WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Royal Bank of Canada, Dain Rauscher Corporation and Dain Rauscher Incorporated v. RBCD Ain Rauscher

Case No. D2001-1236

 

1. The Parties

The Complainants are Royal Bank of Canada, a federally chartered bank of Canada, of 200 Bay Street West, 22nd Floor, Toronto, Ontario, Canada, and Dain Rauscher Corporation, a Delaware corporation, of 60 South Street, Minneapolis, Minnesota, United States of America, Dain Rauscher Incorporated, a Minnesota corporation, of 60 South Street, Minneapolis, Minnesota, United States of America.

The Respondent is named as RBCD Ain Rauscher, Ain Rauscher, 45 Noorgenstraat, Amsterdam, The Netherlands.

 

2. The Domain Name and Registrar

The contested domain name is <rbcdainrauscher.com>.

The registrar is Global Knowledge Group, of 2700 Earl Rudder Freeway South, Suite 1300, College Station, TX 77845 United State of America.

 

3. Procedural History

The electronic version of the Complaint was filed on October 10, 2001. The Complainants subsequently amended the Complainant. The electronic version of the Amended Complaint was filed on November 6, 2001. The hardcopy of the Amended Complaint was received on November 9, 2001.

On October 16, 2001, the Center transmitted via email to Global Knowledge Group a request for registrar verification in connection with this case. On August 24, 2001, the Center received a verification response confirming that the domain name is registered with Global Knowledge Group and that the Registrant for the domain name is the Respondent.

In accordance with Paragraph 4(a) of the Rules for Uniform Domain Name Dispute Resolution Policy ("ICANN Rules") and Paragraph 5 of the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("Supplemental Rules"), the Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy ("ICANN Policy"), ICANN Rules and Supplemental Rules.

On November 15, 2001, the Center formally notified the Respondent of the Amended Complaint and of the commencement of this administrative proceeding and sent copies to the Complainant, the Registrar and ICANN.

In accordance with the ICANN Rules, the last day for submitting a Response was December 5, 2001. The Respondent failed to submit a Response by that date and on December 7, 2001, the Center formally notified the Respondent of its failure to do so.

On January 9, 2001, the parties were notified that Mr. Swinson had been appointed as the sole panelist and that a decision was to be handed down by January 24, 2001 (save exceptional circumstances).

The language of the proceeding is English.

The Panel is satisfied that the Complaint was filed in accordance with the requirements of the ICANN Rules and Supplemental Rules; payment was properly made; the Panel agrees with the Centerís assessment concerning the Complainantís compliance with the formal requirements; the Complaint was properly notified to the Respondent in accordance with paragraph 2(b) of the ICANN Rules; the Respondent was properly notified of its failure to submit a Response within the time period allowed in the Notification of Complaint and Commencement of Administrative Proceeding in accordance with paragraph 2(b) of the ICANN Rules and the Administrative Panel was properly constituted.

 

4. Factual Background

On September 28, 2000, Complainant Royal Bank of Canada and Complainant Dain Rauscher Corporation announced that Royal Bank of Canada was acquiring Dain Rauscher Corporation by merger. The merger was finalized on January 10, 2001.

On August 1, 2001, Complainant Royal Bank of Canada publicly announced an acquisition of another entity and that it would merge that entity with Dain Rauscher Incorporated and that the name of the combined entity would be "RBC Dain Rauscher".

The disputed domain name was registered on August 1, 2001. It was subsequently transferred between the Respondent and six other registrants in the period from August to October 2000.

Counsel for Complainant Dain Rauscher Corporation wrote to the Respondent and registrants of the disputed domain name on a number of occasions, commencing on August 27, 2000. The Respondent, and certain of the other registrants of the domain name in question, subsequently offered to sell the domain name to Complainant Dain Rauscher Corporation.

 

5. Partiesí Contentions

A. Complainant

The Complainantís submissions can be summarized as follows:

Complainant Royal Bank of Canada is the owner of two trademark registrations in Canada for the mark "RBC" and owns various subsidiaries carrying on business under the "RBC" name.

Complainant Dain Rauscher Corporation, the parent company of Dain Rauscher Incorporated, is the owner of a trademark registration in the United States of America for the mark "Dain Rauscher". Complainant Dain Rauscher Corporation is also the owner of the domain names <dainrauscher.com> and <rbc-dainrauscher.com>.

The Complainants have developed common law rights in the combination of "RBC" with "Dain Rauscher" as a result of the fame of those marks and the publicity surrounding and subsequent to the merger between Royal Bank of Canada and Dain Rauscher Corporation. The Complainants have a common interest in the domain name in dispute as it incorporates each of the Complainantís trademark.

The disputed domain name is identical with and confusingly similar to the registered marks "RBC" and "Dain Rauscher" and to the common law mark "RBC Dain Rauscher". The disputed domain name is identical to combinations of the Complainantsí trademarks except for, in few instances, the identification of the top level domain ".com".

The disputed domain name was initially registered by SFXB and B Evans on August 1, 2001, and has been transferred a number of times since August 1, 2001, between Brian Evanís various false identities.

The Respondent has no rights or legitimate interests in respect of the disputed domain name and has not demonstrated use, or its intention to use, the disputed domain name. The Respondent has no relationship or license from the Complainants to use the Complainantsí trademarks.

The following is evidence of the Respondentsí bad faith registration and use of the domain name:

(a) the disputed domain name has been registered with seven registrants, including the Respondent, all of whom are connected with each other by a common listed address, email address and/or user name;

(b) all of the registrants of the disputed domain name are related to or aliases of a "B. Evans" and the Respondent;

(c) B. Evans is the controlling mind and legal person behind each of the registrants and the Respondent;

(d) the Respondent and registrants associated with B. Evans have been adjudicated in a number of administrative proceedings and a US District Court case to have registered in bad faith disputed domain names. Those proceedings resulted in the transfer of the disputed domain name to the third party complainants;

(e) the Respondentís and registrantsí actions in registering the domain name on the same day as the public announcement by Royal Bank of Canada regarding use of the name "RBC Dain Rauscher" is evidence of their continued pattern of cybersquatting;

(f) the Respondent and registrants have not used or attempted to use the domain name in connection with the bona fide offering of goods or services and have not made non-commercial or fair use of the domain name; and

(g) the Respondentís and registrantsí bad faith use of the domain name is demonstrated by several offers to sell the domain name for US$1,000, US$5,000 and US$5,999.

The Complainantís submissions included detailed evidence regarding Brian Evans and his various false identities. A large volume of email correspondence from Brian Evans, often contradictory, was also included in the Complainant. The Complainant also submitted detailed evidence showing that the disputed domain name was transferred seven times between Brian Evanís various false identities.

B. Respondent

The Respondent has not submitted a Response.

However, a number of email messages were sent to the case manager at WIPO and/or the Complainantís attorney relating to this dispute. These email messages included the following:

- an email from "B Evans" of email5000@email.com stating: "Please note our objection, and your formal notification that we will be filing suit in Virginia, Attorney Sturgeon of Washington D.C. will advise."

- an email from "B Evans" of canadianonline@hotmail.com stating: "Please advise your clients to stop using my email address. I am receiving nearly 400 email messages per dayÖ Additionally, please note that an action is being filed in Federal Court to stop your action. Nice try, you just picked the wrong guy. Itís not going to be that easy my brother."

- an email from "B Evans" of email5000@email.com stating, in part: "RBCD is a verified and documented company, all of which will be provided in our formal answer. We only [sic] several names like it, but none are associated with various businesses whom have contacted us that this complainant as has attached our email address to. So basically, if they dispute a name, they include anyone and everyone in a single complaint. Their tactics are quite obvious, and when you deny their ridiculous claim, I also hope you sanction them with a stern warning to avoid such tactics in the futureÖ Regards, Ain Rauscher."

 

6. Discussion and Findings

In order to qualify for a remedy, the Complainants must prove each of the three elements set out in Paragraph 4(a) of the ICANN Policy, namely:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights; and

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

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

The onus of proving these elements is on the Complainants.

6.1 Identical or confusingly similar to a trademark or service mark

The Panel must find that:

(a) the Complainants have a trademark or service mark; and

(b) that the contested domain name is identical or confusingly similar to that trademark or service mark.

Complainant Royal Bank of Canada owns a family of trademarks composed of "RBC" used in its financial services business. These include the "RBC" trademark. Complainant Royal Bank of Canada is the holder of two trademark registrations in Canada in respect of the "RBC" mark.

Subsidiaries of Royal Bank of Canada carry on business in various countries under names incorporating the "RBC" mark.

The Complainant Royal Bank of Canada has presented substantial evidence as to the fame of the "RBC" mark.

Complainant Dain Rauscher Corporation owns a family of trademarks used in its financial services business, including "Dain Rauscher". It holds three trademark registrations in the United States in respect of the "Dain Rauscher" mark. For example, a trademark application for the word mark for "DAIN RAUSCHER" was filed in December 1997, and registered in November 1999.

Dain Rauscher Corporation is the owner of the domain names <dainrauscher.com> and <rbc-dainrauscher.com>.

Complainant Dain Rauscher Incorporated is a wholly-owned subsidiary of Dain Rauscher Corporation.

There are three Complainants in this proceeding. In Ken Done, Ken Done & Associates Pty Limited, and Ken Done Down Under Pty Limited v. Ted Gibson, eResolution Case No. AF-0638, the panel concluded that a complaint may be submitted by multiple related parties where there are common interests in a single domain name. In that case, the joint complainants failed to present their claim adequately as they obscured the trademark ownership interests among each of the parties, requested an ambiguous remedy by not stating to which of the Complainants the contested domain name should be transferred to, and avoided the identification of each party's stake in the remedy. That is not the situation here. The Panel notes that a number of cases under the ICANN Policy have been decided in favour of the Complainant despite the fact that more than one Complainant instituted the proceeding. (See, e.g., Bettina Liano and Bettina Liano Pty Limited v. Khanh Kim Huynh, WIPO Case No. D2000-0891; NFL Properties, Inc. et al. v. Rusty Rahe, WIPO Case No. D2000-0128; Mucos Emulsions, GmbH and Marlyn Nutraceuticals, Inc. v. Esex.org and Kim Taeho, WIPO Case No. D2000-1513.) The issues arising in World Wrestling Federation Entertainment, Inc. v. Aaron Rift WIPO Case No. D2000-1499 and The Nasdaq Stock Market, Inc. v. Green Angel, WIPO Case No. D2001-1010 do not arise here because all Complainants are clearly related, as set out above.

The Panel finds that the disputed domain name is confusingly similar to Complainant Dain Rauscher Corporationís registered trademark for DAIN RAUSCHER.

6.2 Illegitimacy

Under Paragraph 4(c) of the ICANN Policy, the Respondent may demonstrate its rights and interests in the contested domain name by showing any of the following circumstances, in particular but without limitation:

(i) its use of, or demonstrable preparations to use, the contested domain name or a name corresponding to the contested domain name in connection with a bona fide offering of goods or services before any notice to it of the dispute; or

(ii) it (as individuals, a business, or other organization) has been commonly known by the contested domain name, even if it has acquired no trademark or service mark rights; or

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

Those circumstances are not exhaustive of the circumstances that may establish rights or legitimate interests.

The Respondent had the opportunity to respond and present in evidence, for example, that it has a legitimate business that it registered the domain name without knowledge of the Complainantsí rights. The Respondent has not submitted a Response, nor did it attempt to substantiate its rights to the name following receipt of cease and desist letters sent on behalf of Complainant Dain Rauscher Corporation. The Complainants are not entitled to relief simply by default, but the Panel can and does draw evidentiary inferences from a failure to respond.

The Respondent has not used, and is not using, the dispute domain name in a business. There is no evidence that the Respondent ever intended to use disputed domain name in any legitimate way. It is totally clear that the only purpose for which the Respondent registered the domain name was to sell it to one of the Complainants at a profit.

During late 2001, the website at the disputed domain name had various "coming soon" messages. It also, at one stage included the words "RBCD Ain Rauscher is changing our look! Since 1996, Ö the best in travel." The Panel does not believe that the Respondent ever used the dispute domain name in relation to any travel-related services. When the Panel visited the site at the disputed domain name, it included the statement "VISIT www.CIBC.com for our new bank address!" (CIBC is a competitor of one of the Complainants) and had a link to a graphic at http://www.gkg.net/images/parking/1.gif.

The Panel decides that the Respondent has no rights or legitimate interests in the domain name at issue.

6.3 Bad Faith

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

(i) circumstances indicating that the Respondent has registered or has acquired the contested domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainants who are the owner of the trademark or service mark or to a competitor of that Complainants, for valuable consideration in excess of the Respondentís documented out-of-pocket costs directly related to the contested domain name; or

(ii) the Respondent has registered the contested domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondentís Web site or other on-line location, by creating a likelihood of confusion with the Complainantsí mark as to the source, sponsorship, affiliation, or endorsement of the Respondentís Web site or location or of a product or service on the Respondentís Web site or location.

Paragraphs 4(b)(i) and 4(b)(ii) of the ICANN Policy are clearly made out in this dispute.

There is strong evidence that the Respondent registered the disputed domain name primarily for the purpose of selling it to one of the Complainants, for valuable consideration in excess of the Respondentís documented out-of-pocket costs directly related to the disputed domain name. For example, the Respondent offered to sell the disputed domain name to one of the Complainants on a number of occasions, for prices ranging between US$1,000 and US$5,999. In the Panelís view, this is sufficient evidence of bad faith.

In addition, the evidence clearly shows that the Respondent is a notorious cybersquatter, operating under various aliases. The Respondent has engaged in a pattern of conduct of registering trading names of third parties at approximately the same time that the third parties issues press releases regarding their activities, such as mergers or name changes. The Respondent has done this on a huge number of occasions, and continues to do so even after being unsuccessful in a number of ICANN decisions on similar grounds.

The Respondent has also registered a large number of domain names that include well-known trademarks of others.

As the evidence in the Complainant shows, as well as correspondence sent from the Respondent to WIPO and the Complainants, the likely person behind the Respondent is Brian Evans who appears to reside in or around Las Vegas. He often uses the address of 8635 W. Sahara, Las Vegas, NV 89117. He appears to have the business address of 8000 Spring Mountain Road, No. 2056, Las Vegas. Brian Evans would appear to be this personís real name, because he signed a Consent Judgment in an unrelated domain name case under this name before a Notary Public in Nevada. Possibly, Brian Evanís telephone number is (702) 871-3613. The evidence shows that Brian Evans has used the following names and email addresses:

- SFXB (the original registrant of the disputed domain name)

- RBCD Ain Rauscher (the Respondent)

- email5000@email.com (the Respondentís email address in the WHOIS database, and used by the Respondent to send emails in relation to this dispute)

- J. Reimer, of Key West, Florida (a transferor and transferee of the disputed domain name)

- Wellux Intl Music of Key West, Florida (a transferor and transferee of the disputed domain name)

- rfcmusic (name on email sent by disputed domain name owner to Complainants) and rfcmusic@aol.com

- Sandvik & Smith, of Las Vegas (a transferor and transferee of the disputed domain name)

- Paul Sandvik, of Las Vegas (a transferor and transferee of the disputed domain name) and sandviksmith@aol.com

- H Bousquet of Marathon, Florida (a transferor and transferee of the disputed domain name) and email7000@email.com

- BPB Prumerica Travel of Marathon, Florida (a transferor and transferee of the disputed domain name)

- Bry Evans (a name on an email) and riveravenue@email.com

- canadianonline@hotmail.com (used to send emails in this dispute)

- Postendo

The only reasonable inference in the circumstances is that Brian Evans is indeed the controlling mind and legal entity of the Respondent and these registrants.

It may be possible, but is unlikely, that the real Brian Evansí identity has been hijacked by the cybersquatter in this dispute. Brian Evans appears to be a Canadian born, 29 year old a Las Vegas entertainer, who also has a Key West address. See <thecrooner.com>, and a press release "http://www.send2press.com/PRnetwire/ARCHIVE/pr_081701-crooner.shtml" which list Brian Evanís media contact as PAUL BAKER of BAKER, WINOKUR, & RYDER, telephone (310) 550-7776 and email RFCMUSIC@aol.com. This email address was used by one of the owners of the disputed domain name, and that email appeared to be used by the cybersquatter in this dispute. The press release at that site quotes an attorney named Ira Levin. See also Everypath, Inc. v. EPJ, NAF Claim Number: FA0106000097350, another domain name case involving Brian Evans, a Las Vegas entertainer, and Ira Levin. The whois record for <thecrooner.com> lists the owner as Brian Evans with the email address of bevans8576@aol.com. This email address has been used by Respondent in at least eight ICANN disputes, including some cited in the paragraphs below. See also, e.g., Blue Martini Software, Inc. v. Entredomains, Inc., WIPO Case No. D2000-0917 and N.C.P. Marketing Group, Inc. v. Entredomains, WIPO Case No. D2000-0387. In 1999, Yahoo reported that "Brian Evans, a singer/songwriter, has voluntarily given the domain names <theratpackisback.com> and <ratpackisback.com> to the Sinatra family." Other news reports at the time stated:

"Evans, who is best known for revitalizing the crooner genre on this year's Brian Evans -- Live At the Desert Inn, was caught in the middle of a pending lawsuit involving the David Cassidy production The Rat Pack Is Back, currently playing in Las Vegas.

When Evans was offered a substantial amount of money for the domain names from the Cassidy production, who wanted them to help publicize their current show (which is not-sanctioned by the Sinatra family), he decided to do the right thing and gave the names to the Sinatra family, who are currently in a trademark battle with the Cassidy production over the use of the rat pack name and likeness.

Nancy Sinatra, Frank's daughter, called Evans a "friend for life" in a personal email to the singer after she learned that he would be giving up the domain names for free.

Evans' most recent work, Christmas Stories...Christmas Songs -- a collaboration with actor Peter Billingsley (A Christmas Story)."

A report in the Las Vegas Sun on September 29, 1999, stated:

"State Farm Mutual Automobile Insurance Co. sued a Las Vegas man, Brian Evans, alleging he infringed State Farm's trademark rights in cyberspace by registering and using its domain name to point to his personal website, and by allegedly offering State Farm's domain name for sale.

The District Court suit said Evans used the <statefarmonline.com> domain name to point to a webpage where he was offering his own goods and services for sale.

State Farm believes Evans' main motivation is to extract money from rightful trademark owners," said William Dietz, State Farm's attorney.

State Farm, of Bloomington, Ill., is seeking a restraining order prohibiting Evans, who allegedly received the domain name <statefarmonline.com> on August 19, 1999, from Network Solutions Inc., the main registrar of ".com" domain names, from using or selling its domain name, until a preliminary injunction hearing is held.

It said it feared its business could be irreparably damaged if its domain name was sold to a third party in a country that didn't adequately protect the rights of its owner.

It alleged Evans' unauthorized use of its trademark "adversely affects its ability to control the nature and quality of products and services provided under the State Farm trademark and places its reputation in Evans' hands."

Evans, a Las Vegas entertainer, denied the allegations.

"Someone had stolen my passcode to access the manager section of my store.yahoo.com website to register hundreds of domain names with Network Solutions Inc. (the main registrar for '.com' domain names). This automatically directs the domain names registered to my website, thecrooner.com, which gives them the impression that I registered the names."

"The bizarre thing is that the person who registered the domain names could do it without a credit card number," he said.

So there's no way of tracking who registered the names, and no way of proving that I did, or didn't," Evans said.

Why me? They might as well say that I'm the second gunman on the grassy knoll," Evans said. "If I wanted to register domain names, I wouldn't be stupid enough to use my own name and address. That's just going to invite lawsuits. It's obvious the person who registered the domain names is doing this just to harass us."

"State Farm accused Evans, whom the suit said faced cybersquatting allegations filed last month in California, Minnesota, Massachusetts and Maryland, of registering and using domain names that incorporate the trademarks of well-known companies, and then threatening to sell these to third parties if the rightful trademark owners refused to pay him.

Evans, who does business as Domain by Brian Evans, Brian Evans Domains, Crooner Brian Evans and The Domain Train, was sued for alleged deceptive trade practices by Hilton Hotels Corp., 3M, Reed Elsevier Inc. and Marriott International, the suit said.

But Evans said Hilton and the Marriott have dropped the suits against him and he was in the process of transferring the domain names of the other companies back to them.

Marriott's attorney, Michael Grow, could not be reached for comment.

"If there was any truth to those charges, the Hilton and Marriott would be getting my jugular now and not dropping the suits," he said.

The suit, however, said 3M had obtained a temporary restraining order prohibiting Evans from selling or transferring its domain names <3monline.com> and <canadaposte-itnotes.com>. The suit also said State Farm employee Bob Reiner had received an e-mail with a subject line reading <statefarmonline.com> that stated: "This domain is for sale. We've been offered an amount by a third party that prompted us to do a search on the Internet to see if there may be another company interested in the name for purchase. You can own the above name for $10,000.""

There have been a number of WIPO decisions decided against Brian Evans. For example, in The Prudential Insurance Company of America v. SFXB, NAF Claim Number: FA0109000099671, the panel stated:

"The Respondent has shown opportunistic bad faith registration and use by registering a domain name after learning about the merger of the two businesses. See EntergyShaw LLC v. CPIC Net, supra. ("Respondentís opportunistic bad faith is obvious. Respondent registered the domain names at issue the very day Complainant issued a press release regarding the proposed joint venture. Such timing cannot be a coincidence"); see also Time Warner Inc. and EMI Group plc v. CPIC Net, D2000-0433 (WIPO September 15, 2000), (finding that Respondent registered and used the domain names <emiwarnermusic.com>, <emiwarner.org>, <emiwarner.net>, <warneremi.net>, and <warneremi.org> in bad faith pursuant to Policy ∂ 4(b)(i), (ii) and (iii), because Respondent registered the domain names after Complainant issued a press release of the proposed merger between Complainants); see also The London Metal Exch. Ltd. v. Hussain, D2000-1388 (WIPO December 15, 2000), (finding bad faith pursuant to Policy ∂ 4(b)(i) where Respondent registered <lmeholdings.com> on the same day that a news article was published regarding the Complainantís new company called "LME Holdings Limited").

Several reported decisions establish that the Respondent has engaged in a pattern of cybersquatting. In Astro-Med, Inc. v. Merry Christmas Everyone! And B. Evans, D2000-0072 (WIPO March 27, 2000), the Complainant alleged that, shortly after it created a new business division called Grass-Telefactor Instrument Group, it received an unsolicited email from B. Evans stating, "Someone emailed me about a few domain names I own. Yes, they are for sale in response to the email." The Panel concluded that those domain names were registered in bad faith.

Similarly, in Marconi Commerce Systems, Inc. v. Mr. B. Evans, FA 93560 (Nat. Arb. Forum, March 15, 2000), the Complainant, which conducts business under the name Gilbarco, alleged that B. Evans registered the domain name <gilbarcoeclipse.com> shortly after the Complainantís adoption and rollout of its Eclipse product, and then offered to sell the domain name to the Complainant. The Panel found that B. Evans registered that domain name in bad faith.

In Exario Networks Inc. v. The Domain Name You Have Entered Is For Sale, AF-0538 (e Resolution, December 11, 2000), the Panel concluded that the Respondent had engaged in repeated instances of cybersquatting. In that case, the Complainant issued a press release publicly announcing its new corporate name, Exario Networks, Inc. On the same day, the Respondent registered the domain name <exarionetworks.com>. Thereafter, the Complainant received an unsolicited email from "BEvans8576@aol.com" stating, "Someone emailed me about a domain name I own: <exarionetworks.com>. Yes it is for sale." In finding bad faith registration of the domain name, the Panel noted the Respondentís clear pattern of cybersquatting.

As in these reported cases, the Respondent registered the domain name shortly after the public announcement of a new company to be formed by Prudential and its partner BPB. The Respondent then sent an unsolicited email claiming to respond to an earlier email and offering to sell the domain name for several thousand dollars in excess of his out-of-pocket expenses. The Respondent registered and used the domain name in bad faith."

In Schott Glas and Nec/Schott Components Corp. v. Necschott, WIPO Case No. D2001-0127, this panelist stated:

As an aside, the panel is aware of the following: The whois database search of the contested domain name lists NecSchott as the registrant of the contested domain name and Wilson, H.H. as the administrative and billing contact for the contested domain name. The contact address for both the registrants of the contested domain name and Wilson, H.H. is 8635 W Sahara, Las Vegas, NV 89117 USA. The panel notes that this address is the same as the address noted in the whois database for the respondents in the following cases:

(a) Atmel Corporation v. Entredomains, Inc., WIPO Case No. D2000-0775;

(b) Creo Products, Inc. & anor v. Website in Development, WIPO Case No. D2000-0160 and Creo Products, Inc. v. Website in Development, WIPO Case No. D2000-1490;

(c) Rona Inc. v. Merry Christmas Everyone!, Case No. WIPO D2000-1653;

(d) Astro-Med Inc. v. Merry Christmas Everyone! and B. Evans, WIPO Case No. D2000-0072;

(e) International Mobile Satellite Organisation and Inmarsat Ventures Limited (formerly known as Inmarsat Holdings Limited) (Complainants) v. Domains, EntreDomains Inc. and Brian Evans, WIPO Case No. D2000-1339;

(f) Cree, Inc. v. The Domain Name You Have Entered is For Sale a/k/a Entredomains, Inc., Case No. FA0005000094790 [also involving attorney Ira Levin]; and

(g) Marconi Commerce Systems, Inc. v. Mr. B. Evans, Case No. FA0002000093560.

"All of these cases involved domain names that were similar to names resulting from an "M&A" type activity of a company, for example, the merger of two companies, the acquisition of a company by another company, an agreement between two companies, or a change of company name.

In Creo Products, Inc. & anor. v. Website in Development, WIPO Case No. D2000-0160, an administratively deficient response very similar to one of the administratively deficient Responses filed in this case was signed by a B. Evans, who appears to be the same person who purportedly sent one of the administratively deficient Responses in this case. The panel notes that B. Evans was a joint Respondent in Astro-Med Inc. v. Merry Christmas Everyone! and B. Evans, WIPO Case No. D2000-0072 and Marconi Commerce Systems, Inc. v. Mr. B. Evans, Case No. FA0002000093560. The panel also notes that a Brian Evans was a joint Respondent in International Mobile Satellite Organization and Inmarsat Ventures Limited (formerly known as Inmarsat Holdings Limited) (Complainants) v. Domains, EntreDomains Inc. and Brian Evans, WIPO Case No. D2000-1339.

The panel notes the above cases for the record, but does not need to rely upon this apparent course of conduct to reach its decision that the Respondent has no legitimate interest in the contested domain name."

The Complainant also cites the following additional cases involving Brian Evans or associated aliases thereof:

(a) Reed Elselvier Inc. v. Justin Reimer d/b/a Domains by Justin Reimer and Brian Evans (D. Mass Case No. 99-CV 11775).

(b) Minnesota Mining and Manufacturing Company v. Brian Evans, U.S. District Court for the District of Minnesota (Civil Action No. 99-1285), in which case the court found that Brian Evans was "in the business of reserving domain names that include the marks of other companies, and selling them.

(c) Avnet, Inc. v. AV Net Ave, WIPO Case No. D2001-0415.

(d) Belo Corp. v. Liquidating Domains, WIPO Case No. D2001-0394.

(e) Great American Insurance Co. v. C.M.E., Inc., WIPO Case No. D2001-0086.

(f) AT&T Corp. v. Domains By Brian Evans, WIPO Case No. D2000-0790.

In this dispute, there is clear and convincing evidence of bad faith.

7. Decision

For the reasons set forth above and pursuant to Paragraph 4(i) of the ICANN Policy and 14 of the ICANN Rules, the Panel orders that the contested domain name <rbcdainrauscher.com> be transferred to Complainant Dain Rauscher Corporation.

 


 

John Swinson
Sole Panelist

Dated: February 14, 2002