
      domain name. Rather, Respondent is actively seeking commercial gain by
      misleadingly diverting consumers to the “www.littlegym.com” website. Third,
      the Respondent is not commonly known by the <littlegym.com> domain name.
      Rather, the Respondent is known as DomainStuff.com. In support of each of
      these allegations, Complainant offers the following:

     (i)   Respondent‟s use of <littlegym.com> to divert Internet users searching for
           Complainant‟s website is not in connection with a bona fide offering of
           goods or services pursuant to Policy paragraph 4(c)(i), nor is it a legitimate
           noncommercial or fair use of the domain name under Policy
           paragraph 4(c)(iii). Federal National Mortgage Association, dba Fannie
           Mae v. DomainStuff.com, FA0206000114620 (NAF July 29, 2002) (finding
           DomainStuff.com‟s, the same Respondent in this proceeding, use of
           “www.fannimae.com” to divert Internet users searching for Complainant‟s
           website was not in connection with a bona fide offering of goods or services
           nor was it a legitimate noncommercial or fair use of the domain name).
           Here, the Respondent has directed the <littlegym.com> domain name to a

                                      page 3
            website allegedly offering “Little Gym Fitness Products.” Complainant‟s
            attempts to purchase products under the “fitness” link results in an “error”
            message. Offering goods for sale that do not exist is not bona fide.
            Regardless, bona fide use does not exist when the intended use is a
            deliberate infringement of another‟s rights, as here. See Chanel, Inc. v.
            Cologne Zone, WIPO Case No. D2000-1809 (February 22, 2001). Finally,
            use that intentionally trades on the fame and goodwill associated with
            another cannot constitute a bona fide offering of goods or services. See Id.;
            Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com,”
            WIPO Case No. D2000-0847 (October 12, 2000). To find otherwise would
            mean that respondents like DomainStuff.com could rely on intentional
            infringement to demonstrate a legitimate interest, an interpretation that is
            obviously contrary to the intent of the Policy. Chanel, Inc. v. Cologne
            Zone, WIPO Case No. D2000-1809 (WIPO February 22, 2001); Madonna
            Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com,” WIPO Case
            No. D2000-0847 (WIPO October 12, 2000).

     (ii)   DomainStuff.com is attempting to misleadingly divert consumers for
            potential commercial gain while tarnishing Complainant‟s marks. This
            tarnishment and misleading diversion of consumers is not a legitimate
            noncommercial or fair use of Complainant‟s well known and famous marks
            nor is its use made in connection with a bona fide offering of goods or
            services. Policy paragraphs 4(c)(i) and 4(c)(iii).

     (iii) Complainant is not aware of any evidence that suggests the Respondent is
           commonly known by the <littlegym.com> domain name. There is no
           relationship between Complainant and Respondent. Respondent is not a
           licensee of Complainant, nor has Respondent otherwise obtained
           authorization to use Complainant‟s THE LITTLE GYM Marks. There is no
           connection between Respondent and THE LITTLE GYM Marks. And
           since Complainant has used its THE LITTLE GYM family of marks
           exclusively for at least 20 years, and their use indicates on obvious
           connection with Complainant, there is a presumption that Respondent does
           not have rights or legitimate interests in a domain name that incorporates a
           confusingly similar variation of Complainant‟s THE LITTLE GYM Marks.
           See Gallup Inc. v. Amish Country Store, FA 96209
           (NAF January 23, 2001); see also Compagnie de Saint Gobain v.
           Com-Union Corp., WIPO Case No. D2000-0020 (March 14, 2000). In fact,
           Respondent‟s “About Us” page does not provide any corporate or entity
           identifiers. Rather, clicking on Respondent‟s “About Us” link directs you
           to a page that states: “Little Gym fitness and gym products lets you get fit
           for less!” So not only is Respondent not commonly known by the
           <littlegym.com> domain name, it is deciding to remain anonymous as to
           who owns the <littlegym.com> domain name, which not only goes to the
           lack of a legitimate interest in the domain name, but it goes to prove bad
           faith.

5.A.4 Respondent registered and is using the disputed domain name in bad faith
      pursuant to paragraph 4(b)(iv) of the Policy. In support of this position
      Complainant argues the following:

     (i)    Respondent is intentionally attempting to attract, for commercial gain,
            Internet users to an on-line location, by creating a likelihood of confusion
            with the Complainant‟s mark as to the source, sponsorship, affiliation, or

                                       page 4
       endorsement of the location or of a product or service at that location.
       Respondent‟s attempt to intentionally attract Internet users to the existing
       “www.littlegym.com” website for commercial gain, by creating a likelihood
       of confusion with Complainant‟s mark is bad faith. Federal National
       Mortgage Association, dba Fannie Mae v Domain Stuff.com,
       FA0206000114620 (NAF July 29, 2002). Respondent‟s intentional
       attempts, for commercial gain, to attract Internet users to the current on-line
       location at “www.littlegym.com” is more egregious than the more common
       cybersquatter tactic of linking a disputed domain name to a pornographic or
       gambling site because the likelihood of confusion is much higher due to the
       Respondent‟s attempt to offer “Little Gym Fitness Products.” Therefore, by
       using the disputed domain name, Respondent is intentionally attempting to
       attract, for commercial gain, Internet users via the <littlegym.com> domain
       name by creating a likelihood of confusion with Complainant‟s marks as to
       source, sponsorship, affiliation, or endorsement of the domain name and by
       offering “Little Gym fitness products” on those pages. Enhancing the
       confusion is the fact that Respondent‟s “About Us” page reveals no entity
       identifying information. To the contrary, clicking on the “About Us” link
       directs you to a page that states “Little Gym‟s fitness and Gym products lets
       you get fit for less!”

(ii)   Similar to the Chanel decision, Respondent‟s proposed use of the domain
       name will necessarily result in a likelihood of confusion with Complainant
       as to source, sponsorship, affiliation or endorsement of Respondent‟s
       website. In short, Internet users will be “baited” to Respondent‟s site by the
       use of Complainant‟s well-known mark, then potentially “switched” to
       other similar goods and services. Courts have long recognized that such
       conduct is not permitted. See Brookfield Communications, Inc. v. West
       Coast Entertainment, 174 F.3d 1036 (9th Cir. 1999). Because Respondent
       knows (at least constructively) of Complainant‟s mark and is apparently
       trying to operate in the fitness industry, it cannot avoid liability under the
       Policy by pleading that it does not intend to cause the obvious and
       inevitable results of its deliberate actions. Chanel Inc. v. Cologne Zone,
       WIPO Case No. D2000-1809 (WIPO February 22, 2001).

(iii) Respondent had constructive notice of Complainant‟s rights at the time it
      registered <littlegym.com> on September 9, 2000. As set forth above,
      Complainant owns various registrations for its THE LITTLE GYM Marks
      listed on the Principal Register of the USPTO and other countries
      throughout the world and has used the mark since 1982. Complainant‟s
      THE LITTLE GYM Marks have been extensively used in connection with
      significant dollars extended in advertising. Based on the foregoing and the
      fact that Respondent‟s registration of the infringing domain name was
      undoubtedly done because of the recognition associated with Complainant‟s
      marks, it can be inferred that Respondent had knowledge of Complainant‟s
      rights in the THE LITTLE GYM Marks. Federal National Mortgage
      Association, dba Fannie Mae v. Domain Stuff.com, FA0206000114620
      (NAF July 29, 2002). Respondent‟s subsequent registration of the disputed
      domain name, despite knowledge of Complainant‟s pre-existing rights in
      the THE LITTLE GYM Marks, evidences bad faith registration pursuant to
      Policy paragraph 4(a)(iii). See Victoria’s Cyber Secret Ltd. P’ship v.
      V Secret Catalogue, Inc., 161 F.Supp.2d 1339, 1349 (S.D. Fla. 2001); see
      also Samsonite Corp. v. Colony Holding, FA 94313 (NAF).


                                  page 5
     (iv) Similar to the Fannie Mae decision against DomainStuff.com, the
          registration of Complainant‟s famous mark with the insignificant variation
          of the disclaimed word “the” represents a variety of typosquatting. And it
          is well settled that the Panelist may look to other indicators of bad faith not
          delineated in the Policy. The practice of “typosquatting” has been
          recognized as a bad faith use of a domain name under the Policy. See Alta
          Vista Company v. Stoneybrook aka Stonybrook Investments, WIPO Case
          No. D2000-0886 (October 26, 2000) (awarding <wwwalavista.com>,
          among other misspellings of <altavista.com>, to Complainant); see also
          Dow Jones & Company and Dow Jones L.P. v. Powerclick, Inc., WIPO
          Case No. D2000-1259 (December 1, 2000) (awarding domain names
          <wwwdowjones.com>, <wwwwsj.com>, <wwwbarrons.com> and
          <wwwbarronsmag.com> to Complainants).

     (v)   Finally, DomainStuff.com has previously been the Respondent in a
           Uniform Domain Name Dispute Resolution proceeding where the domain
           name was transferred for violating the Policy. Federal National Mortgage
           Association, dba Fannie Mae v. Domain Stuff.com, FA0206000114620
           (NAF July 29, 2002). A pattern is developing by virtue of these UDRP
           decisions filed against Respondent for the bad faith registration of domain
           names in which it has no rights. This conduct is also evidence of bad faith.

B.   Respondent

5.B.1 Whether the domain name is identical of confusingly similar

     Although Respondent does not deny that Complainant has registration for several
     trademarks, he disputes the applicability of these marks to the present action. In
     particular:

     (i)   Respondent argues that Complainant‟s marks relate to a different class of
           goods or services than the Respondent‟s class of services;
     (ii) Respondent has a common law trademark in the name since
           September 2000 for on-line retail store offering fitness related products;
     (iii) Claimant‟s trademark registration disclaims use of “Gym,” and
           Complainant has no claim to exclusive use of dictionary terms;
     (iv) Complainant could have filed for trademark in 1980 and failure to do so
           shows Complainant‟s bad faith and proves Complainant is attempting to
           reverse domain name hijack Respondent‟s domain name.

     The fact that Complainant has numerous domain name registrations that include
     the words “little gym” is irrelevant.

     Respondent has not had time to gather evidence to dispute Claimant‟s claim to
     have expended money on its business.

5.B.2 Whether Respondent has rights or legitimate interest in domain name

     Respondent denies Complainant has rights to exclusive use of marks for all
     classes of goods and services since Complainant‟s marks are for specific services
     and Complainant has disclaimed use of “Gym” in majority of marks.

     Respondent does not deny that there are similarities between Complainant‟s
     marks and Respondent‟s domain name.

                                      page 6
           Respondent asserts that it uses its domain name in connection with bona fide
           offering of services and argues that Complainant‟s contention that the site only
           results in “error” messages is the result of Complainant‟s manipulation of site to
           cause such message. Respondent contends the site does work to offer goods and
           services shown at site. Respondent points to site itself as evidence on this point.

           Respondent denies Complainant‟s contention that Respondent is not known by
           <littlegym.com> domain name since Respondent has been operating its website
           at this domain since September 2000.

           Respondent disclaims any connection between Respondent and WIPO case cited
           by Complainant that relates to domain name <fanniemae.com>.

     5.B.3 Whether the domain name was registered and used in bad faith

           Respondent argues that Complainant has failed to prove the facts necessary to
           support its position on bad faith as Complainant‟s arguments have no basis in
           fact. Respondent denies it is intentionally diverting Internet users to its site.
           Respondent points out that it has specifically advised that its website is not for
           sale.

           Respondent argues that Complainant does not own a monopoly on all uses of
           “little gym,” that Complainant cannot own the right to use terms for fitness
           products as the mark is descriptive and generic as to fitness and gym related
           products and services.

           Respondent states that Complainant‟s registrations show Complainant
           deliberately attempts to avoid problems pointed out in last paragraph by the way
           it describes its services and goods.

           There is no proof that Respondent had any prior knowledge of Complainant
           having any rights in the class of goods offered by Respondent and connected to
           Respondent‟s domain name. Further, Respondent states that it does not offer
           either musical instruments or clothing at its site with the “littlegym” mark
           present.

           Complainant is guilty of attempting to offer misleading evidence to the Panel to
           support its bad faith allegations and such offerings are proof of Complainant‟s
           efforts to reverse hijack Respondent‟s domain name.


6.   Discussion and Findings

     The Rules, at paragraph 15(a) require the Panel to decide on the basis of the statements
     and documents submitted in accordance with the Policy, the Rules and any rules and
     principles of law that it deems applicable.

     In accordance with paragraph 4(a) of the Policy, the Complainant bears the onus of
     proof and must establish:

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


                                            page 7
      (ii)   that the Respondent has no rights or legitimate interests in respect of the
             domain name;

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

6.1   Identical or Confusingly similar to the Complainant’s Service and
      Trademark Rights

      The Panel will first consider the Complainant‟s common law rights in its marks,
      Paragraph 4(a)(i) of the Policy.

      In The British Broadcasting Corporation v. Jaime Renteria, WIPO Case No.
      D2000-0050 (March 23, 2000), the Panel addressed the question of unregistered
      trademarks and stated at page 6 of the decision:

             “This Administrative Panel acknowledges that the Uniform Policy in
             paragraph 4(a)(i) refers merely to a „trademark or service mark‟ in which
             the Complainant has rights, and in particular does not expressly limit the
             application of the Uniform Policy to a registered trademark or service mark
             of the Complainant. Further, this Administrative Panel recognizes that the
             WIPO Final Report on the Internet Domain Name Process (The
             Management of Internet Names and Addresses: Intellectual Property
             issues, April 1999), from which the Uniform Policy is derived, does not
             distinguish between registered and unregistered trademarks and service
             marks in the context of abusive registration of domain names. It is
             therefore open to conclude that the Uniform Policy is applicable to
             unregistered trademarks and service marks.”

      In Bennett Coleman & Co. Ltd. v. Steven S. Lawani and Bennett Coleman & Co.
      Ltd. v. Long Distance Telephone Company, WIPO Consolidated Cases Nos.
      D2000-0014 and D2000-0015 (March 11, 2000), the Panel stated at page 4 of the
      decision:

             “The Respondents have also asserted that the Complainant‟s
             Indian trademarks are no longer registered. Whether or not that
             is so, it is clear that the Complainants have a very substantial
             reputation in their newspaper titles arising from their daily use
             in hard copy and electronic publication. In India itself
             wrongfully adopting the titles so as to mislead the public as to
             the source of publications or information services would in all
             likelihood amount to the tort of passing off. As is already
             stated, it is this reputation from actual use which is the nub of
             the complaint, not the fact of registration as trademarks.”

      Referring to the above decisions, in SeekAmerica Networks Inc. v. Tariq Masood
      and Solo Signs, (WIPO Case No. D2000-0131 (April 13, 2000), the Panel
      accepted that the Rules do not require that the Complainant‟s trademark or
      service mark be registered by a government authority or agency for such rights to
      exist.

      This Panel accepts the reasoning of the above decision.

      In connection with Complainant‟s common law trademark rights, the Panel finds
      that Complainant‟s U.S. trademark registration 2,522,810 establishes that

                                        page 8
      Complainant has been using the mark THE LITTLE GYM in connection with the
      sale of musical sound recordings which feature physical exercise music since
      June 1980 and in connection with clothing, including Karate uniforms since
      September 1976. Accordingly, Complainant has had undisputed common law
      trademarks rights in the mark THE LITTLE GYM for such goods for over
      20 years.

      In addition to the above-referenced common law trademark rights, Complainant
      has also conclusively established that it owns U.S. and numerous foreign
      registered trade and service marks in the words THE LITTLE GYM (words only
      and in designs) in connection with the offering of physical fitness classes for
      children (registered in U.S. in 1994) and in connection with the offering of
      franchises for such services (registered in U.S. in 1997). Complainant‟s
      registrations in numerous foreign countries date from 1994 to 2001. It is also
      uncontested that Complainant uses its marks in connection with the Little Gyms,
      which operate at 114 sites in the U.S. and 17 sites in 15 foreign countries.

      Complainant offers no hard evidence to establish that its LITTLE GYM marks
      are famous, and only offers the unsworn statement of its CEO as to its annual
      expenditures on promotion by the company and its franchisees. Nevertheless, the
      Panel concludes from the totality of the evidence, including Complainant‟s long
      term use of the LITTLE GYM marks, the quality of its websites, the number of
      franchises and facilities in operation, that the Complainant‟s marks are well
      known and have acquired substantial goodwill that belongs exclusively to
      Complainant.

      In short, it is the conclusion of the Panel that Respondent‟s domain name is
      essentially identical and is certainly confusingly similar to Complainant‟s marks.
      Numerous WIPO cases have concluded that the addition (or subtraction) of “the”
      and “.com” does not prevent two marks from being considered identical. See The
      Sportsman’s Guide, Inc. v. JoyRide, WIPO Case No. D2003-0153
      (May 19, 2003); Harrods Limited v. Surrinder Gill, WIPO Case No. D2003-0243
      (May 23, 2003); Dollar Financial Group, Inc. v. Same, NAF Case No. FA94734
      cited in Micron Electronics, Inc. v. New World Concepts, Inc., WIPO Case No.
      D2001-0225 (June 20, 2001).

6.2   Rights or Legitimate Interests

      Under Policy, paragraph 4(c), a Respondent‟s right or legitimate interest in a
      domain name can be demonstrated if the Respondent shows that

      (i)    it uses or is preparing to use 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; or

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

      None of these conditions apply here. First, following Complainant‟s charge that
      no bona fide offering of goods or services was being made at Respondent‟s
      website, Respondent was given a full and fair opportunity to show the contrary to
      be true. Respondent failed to offer any proof of any sales from its site. If indeed

                                       page 9
      legitimate sales were being made it would have been well within Respondent‟s
      power to present sales confirmation information in its files, but no such evidence
      was presented. Further, it should be noted that when the Panel tried to use
      Respondent‟s website to complete a sale, the site never allowed a “check out.”
      Instead, the site always produced the message: “There are no items in your cart”
      regardless of which category of products were selected for purchase and “added
      to the cart.” In light of the foregoing, it is the conclusion of the Panel that
      Respondent is not using or preparing to use the disputed domain name in
      connection with a bona fide offering of goods or services.

      Next, it is undisputed that:

      (i)   Complainant has not licensed Respondent, nor authorized the use of its
            marks;

      (ii) Respondent does not own any registered marks containing the term “Little
           Gym” or any similar derivation;

      (iii) Respondent has never been known by or associated with the contested
            domain name; and

      (iv) Respondent has no agreement with The Little Gym to stock or sell Little
           Gym‟s products.

      The Respondent‟s claim to a common law mark in <littlegym.com> fails for lack
      of evidence to support the claim. Mere registration of the domain name
      in 2000 does not establish any trademark rights in the name.

      Finally, there is no evidence that Respondent is making a legitimate
      noncommercial or fair use of the disputed domain name. To the contrary, the
      only fair conclusion that can be drawn from Respondent‟s conduct is that
      Respondent is attempting to use The Little Gym‟s mark to attract Complainant‟s
      potential The Little Gym customers to its website and, at a minimum, confuse
      such customers as to the true seller of goods being offered at the site.

      The Panel agrees with Complainant that “such uses of The Little Gym‟s
      trademarks are not a legitimate use of a domain name. Cybersquatting for the
      purposes of diverting confused users or coercing payment from rightful owners
      are the very types of activity the Policy aims to prevent.”

      In light of the foregoing, the Panel finds that the Respondent has no rights or
      legitimate interests in the domain name at issue.

6.3   Registered and Used in Bad Faith

      Under Policy, paragraphs 4(b)(i) and (iv), evidence of bad faith may consist of,
      among other things, circumstances indicating that a Respondent has registered the
      domain name primarily for the purpose of selling, renting, or otherwise
      transferring the domain name registration to the Complainant; or circumstances
      indicating that a Respondent intentionally attempted for commercial gain to
      attract Internet users by using a domain name that creates a likelihood of
      confusion with the Complainant‟s mark as to the source, sponsorship, affiliation,
      or endorsement of the Respondent‟s website or product or service.


                                      page 10
          In this case, Respondent has registered a trademark as a domain name without
          any connection to these marks. Such conduct in and of itself is evidence of bad
          faith registration and use.

           Furthermore, Respondent has used the domain name to divert Internet traffic and
           this conduct indicates its bad faith intentions. Use of a domain name to direct
           Internet traffic to websites unaffiliated with the trademark holder constitutes bad
           faith. The Panel agrees with Complainant that “Respondent is exploiting The
           Little Gym‟s name to confuse The Little Gym customers by using The Little
           Gym‟s famous name in a domain name, and he has furthered the deception by
           using The Little Gym‟s trademarks on his page in an effort either to sell The
           Little Gym‟s competitors‟ products, or to have consumers submit billing
           information electronically.”

           The Panel has reviewed the numerous cases cited by Complainant in support of
           its position that Respondent has registered the disputed domain name in bad
           faith. The Panel finds the cases to be highly relevant and persuasive. The facts
           here, in light of the relevant precedent, compel a finding of bad faith.
           Respondent has not presented any persuasive facts or arguments in opposition to
           Complainant‟s position.

           In light of the foregoing, the Panel finds that the Respondent has registered and
           used the domain name in bad faith.


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, <littlegym.com>, be transferred
     to the Complainant.




                                     Gaynell Methvin
                                      Sole Panelist

                                  Dated: August 21, 2003




                                           page 11

				
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