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The very limited evidence that the Complainant does provide, does not establish common law trademark rights going back to sometime in , being the date that the Complainant expressly claims as the original date of the purported acquisition of common law rights.

There is no data whatever showing any searches prior to , and back to , when the disputed domain name was first registered by the Respondent.

The Complainant has failed to sufficiently demonstrate common law trademark rights, let alone common law trademark rights going back to , or even Finally, the Complainant has not alleged in its Complaint, that it had acquired common law trademark rights prior to , i.

The Complainant has alleged that the Respondent has no rights or legitimate interest in the disputed domain name. In the particular circumstances of this case, the Complainant itself does not appear to have demonstrated any registered trademark rights, or even sufficiently demonstrated common law trademark rights, let alone for the material time period, of prior to the disputed domain name having been registered.

However, the Respondent claims to be able to demonstrate its rights and legitimate interest. In the present case, there is no evidence of any fame of the mark at the time that the disputed domain name was registered, but there is evidence of the Respondent registering similar three and four-letter domain names.

The disputed domain name comprises four letters of the English alphabet resembling an acronym, and is thereby generic.

It has been held that where a domain name is generic, the first person to register it in good faith is entitled to the domain name. As held in Allocation Network GmbH v.

The Respondent is the owner of numerous similar three and four-letter domain names, many of which are acronyms, descriptive words, or generic in nature.

Accordingly, it is respectfully submitted that the Respondent has a legitimate interest in the disputed domain name as a bona fide dealer in such descriptive and generic names.

The Respondent reiterates that the disputed domain name was not registered in as alleged, but rather in , with corroborative evidence showing at the latest, and indisputable evidence from August 17, The Complainant is simply wrong when it alleges that the disputed domain name was registered in The Complainant has not alleged, let alone proven, that it had any prior common law trademark rights dating from or nor shown any actual evidence of common law rights dating back to , or prior to the earliest recorded WhoIs archive, from August 17, The trademark registration that the Complainant references in connection with this allegation, is irrelevant, not only because it does not apparently belong to the Complainant, but also because its date of application is years later than the date of the disputed domain name registration.

The Respondent asserts that it is well settled under the Policy that bad faith registration cannot be found if the disputed domain name was registered prior to the acquisition of trademark rights.

See Aspen Grove, Inc. Reverse Domain Name Hijacking. The Respondent considers this Complaint is unusual in that it made three crucial and foundational submissions, that turned out to be incorrect, namely:.

The Respondent further alleges that the Complainant failed to advise the Panel that it had previously tried to purchase the disputed domain name.

Where a complainant fails to disclose material evidence such as the fact that it made or caused to be made, offers to purchase a disputed domain name, RDNH may be found.

Discussion and Findings by the Three member panel It is an essential requirement that the Complainant should demonstrate that it has rights in a trademark or service mark.

However, as the Respondent rightly observed, the evidence showed this registration to be in the name of another entity, VLAB Limited, not the Complainant, and the Complainant offered no evidence of any assignment or licence from this entity.

The Panel therefore considers this registration not to be relevant under the Policy. The Complainant otherwise asserted, in the original Complaint, that it had established unregistered, common law rights in XNXX.

Some limited evidence was entered in support of this assertion. However, the Respondent has challenged the validity of this assertion and the nature and extent of the evidence.

In particular, it is to be noted that:. COM pre-dating its own earliest possible date of acquisition of the domain name, which, as the Complainant was itself incorporated on December 20, , could not have been any earlier than that date.

The actual assignment documents are not exhibited, so again there is no evidence of any transfer of common law rights in these marks. In the circumstances, the Panel is prepared to accept that this late filed evidence would establish registered trademark rights only for the Complainant as from July 1, , being the date the CTM applications were filed.

For the purposes of this element of the Policy, which only requires that the Complainant show it has rights in a mark, not that the rights arose before the registration of the disputed domain name, the Panel considers that the Complainant has trademark rights in XNXX and potentially XNXX.

The disputed domain name differs only by transposition of the same second and third letters. It is confusingly similar.

On balance, therefore, the Panel is prepared to find that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, and that the requirements of paragraph 4 a i of the Policy are met.

The Respondent has shown one example of the domain name apparently being used for a conventional holding page with links to various search categories as of September 27, However, for the reasons explained below, the Panel does not consider it necessary to take a view on this factor, and leaves it moot.

No evidence is provided to show that this update related to a change of registrant. The update made at that time could have been to any other element of the domain name record.

June The Complainant claims common law trademark rights arise from use of — from Internet archive this appears to be earliest date for an active website at ;.

On the balance of probability, the Panel accepts that the Respondent controlled the disputed domain name, whether it was in his own name, or as Dekarus net Inc, by September 27, , and that it is also more likely than not that the Respondent was responsible for the creation of the disputed domain name in Overall, the Panel considers that the Complainant has failed to discharge its burden to prove all elements required under the Policy, and its case relies on too many unsupported assumptions and presumptions to justify a finding of bad faith registration.

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Some limited evidence was entered in support of this assertion. However, the Respondent has challenged the validity of this assertion and the nature and extent of the evidence.

In particular, it is to be noted that:. COM pre-dating its own earliest possible date of acquisition of the domain name, which, as the Complainant was itself incorporated on December 20, , could not have been any earlier than that date.

The actual assignment documents are not exhibited, so again there is no evidence of any transfer of common law rights in these marks.

In the circumstances, the Panel is prepared to accept that this late filed evidence would establish registered trademark rights only for the Complainant as from July 1, , being the date the CTM applications were filed.

For the purposes of this element of the Policy, which only requires that the Complainant show it has rights in a mark, not that the rights arose before the registration of the disputed domain name, the Panel considers that the Complainant has trademark rights in XNXX and potentially XNXX.

The disputed domain name differs only by transposition of the same second and third letters. It is confusingly similar. On balance, therefore, the Panel is prepared to find that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, and that the requirements of paragraph 4 a i of the Policy are met.

The Respondent has shown one example of the domain name apparently being used for a conventional holding page with links to various search categories as of September 27, However, for the reasons explained below, the Panel does not consider it necessary to take a view on this factor, and leaves it moot.

No evidence is provided to show that this update related to a change of registrant. The update made at that time could have been to any other element of the domain name record.

June The Complainant claims common law trademark rights arise from use of — from Internet archive this appears to be earliest date for an active website at ;.

On the balance of probability, the Panel accepts that the Respondent controlled the disputed domain name, whether it was in his own name, or as Dekarus net Inc, by September 27, , and that it is also more likely than not that the Respondent was responsible for the creation of the disputed domain name in Overall, the Panel considers that the Complainant has failed to discharge its burden to prove all elements required under the Policy, and its case relies on too many unsupported assumptions and presumptions to justify a finding of bad faith registration.

And although such use might arguably be considered as bad faith use now, the Panel does not accept that the disputed domain name can be retrospectively deemed to have been registered in bad faith in the circumstances of this case.

Consequently, the Panel finds that the Complaint fails on this basis. It is therefore unnecessary for the Panel to come to a formal conclusion on legitimacy or otherwise of its alleged interests in the disputed domain name as noted above.

That was of course before the present the Complainant was even in existence. Given the ease in which email addresses can be spoofed, and without evidence of the actual email header details, the Panel does not find this sufficient to lay responsibility on the Complainant now.

The Panel therefore declines to make such a finding. For the foregoing reasons, the Complaint is denied. Scott Donahey Panelist I concur in the result.

Complainant has failed to prove bad faith under all the facts and circumstances of this case. Michael Berkens, Esq.

Michael is also the co-founder of Worldwide Media Inc. Michael was also one of the 5 Judges selected for the the Verisign 30th Anniversary.

Com contest. I got an inquiry into my XXXU. I told them I had been using the domain since for actual porn sites and they better show a real TM and usage of the term if they thought they were going to steal it from me, and of course I dropped the names Howard Neu, John Berryhill, and Ari Goldberger and sent them links to these guys sites and told them I would hire all 3 of these lawfirms and make a dream team of attorneys that would absolutely assure they would NEVER get this name, NEVER EVER, I actually told them to look up these attorneys if they doubted me and then told them to bring it on.

I never heard from them again, thanks Neu, Berryhill and Goldberger, I am pretty sure that my just dropping your names saved me from a UDRP, and I would have paid for your services if they really tried to take this name from me, I would have hired the Dream Team just to prove the point and keep this domain that they were trying to steal.

I am not sure if these were the same folks that tried to steal XXNX. T he Complainant is alleging that the unspecified party that owned the disputed domain name prior to the Complainant, itself acquired it from yet another party, in Whether the Respondent has Rights or Legitimate Interests The Complainant has alleged that the Respondent has no rights or legitimate interest in the disputed domain name.

Reverse Domain Name Hijacking The Respondent considers this Complaint is unusual in that it made three crucial and foundational submissions, that turned out to be incorrect, namely: a the trademark registration that it principally relied upon appears to be registered to someone else; b the disputed domain name was clearly not registered , as alleged; and c despite various bald allegations, no actual evidence of common law trademark rights was submitted from the material time period of the actual date of registration of the disputed domain name.

In particular, it is to be noted that: a the Complainant was not itself established until December 20, ; b there is no evidence of any assignment of any common law rights i.

Decision For the foregoing reasons, the Complaint is denied. Keith Gymer Presiding Panelist M. Nicholas Smith Panelist Date: June Global Auction Online.

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