WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kejr, Inc., d/b/a Geoprobe Systems v. Artís Manufacturing & Supply, Inc.
Case No. D2001-1348
1. The Parties
Complainant is Kejr, Inc., d/b/a Geoprobe Systems, a corporation organized under the laws of the State of Kansas, U.S.A., with a place of business in Salina, Kansas, U.S.A. (Kejr).
Respondent is Artís Manufacturing & Supply Inc., a corporation with a place of business in American Falls, Idaho, U.S.A. (Artís).
2. Domain Names and Registrar
The domain names in issue are:
The registrar is Network Solutions, Inc. (NSI).
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the Complaint via email on November 12, 2001, and in hard copy form on November 15, 2001. The Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Kejr made the required payment to the Center. The formal date of the commencement of this administrative proceeding is November 29, 2001.
On November 21, 2001, the Center transmitted via email to NSI a request for registrar verification in connection with this case. On November 26, 2001, NSI transmitted via email to the Center NSIís confirmation that (1) Artís is the current registrant of the domain names in issue, (2) NSI Service Agreement Version 5 is in effect, and (3) the two domain name registrations are in "active status."
On November 29, 2001, the Center transmitted to Artís Notification of Complaint and Commencement of Administrative Proceeding, together with a copy of the Complaint, via facsimile, post/courier and email. The Center advised, inter alia, that the Response was due by December 19, 2001, and pointed out the Response should be in accordance with requirements set out in the Rules and the Supplemental Rules.
On December 20, 2001, the Center received Artís Response via email, and on December 7, 2001, in hard copy.
On January 9, 2002, the Center advised the parties that the Administrative Panel had been appointed, consisting of David Plant. The Center advised that absent exceptional circumstances, the panel is required to forward its decision to the Center by January 3, 2002.
4. Factual Background; Partiesí Contentions
a. The Marks
The Complaint is based on a registered trademark and a registered service mark as averred by Kejr as follows:
Kejr has used "Geoprobe Systems" since at least as early as 1987, for retail store services specializing in machines and equipment for sampling, testing and analyzing, maintaining and repairing such equipment and for educational services. U.S. Service Mark Registration 2,218,102 issued January 19, 1999, for such services, based on first use in commerce in 1987 (Annex 3 to the Complaint). The application for this registration was filed November 29, 1996.
Kejr has used "Geoprobe" since at least as early as February 1988, in connection with "direct push and soil sampling machines." U.S. Trademark Registration 1,601,914 issued June 19, 1990, for "Machine for driving sampling tubes into soil, and accessories therefor ...," based on first use in commerce February 1988 (Annex 4). The application for this registration was filed November 13, 1989.
Kejr avers it is a leader in "the direct push, soil sampling and drilling industries." Kejr says it enjoys substantial goodwill and a valuable reputation in connection with its marks. Kejr avers it has expended and continues to expend "a significant amount of time, money, resources and effort to advertise and promote its goods and services under" the two marks, and to police "misuse of the marks."
Kejr avers it owns the domain names <geoprobe.com> and <geoprobesystems.com>, the latter having been registered on July 8, 1996, and the former, on March 19, 2001. Kejr states it has been operating web sites under both domain names, with the web site under <geoprobesystems.com> having been operated continuously since at least as early as July 8, 1996. Printouts regarding these Kejr registrations appear at Annex 5.
b. The Complaint Re Respondentsí Activities
Kejr contends that (a) the domain names in issue are identical or confusingly similar to a Kejr trademark or service mark, (b) Artís has no rights or legitimate interests in respect of the domain names, and (c) the domain names were registered and are being used in bad faith.
Kejr avers that (a) Artís, now known as AMS, is a competitor in the soil sampling, direct push and drilling industries, and (b) both parties manufacture and sell "numerous similar and/or identical products to the same customers in the same industry." Kejr asserts that Artís owns the domain name <ams-samplers.com> and operates its primary web site at that location. Artís <ams-samplers.com> domain name was registered November 15, 1996 (Annex 8). Kejr states that a comparison of the home pages of the parties (Annexes 6 and 7) "readily reveals the competitive nature of the two parties í businesses."
Kejr asserts that Artís registered the two domain names in issue on October 5, 2000 (Annex 1). Kejr contends that because the parties had been competing for over a decade, Artís necessarily knew of Kejrís trademark rights in "Geoprobe" and "Geoprobe Systems". Also, Kejr is known in the industry and does business as "Geoprobe Systems". In addition, Kejr had been operating its <geoprobesytems.com> web site for at least four years prior to Artís registration of the two domain names in issue.
(2) Identical or Confusing Similarity
Kejr claims it has trademark rights in "the marks GEOPROBE, GEOPROBE SYSTEMS, <geoprobe.com> and <geoprobesystems.com>." Kejr asserts that Artís two domain names are "legally identical" to the registered mark "Geoprobe Systems" because the domain names are simply in the singular and differ from the registered mark by only one letter. Kejr makes the same assertion with respect to its alleged mark "geoprobesystems.com". Kejr asserts these differences do not "preclude confusion ... given the highly and directly competitive nature of the products and services offered at the sites." In support of these contentions, Kejr cites decisions in WIPO Cases Nos. D2000-1768, D2000-1686, D2000-1204, D2000-0614, D2000-0304, and D2000-0274.
In addition, Kejr asserts that "at an absolute minimum," Artís domain names are "confusingly similar to the trademarks and/or service marks in which Complainant has rights," citing National Arbitration Forum decision FA95940.
(3) Rights or Legitimate Interests
Kejr asserts that in addition to the evidence of bad faith registration and use referred in the next subsection, Artís is "void of rights or legitimate interests in the domain names." Kejr contends that its U.S. trademark registrations are evidence of Kejrís "exclusive rights to the marks GEOPROBE and GEOPROBE SYSTEMS in the direct push, soil sampling and drilling industries." Accordingly, Artís has no rights or legitimate interests in domain names that are "virtually identical" to Kejrís marks and domain names. Kejr asserts also, in light of the U.S. registrations "covering goods and services" also offered by Artís, Artís "would not be able to use the subject domain names .... in connection with the offering of any of the goods and services provided by Respondent at the time of the notice." Kejr says that by virtue of its registered marks, it has "exclusivity to use the GEOPROBE and GEOPROBE SYSTEMS marks in connection with the above-listed and competing goods and services."
Kejr adds that Artís "was merely using the domain names as technical pointers (i.e. links that merely redirect Internet users) to Respondentís main website at ams-samplers. com." Thus, says Kejr, Artís "does not conduct any legitimate business under the domains, but instead conducts their legitimate business under their arms-samplers.com mark." Kejr asserts Artís "merely used the subject domain names to misleadingly redirect and divert" Kejrís customers to Artís. Kejr avers there is no evidence that, before Kejrís February 13, 2001 notice to Art ís, Artís had used or made demonstrable preparations to use the two domains in connection with a bona fide offering of goods and services. To the contrary, says Kejr, Artís had used the domains "merely to link the domains to its then current site where it used its own trademarks in connection with the offering of competing goods and services."
Kejr avers that in light of the foregoing, Artís is not, and has not been, commonly known by the two domain names.
Kejr asserts Artís "is not making a legitimate non-commercial or fair use of the domain names without intent for commercial gain to misleadingly divert customers or to tarnish the trademarks or service marks" of Kejr. Artís has not explored additional business opportunities to use the domain names which would not cause "reasonable confusion", as stated in its counselís July 9, 2001 letter (Annex 12). Thus, this was not Artís purpose in originally registering and using the domain names
(4) Bad Faith
Kejr avers that the two domain names in issue have been registered and are being used in bad faith.
Kejr first asserts that trademark owners "often register ... domain names where the second-level domain is a common misspelling of their trademarks." Kejr appears to draw this conclusion from its view that (a) Artís singular form of "Complainantís trademark represent such a common misspelling," and (b) Artís domain names "incorporate the entirety of Complainantís GEOPROBE trademark."
Next, Kejr asserts the domain names were registered primarily for the purpose of disrupting the business of a competitor. Kejr points again to (1) the similarity of the products offered by Artís and Kejr at their web sites, and (2) both domain names were set up as technical pointers to Artís <ams-samplers.com> site. Thus, potential Kejr customers who typed in the singular form of Kejrís registered mark "Geoprobe Systems" would be taken to Artís competing web site which offered similar products as Kejr. Kejr avers:
"Towards the end of the year 2000, Complainant received numerous calls from people who were attempting to locate Complainant on the web. These individuals expressed that while trying to access Complainantís website, they were repeatedly linked to Respondents [sic] website."
Kejr asserts that, after determining that Artís domain names were the source of the problem, Kejr sent a cease and desist letter to Artís President on February 13, 2001 (Annex 9). Inter alia, the letter requested Artís to execute documents transferring the two domain names to Kejr. On March 1, 2001, counsel for Artís replied, requesting time to consider the matter (Annex 10). The letter "indicated that, during the pendency of the review of the matter, Respondent would discontinue the practice of linking the subject domains to their website." Further, "when the links from the subject domains were not taken down as indicated ... in the March 1, 2001 letter," Kejrís attorney telephoned Artís counsel on March 8, 9, 12, and 14. Kejr asserts the links were taken down March 14, 2001, but Artís has not transferred ownership of the domains to Kejr and "could reestablish the links to their site at a momentís notice."
Kejr asserts that, on March 23, 2001, Kejrís attorney again "contacted" Artís attorney, who "indicated he would talk with his client early the following week and get back with counsel for Complainant." Kejr avers that, having received no communication from Artís counsel, Kejrís counsel sent another letter on May 11, 2001 (Annex 11), repeating the cease and desist demand and requesting transfer of ownership of the domain names. On July 9, Artís counsel sent a letter to Kejrís counsel, stating Artís "is not currently using the domains in the manner that they were and that the Respondent would not be transferring the domains to Complainant" (Annex 12).
Kejr contends that Artís registration and use in bad faith is evidenced by its "intentional attempt ...to attract for financial gain Internet userís to Respondentís website by creating a likelihood of confusion with Complainantís mark ...". Kejr asserts:
"By redirecting potential customers of Complainant to Respondentís website which offers similar products, Respondent attempted to redirect sales from Complainant to Respondent for the financial gain of Respondent. Respondent attempted to palm off of the goodwill created by Complainant in Complainantís marks by creating not only a likelihood of confusion with the Complainantís mark but actual confusion."
Kejr cites WIPO decisions in Cases No. D2000-1768 and D2000-0037 and National Arbitration Forum decisions in Cases No. FA95940 and FA95741.
Kejr requests that the panel decide that each of the two domain names in issue be transferred to Kejr.
The Complaint concludes with the requisite certification as to completeness and accuracy and is signed by Complainantsí counsel.
c. The Response
Artís does not contest the applicability of the Policy or jurisdiction of WIPO in this proceeding. Artís submits itself to this "mandatory proceeding".
(1) "Identical or Confusingly Similar"
Artís asserts that the domain names in issue differ "in a number of respects from the trademark and/or service marks of which Complainant possesses right (GEOPROBE, GEOPROBE SYSTEMS, geoprobe.com and geoprobesystems.com)." Artís relies on the space between Geoprobe and Systems in "Complainantís registered trademark," and "the plural form of the Complainantís marks." Also, Artís claims one of its domain names (i.e. <geoprobesystem.net>) "is a wholly different and alternative top level domain." Artís contends that the decisions cited by Kejr are inapposite because all are default decisions and in none were issues presented here contested.
(2) "Rights or Legitimate Interests"
Artís claims that, before any notice from Kejr, Artís used the domain names in connection with its bona fide offering of goods and services. Artís states:
"Respondent has successfully participated in the direct push, soil sampling and drilling industries in which the Complainant likewise operates for approximately 14 years."
Artís asserts that, in the industry in which both parties participate, "Geoprobe" has
"acquired generic characteristics and lacks the functions generally associated with a trademark: (i) identification of origin; (ii) identification of quality assurance; and (iii) symbolism of good will."
Thus, according to Artís, in the industry, "Geoprobe" "essentially represents" tools equipment and/or activities, lacks the "substantial good will" claimed by Kejr, is not representative of "Complainantís proposed Ďstandards of excellence and high quality products and servicesí," but "is merely representative of a niche of activities affiliated with soil sampling and other similar activities." From this, Artís concludes it has legitimate interests in the domain names.
Artís asserts also "Geoprobe" is being used by "numerous third parties to identify similar activities." Artís contends Kejr, "through its acts of omission as well as commission, has caused the mark in question to become generic as applied to its goods and services." Art ís cites 15 U.S.C. ß 1127. Artís concludes this proceeding has been brought in bad faith by Kejr.
Artís avers that both parties acknowledge they are competitors and "manufacture and sell numerous similar and/or identical products to the same customers within this industry." Artís claims Kejr, "in efforts to keep any competition at bay," is engaging in "reverse domain name highjacking."
With respect the Kejrís claim that Artís uses its domain names as a "Ďtechnical pointerí (i.e., links that merely redirect internet users) to Respondentís main web site at www.AMS-Samplers.com," Artís intent was "to leverage the ubiquitous nature of the internet to benefit its bona fide offering of goods and services." Artís avers:
"The intent of the Respondent at no time was to Ďmisdirectí internet users from Complainantí s web site to Respondentís web site."
Artís asserts that "upon Respondentís receipt" of the February 13, 2001 letter, Artís
"in good faith, agreed and in fact did discontinue the use of the domain names in question. This action was merely an accommodation to demonstrate Respondentís good faith while it reviewed the matter and explored additional business opportunities it may have for its use of the domain names.
"In a July 2001 letter to Complainant, which is attached as Exhibit 12 to Complainantís filing, Respondent clearly stated that it was exploring additional business opportunities to make use of the domain names which would not cause reasonable confusion with Complainantís goods and services. This communication ... clearly stated that Respondent believes it has a legitimate interest in respect of the domain names. Respondent continues to believe it is making a legitimate and fair use of the domain names in question.
"Respondent has communicated to Complainant and has established that it has no intent to mislead or divert customers or to tarnish the trademark or service mark of Complainant."
(3) Bad Faith
Artís asserts it did not register and has not used the domain names in bad faith. Artí s notes that upon notification from Kejr that "some confusion may exist between the domain names ... and the rights Complainant has in certain trademarks," Artís in good faith discontinued the use of the domain names. Artís avers the domain names were not registered in an effort to prevent Kejr from reflecting its trademarks in a corresponding domain name. Rather, Kejr "very easily could have registered the domain names in question here at any time prior to the Respondents [sic] doing so." Artís notes that Kejr acknowledges that such opportunity existed, and that "many trademark owners register domain names which are similar and/or identical to their trademark." Artís contends that Kejrís failure to register the domain names does not support a conclusion of bad faith on Artí s part.
Artís avers that the domain names were not registered for the purpose of disrupting Kejrís business. Artís iterates that both parties are "in the business of manufacturing and selling products in the direct push, soil sampling and drilling industries," and "Geoprobe" has "attained Ďgenericí characteristics within the industry." Artís asserts the domain names were registered "in the normal course of business."
Citing Policy ∂∂ 4.(b) and 4.(c), Artís avers it immediately discontinued use of domain names which were not registered primarily for the purpose of transferring the registrations to Kejr or a competitor. Artís repeats that the domain names were not registered to prevent Kejr "from reflecting the mark in a corresponding domain name," and Artís has not engaged in a pattern of such conduct. Artí s avers:
"On the contrary, the Respondent discontinued the use of the domain names in question although Respondent engages in the bona fide provision of goods and services within the industry that recognizes the generic nature of the terms within the domain names at issue."
The Response does not seek any specific relief. It concludes with counselís certification as to completeness and accuracy.
5. Discussion and Findings
Paragraph 4.(a) of the Policy directs that Kejr must prove, with respect to each domain name in issue, each of the following:
(i) The domain name is identical or confusingly similar to a mark in which Kejr has rights, and
(ii) Artís 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.
a. Identity or Confusing Similarity
Kejr has the burden of proving this element and each of the other two elements of Paragraph 4.(a) of the Policy.
Kejr asserts trademark rights in its registered trademark "Geoprobe", its registered service mark "Geoprobe Systems", and its domain names <geoprobe.com> and <geoprobesystems.com>. For purposes of the panelís analysis of the Paragraph 4.(a)(i) element, it is sufficient to focus on Kejrís registered service mark "Geoprobe Systems".
It is beyond dispute that, under United States law, Kejr has rights in the service mark "Geoprobe Systems" with respect to the services specified in the certificate of registration. The registration issued on the Principal Register of the United States Patent and Trademark Office almost four years before Artís registered the two domain names in issue. Kejrís certificate of registration is prima facie evidence of Kejrís "exclusive right to use the mark in commerce [in the United States] on or in connection with the goods or services specified ... ." 15 U.S.C. ß 1057(b). Artís concedes that both parties have competed for years in providing the same or similar products and services to the same customers within the same industry. It is too late for Artís simply to challenge Kejrís registered marks on the basis of a naked argument, unadorned with any supporting evidence, that the registered marks are "generic" or that others use the term "Geoprobe".
Ample authority supports the conclusion that each domain name in issue is virtually identical, or confusingly similar, to the registered service mark "Geoprobe Systems". Neither the deletion of an "s" to form a singular form of a mark, nor the running together of the two words comprising the mark, detracts from "identity" as that term has been construed in connection with Policy Paragraph 4.(a)(i). E.g., Aurora Foods v. David Paul Jones, WIPO D2000-0274. Even if there were no such identity, it is apparent from this record that each domain name in issue is confusingly similar to the registered service mark.6 Also, that <geosystems.net> is in a different top level domain from ".com" is not relevant in this analysis.7
In light of the foregoing, on this record, the Panel finds that Kejr has carried its burden of proof under Paragraph 4.(a)(i) as to the domain names in issue.
b. Rights or Legitimate Interests
Kejrís prior use and registration of the service mark "Geoprobe Systems" does not alone preclude Artís from having any rights or legitimate interests in the domain names in issue. The panel must consider the rights and interests Artís claims and its purpose in asserting such rights and interests. Policy Paragraph 4.(c) provides illustrative circumstances which may demonstrate Artís rights and interests in one or more of the domain names.
On this record, the panel finds that (1) Artís only recently registered and used the two domain names in connection with its offering of goods and services it had offered for years in competition with Kejr, (2) Artís use of the two domain names was intended to send directly to Artís main web site customers looking for a Kejr website, and (3) Artís failed to find another use for the two domain names at least during nine month period from mid-March 2001, to the filing of Artís Response in this proceeding on December 20, 2001. While Artís may have been for years a bona fide manufacturer and seller of goods and provider of services that compete with Kejrís goods and services, it is only common sense to conclude that Artís must have been aware that its recent use of the two domain names would be and was diverting to its main web site customers intending to go to Kejrís web site.
The <ams-samplers.com> domain name for Artís main website was registered on November 15, 1996 (Annex 8), four years before Artís registered the two domain names in dispute (Annex 1), and more than four months after Kejr registered <geoprobesystems.com> (Annex 5). It is entirely appropriate to conclude that (1) Artís was fully familiar with its competitor Kejrís websites, and (2) Artís intended to gain commercially from Artís use of the two domain names to divert customers to its main web site. Artís alleged intent to "to leverage the ubiquitous nature of the internet" is entirely consistent with such conclusion and in no way supports a conclusion that Artís has had rights or legitimate interests in the domain names in issue.
As stated in Section a. above, Artís unsupported attack on Kejrís registered marks carries no weight. The allegedly "generic" character of Kejrís marks, and in particular the registered service mark, should be readily evidenced by contemporaneous literature and documents, if the allegation has merit. Artís has provided no such support. Artís ipse dixit cannot alone establish that Kejrís marks are generic or that somehow Artís has rights superior to Kejrís exclusive rights.
The Panel finds that Kejr has carried its burden of proof with regard to Paragraph 4.(a)(ii) as to the two domain names in issue.
c. Registration and Use in Bad Faith
In appropriate circumstances, bad faith registration and use of a contested domain name can be inferred from circumstantial evidence. Both registration in bad faith and use in bad faith must be proved by Complainants.
Paragraph 4.(b) of the Policy sets out four illustrative circumstances of "evidence of the registration and use of a domain name in bad faith." The third and fourth illustrative circumstances fit the facts here.
Paragraph 4.(b)(iii) relates to registration of the domain name in issue "primarily for the purpose of disrupting the business of a competitor." As discussed in Section b. above, on this record it is entirely reasonable to conclude that at least one of Artís purposes, if not the primary purpose, in registering the two domain names in issue was to disrupt Kejrís business. Even if one were to infer that Artís believed from October 5, 2000, forward that its registrations were justified because Kejrís registered marks were "generic", that would not justify Artís actions.
Kejrís U.S. registration of "Geoprobe Systems" in 1999, and its U.S. registration of "Geoprobe" in 1990, were both based on uses in commerce no later than February 1988. Accordingly, as a matter of law, when it registered the two domains in October 2000, -- more than 12 years after Kejrís first use of its registered marks --, Artís was charged with knowledge of Kejrís exclusive right to use those marks in connection with goods and services which competed directly with Artís goods and services. As a matter of law, on this record, Artís belief to the contrary is not relevant. This is especially so in light of Artís fragile and ineffective distinctions between Kejrís registered service mark "Geoprobe Systems" and Artís two domain names (Section a. above). The plain likelihood that Artís domain names would divert potential Kejr customers to a site they did not intend to reach, i.e. Artís main web site, renders Paragraph 4.(b)(iii) applicable to Artís conduct.
Paragraph 4.(b)(iv) refers to an intentional attempt to attract, for commercial gain, internet users to the domain name registrantí s site, by creating a likelihood of confusion with the Complainantís mark as to "the source, sponsorship ... of [domain name registrantís] web site ... or of a product or service on [domain name registrantís] web site ...." The finding of virtual identity of the domain names in issue with Kejrís registered service mark, and at minimum a likelihood of confusion (Section a. above), causes Paragraph 4.(b)(iv) to be applicable to Artís conduct here. Artís concedes that Artís has for more than a decade manufactured and offered the same or similar products as Kejr to the same customers in the same industry. It is entirely valid to infer that Artís must have intentionally attempted to attract customers to its web site by way of the likelihood of confusion with Kejrís registered marks Artís necessarily created by registering the two domain names in issue and operating web sites at those addresses which linked the internet user directly to Artís main web site.
Artís failure to find another use of the domain names, subsequent to its discontinuing the practice of linking, is consistent with the conclusion that Artís primary purpose and intent were to disrupt Kejrís business and to attract potential Kejr customers by creating a likelihood of confusion. Art is not assisted by assertions here or in Artís counselís July 9, 2001 letter, (Annex 12) that it is not Artís intention to use "these marks [i.e. the two domain names in issue] ... in a fashion which would cause reasonable confusion with the goods and/or services rendered by [Kejr]." This is a nonsensical and irrelevant criterion. The law does not refer to "reasonable" confusion, whatever that is. The law refers to "likelihood" of confusion, which on this record is abundantly plain. In light of Artís July 9, 2001 assertions, and its assertions in its Response here, unless the domain names in issue are transferred to Kejr, Kejr will be left facing the in terrorem effect of Artís resuming use of either or both of the domain names to disrupt Kejrís business or to attract Kejr customers to Artís main web site because of the likelihood of confusion Artís will again have created.
The Panel finds that, under Paragraph 4.(a)(iii), Artís has registered and used each of the two domain names in issue in bad faith.
In light of the findings by the panel, the panel decides that Kejr has met its burden of proof with respect to each of the three elements of Policy, Paragraph 4.(a).
Accordingly, the panel requires that the registrations of each of the two domain names in issue (i.e., <geoprobesystem.com> and <geoprobesystem.net>) be transferred to Kejr.
David W. Plant
Dated: January 22, 2002
1. To this layman's eye, the two pages at Annexes 6 and 7 do not so readily reveal the directly competitive nature of the products and services offered on the sites. However, Art's concedes the point.
2. D2000-1768, NetWizards v. Spectrum Enterprises, appears to have served as a model for Kejr's averments.
3. Kejr appears to refer to its counsel's letter of February 13, 2001 to Art's (Annex 9).
4. On this record, Kejr's rights are clearer with respect to the two registered marks than the two Kejr domain names. The virtual identity of Art's two domain names to Kejr's registered service mark "Geoprobe Systems" permits the panel to focus on that mark in connection with Paragraph 4.(a)(i).
5. Art's citation to 15 U.S.C. § 1157,
which sets out definitions, does not avail Art's on this score.