WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kirkbi AG v. Michele Dinoia
Case No. D2003-0038
1. The Parties
Complainant is Kirkbi AG, a Swiss corporation of Baar, Switzerland represented by Georges Nahitchevansky, Esq., of Fross Zelnick Lehrman & Zissu, P.C., New York City, United States of America.
Respondent is Michele Dinoia of Pineto, Italy, represented by Avvocato Valerio Donnini of Pescara, Italy.
2. The Domain Name and Registrar
The disputed domain name <legoclub.com> is registered with Alldomains.com, of Concord, California, United States of America.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") by email on January 17, 2003, and in hard copy on January 20, 2003. It correctly named "Legoclub.com" (at an address in Florida) as Respondent. Between January 17, 2003, when Complainant transmitted the Complaint by email to Legoclub.com, and January 21, 2003, when the disputed domain name was locked by the Registrar, the name of the registrant changed from Legoclub.com to Michele Dinoia.
On January 20, 2003, the Center acknowledged receipt of the Complaint and transmitted by email to the Registrar a verification request regarding the disputed domain name, including a request that the disputed domain name be locked. On January 21, 2003, the Registrar stated that Michele Dinoia (at the same address in Florida) was then listed as the registrant and as the administrative, billing, and zone contact (as he had been before the change in registrant name).
On January 24, 2003, Complainant filed an amended Complaint naming Michele Dinoia as Respondent. That day Respondent announced that his address has been in Italy for the last year and a half and that he had been unsuccessful in having it changed by the Registrar. On January 27, 2003, the Center verified that the Amended 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 Respondent of the Amended Complaint and the proceedings commenced on January 27, 2003. In accordance with the Rules, paragraph 5(a), the due date for the Response was February 16, 2003. The Response was filed with the Center by email and in hard copy on February 14, 2003.
The Center appointed Alan L. Limbury as panelist on February 26, 2003, Mr. Limbury having submitted a Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. The Panel finds that it was properly constituted.
The case file sent by the Center to the Panel included, as is usual, copies of the Centerís communications with the parties and the Registrar.
The language of the proceeding was English, being the language of the registration agreement.
On February 26, 2003, Complainant filed a request to submit a Reply to the Response, together with its proposed Reply. On February 28, 2003, Respondent filed a request to submit a Rejoinder to the Reply, together with its proposed Rejoinder. Each party argued strenuously that its submission should be admitted into evidence before the Panel. In particular Complainant argued that there exist "new, pertinent facts that did not arise until after submission of the complaint", citing Gordon Sumner, p/k/a Sting v. Michael Urvan, WIPO D2000-0596.
Many panels have held that additional submissions are inappropriate except in the rarest of circumstances, such as discovery of newly discovered evidence not reasonably available to the submitting party at the time of its initial submission, or arguments by the respondent that the complainant could not reasonably have anticipated: CRS Technology Corp. v. CondeNet, Inc., NAF FA0002000093547; Plaza Operating Partners, Ltd.; Document Technologies, Inc. v. International Electronic Communications, Inc., WIPO Case No. D2000-0270; Universal City Studios, Inc. v. G.A.B. Enterprises, WIPO Case No. D2000-0416; Wal-Mart Stores, Inc. v. Richard MacLeod, WIPO D2000-0662; Electronic Commerce Media, Inc. v. Taos Mountain, NAF FA0008000095344; Parfums Christian Dior S.A. v. Jadore, WIPO Case No. D2000-0938; Viz Communications, Inc. v. Redsun dba www.animerica.com, WIPO Case No. D2000-0905 and Goldline International, Inc. v. Gold Line, WIPO Case No. D2000-1151.
Here the proposed Reply does not contain evidence that was unavailable at the time of the filing of the Complaint, nor has Respondent raised arguments that Complainant could not reasonably have anticipated. There are no exceptional circumstances that would otherwise justify its admission into evidence. Accordingly, the Panel does not admit the proposed reply to the Response and has had no regard to it in making this determination. It follows that the proposed Rejoinder is also rejected and disregarded.
4. Factual Background
Since 1961, Complainant has used the trademark LEGO (derived from the first two letters of the two Danish words "leg godt", meaning "play well") in connection with construction toys. In the United States and numerous other countries throughout the world Complainant is the registered proprietor of the trademark LEGO and of other marks incorporating the word LEGO, including in particular U.S. Registration No. 2,065,901 LEGO for "on-line fan club services for users of construction toys rendered via a world-wide computer network, in class 41", first used in commerce in 1996. The mark LEGO is one of the most famous in the world.
At its website "www.lego.com" Complainant has for several years used the expression LEGO CLUB in relation to web pages for a LEGO enthusiastsí online membership club.
Having previously been registered under the name "Legoclub" to a party not shown to have any connection with Respondent, the disputed domain name was deactivated and became available again for registration on December 6, 2002, on which day it was registered by Respondent under the name "Legoclub.com", with Respondent as Administrative Contact. It remained registered under that name until shortly after the Complaint was filed on January 17, 2003.
On December 9, 2002, three days after having registered the disputed domain name, Respondent sent an email to Global Business Consultants LLC, a Florida-based web design and hosting company, in which he set out the characteristics of a website at "www.legoclub.com", which he wished to have constructed and in operation by January 15, 2003. Those characteristics included a chat and discussion forum regarding LEGO products, with the possibility of providing free emails to all users, with their own login and password access to a reserved area. He received a reply dated December 13, 2002, stating that such a site could not be put on line before the first days of February 2003.
Between December 13, 2002, and January 17, 2003, Respondent used the disputed domain name to direct web traffic to a cost-per-click search engine known as SearchPort, operated by a company known as NetVisibility, Inc., which pays domain name owners for traffic they generate and shares with them advertising revenues derived from such traffic (Complaint, Exhibits J, L and M).
5. Partiesí Contentions
The disputed domain name is identical or confusingly similar to Complainantís LEGO and LEGO CLUB marks.
Respondent has no rights or legitimate interests in respect of the disputed domain name, which Respondent registered long after Complainant had established rights in its LEGO and LEGO CLUB marks through extensive use: see Fiber-Shield Industries, Inc. v. Fiber Shield LTD, NAF 1000092054. Where, as here, Complainantís marks are so well known and recognized, there can be no legitimate use by Respondent: Guerlain S.A. v. PeiKang, WIPO Case No. D2000-0055.
There exists no relationship between Complainant and Respondent that would give rise to any license, permission, or authorization by which Respondent could own or use the dispute domain name.
Respondent is not commonly known by the disputed domain name, as shown by its registration information, and is not making legitimate non-commercial or fair use of it.
Since LEGO and LEGO CLUB are well-known marks and Respondent has no rights in these marks, the only reason why Respondent could have wanted to register and use a domain name consisting of the LEGO CLUB mark plus ".COM" was that it knew of Complainantís mark and wanted to use it in a domain name in order to confuse Internet users and divert them to another web site for his own benefit, and not for any legitimate non-commercial or fair use purpose: Kosmea Pty Ltd. V. Krpanu, WIPO Case No. D2000-0948.
Respondent registered and is using the disputed domain name in bad faith. Respondent must have been aware of Complainantís famous trademark. In Veuve Clicquot Ponsardin v. The Polygenix Group Co., WIPO Case No. D2000-0163, bad faith was found where a domain name "is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith".
Respondent has had a pattern of using fictitious names to conceal his identity in registering domain names, such as "no" and "Szk.com." He has also used numerous addresses for his domain name registrations and related activities, including addresses in Pineto, Italy, Paris, France and Largo, Florida. Such use of fictitious registration information is in and of itself evidence of bad faith: Park Place Entertainment Corporation v. Bowno, WIPO Case No. D2001-1410.
Respondent has a pattern of registering domain names containing the trademarks and names of third parties and using them to direct web traffic to web sites from which he derives a financial benefit: Anheuser-Busch, Inc. v. Michele Dinoia, NAF FA0206000114465; Venator Group Retail Inc. v. Michele Dinoia d/b/a SZK.com, NAF FA0110000101506 and Geoffrey, Inc. v. no aka Michele Dinoia, NAF FA0201000104089.
Respondent currently owns a number of domain names based on third party trademarks or names (including a number of typo domains) including CARLITO.COM, DRUDGREPORT.COM, CARMELO.ORG, U3.ORG, 4M.ORG, OOGLE.NET, KBARS.COM and CAPITLONE.COM. He is known to be a "high volume domain registrant" and has stated that he wants to "open a Registrar to register domain names."
Respondent derives a financial benefit from the web traffic that is diverted through the LEGOCLUB.COM domain name to the SearchPort search engine. In addition, Respondent receives, upon information and belief, an additional financial benefit from pop-up advertisements that appear when a web user arrives at "legoclub.com".
Respondent is using the goodwill and fame of Complainantís marks in bad faith in order improperly to benefit Respondent financially in violation of paragraph 4(b)(iv) of the Policy.
Trademark rights cannot be established in the words LEGO CLUB, as that mark is based on a generic word, club, which is not suggestive of the services of Complainant.
Complainant has not registered the mark LEGOCLUB nor produced evidence of any pending applications. Where there is reliance on an unregistered trademark it is incumbent on a Complainant to provide sufficiently strong and compelling evidence of rights and reputation in the mark such that this is strongly associated and identified with the Complainant: Gordano Limited v. NT mail server, WIPO Case No. D2002-0277. This proof is even more necessary where the mark contains or comprises generic or descriptive terms, as in the present case.
Use of the mark LEGO at the beginning of a domain name, followed by a generic term for not-for-profit services not closely associated with the LEGO company, is unlikely to suggest that the LEGO company is the source of the products to which the domain name refers.
Complainantís only evidence on the issue of acquired distinctiveness or secondary meaning is in the nature of product reviews or web site offering Complainantís services. This falls short of proving that the terms have acquired secondary meaning or distinctiveness in the eyes of the purchasing public. Complainant has not met the onus of proof that a valid mark exists in the words LEGO CLUB and that, should the mark exist, it is deemed inherently distinctive.
Further, given the presence of a disclaimer on the web site, there is no proof of confusing similarity between Complainantís mark and the web site as to trade origin. Moreover, the expression "club" is not so closely and directly linked to the business of Complainant Ė which is in toys Ė that a consumer is likely to be confused when coming upon the web site.
Complainant cannot claim to have exclusive rights in the words LEGOCLUB, since another domain name, <secretlegoclub.com>, registered since 2001 by an English company, incorporates the words "lego" and "club".
Complainant has registered as a mark only the two syllables "LEGO". The domain name in question, <legoclub.com> is different from the trademarked word "LEGO", given the presence of the differentiating element "club". The registration of two syllables does not give a registrant the right to all domain names containing the two syllables. The holder of a trademark in two syllables is not entitled to obtain all domain names that contain the two syllables: Chantelle v. Marvin Anhalt, WIPO Case No. D2001-1181 <chantellebra.com> and <chantellebras.com>.
A few days after the registration and before any notice from Complainant, Respondent negotiated with an Italian Company, operating as webmaster, in order to have the web site built, with free e-mail, chat and forum. This circumstance proves that Respondent was preparing to use the domain name with a bona fide offering of services and demonstrates the legitimate interest of Respondent in respect of the disputed domain name: INT Media Group, Inc. v. Vergara, WIPO Case No. D2002-0249.
The disputed domain name was registered by Respondent to provide to customers a site containing opinions, ideas, memories or criticism regarding Lego toys; as the Panel can check, and evidenced by a print-up of the page of the website, which is still under construction, Respondent operates a free-speech forum on the web site. That kind of activity is considered legitimate under the Policy: X/Open Company Limited v. Expeditious Investments, WIPO Case No. D2002-0294.
The only activity run on the web site is to allow people to talk about their favourite toys, without commercial use of the domain name. In fact, Respondent has no revenue from that web site, as there is no advertising or commercial activity run through it. Respondent is not using the website for commercial purposes, has even posted a disclaimer on the website homepage, and has included a forum for criticism and commentary on the site so that a reasonably prudent Internet user can tell that the site is not the trademark holderís "official" site: Western Hay Company v. Carl Forester, NAF FA0001000093466 (Internet user who arrived at respondentís "discussion forum" website would not be confused).
Respondent is not misleadingly diverting users to his website, as he has posted adequate disclaimers as to the source of the website. His actions are not intended to tarnish, or have tarnished, Complainantsí marks. Nor have Respondentís registration and use of the disputed domain name harmed Complainant commercially: Bridgestone Firestone, Inc., Bridgestone/Firestone Research, Inc., and Bridgestone Corporation v. Jack Myers, WIPO Case No. D2000-0190.
As the legislative history surrounding passage of the U.S. "Anticybersquatting Consumer Protection Act" indicates, use of a mark in a domain name where the Internet site involves commentary, comparative advertising, criticism, parody, or news reporting is beyond the scope of the law. As in many Panelsí view, it is also beyond the scope of the Policy: TMP Worldwide Inc. v. Jennifer L. Potter, WIPO Case No. D2000-0536.
The evidence demonstrates that Respondent has legitimate rights or interests in the disputed domain name. The registration of the site to make information regarding Lego toys more widely accessible, without any intent for commercial gain, is clearly fair use: Bosley Medical Group and Bosley Medical Institute, Inc. v. Michael Kremer, WIPO Case No. D2000-1647; Koninklijke Philips Electronics N.V. v. Manageware, WIPO Case No. D2001-0796.
Here, there is no diversion "for commercial gain" and thus no loss of legitimacy. That some Internet users might initially be confused into thinking that, because of the use of the mark in the disputed domain name, <legoclub.com> is Complainantís official web site is of no moment. Any such confusion would immediately be dispelled by Respondentís prominent disclaimer. In any event, such a low level of confusion is a price worth paying to preserve the free exchange of ideas via the Internet. A user who misleadingly stumbles upon Respondentís site while looking for Complainantís official site need only click the "back" button to return to his search. The web site Respondent operates at the disputed domain name is maintained as a genuine criticism site. The goals of the Policy are limited and do not extend to insulating trademark holders from contrary and critical views when such views are legitimately expressed without an intention for commercial gain. As stated by the Panel in Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505, use of the Policy to provide such insulation would radically undermine freedom of discourse on the Internet and would undercut the free and orderly exchange of ideas that the Policy seeks to promote.
Complainant has failed to prove that Respondent lacks a legitimate interest in the disputed domain name. In particular, it has failed to prove that Respondent is not entitled to the protections of paragraph 4(c)(i) and (iii) of the Policy.
The use of a fictitious name as registrant cannot be considered as bad faith per se. Complainant bears the onus of proof of the bad faith of Respondent in the specific case. However, a print-up of registrar Alldomainís whois records for Legoclub.com displays Michele Dinoia as registrant of the domain name <legoclub.com>. In this matter, the first argument of Complainant clearly can be of no moment in the present case.
The pattern of conduct of Respondent in the present case is that of registering the disputed domain name to operate a free-speech web site: any other statement is not furnished of evidence, as the Panel can check. That, in the UDRP cases cited by Complainant to establish the bad faith of Respondent, the domain names registered by Respondent were transferred to the complainants, was due to different reasons: in the anheuserbusch.com case, Respondent, before the decision, agreed to transfer the name to complainant, sending back to complainant the cease and desist letter. In the kidsrus.com case Respondent submitted the dispute to an Italian Court, and the action ended with a transaction between the parties.
The domain names registered by Respondent and relied upon by Complainant as evidence of bad faith are generic names, like many others registered by Respondent. Such activity is not per se prohibited, as stated by many panels: John Fairfax Publications Pty Ltd v. Domain Names 4U and Fred Gray, WIPO Case No. D2000-1403; Todito.com v Dinoia, WIPO Case No. D2002-0620.
Even selling a domain name is not per se prohibited; it is prohibited only if there is trademark infringement and lack of legitimate interest: Manchester Airport PLC v. Club Club Limited, WIPO Case No. D2000-0638. Registration of an ordinary word as a domain name and use of that domain name for that ordinary, non-trademark significance, can be a legitimate interest Thrifty, Inc. and Thrifty Rent-A-Car System, Inc. v. Peter George, WIPO Case No. D2002-0140.
Complainantís argument that Respondentís registration of those domain names, among others, shows a pattern of cybersquatting, is borderline frivolous.
Moreover, as the web site will operate as free-speech forum, there is no evidence that Respondent registered or used <legoclub.com> to create a likelihood of confusion. Nor is there any evidence to suggest that Respondent would benefit from the use of the domain name <legoclub.com> or its association with Complainant. Also, there is no evidence that Respondent was using <legoclub.com> to sell products that are competitive with those of Complainant. Clearly, anybody who goes to the <legoclub.com> website would know immediately that it has not reached Complainant, given the presence of a prominent disclaimer. Respondentís use of the disputed domain name has not prevented Complainant from making its commercial presence known on the Internet, as Complainant holds the web site "www.lego.com".
Respondent is not seeking to disrupt Complainantís business, even because Respondentís web site is in Italian and rationally it could not commercially harm Complainant, which appears to market its products worldwide.
Here, Respondent has no commercial purpose and is a sort of commentator, allowing customers and himself to exercise their fair use and free speech rights. As stated in Bosley Medical Group and Bosley MedicalInstitute, Inc. v. Michael Kremer, WIPO Case No. D2000-1647, the ICANN domain name proceedings were intended to provide a swift and inexpensive remedy for cybersquatting, not to provide trademark holders with a monopoly over every permutation of their marks in domain names or a weapon to employ against domain name registrants exercising legitimate free speech and fair use rights.
Complainant has not met its burden of proof under Paragraph 4(a)(iii), as no evidence was provided that the domain name was both registered and is used in bad faith.
6. Discussion and Findings
A. Rights in a mark
Complainant has not provided sufficient evidence to establish that it has acquired, through use, common law rights in the combination of the words LEGO CLUB. However, Complainant has established that it has registered trademark rights in the word LEGO in the United States and other countries and that that mark is famous.
B. Identical or Confusingly Similar
The test of confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone, independent of the other marketing and use factors usually considered in trademark infringement or unfair competition cases. See BWT Brands, Inc. and British Am. Tobacco (Brands), Inc v. NABR, WIPO Case No. D2001-1480; Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505; Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662; Koninklijke Philips Elecs. N.V. v. In Seo Kim, WIPO Case No. D2001-1195; Energy Source Inc. v. Your Energy Source, NAF Case No. FA 96364; Vivendi Universal v. Mr. Jay David Sallen and GO247.COM, Inc., WIPO Case No. D2001-1121 and the cases there cited.
The dominant and distinctive feature of the disputed domain name is Complainantís famous trademark LEGO. The addition of the generic word CLUB does nothing to detract from the instant identification with Complainant conveyed by the mark and instead suggests a club for people interested in Complainantís toys, precisely the service provided by Complainant under its LEGO mark at its <lego.com> website. See Viacom International Inc. v. Elephantronics, WIPO Case No. D2001-0921 (<mtvclubs.com> confusingly similar to MTV mark); Isleworth Land Company v. Lost In Space, SA, NAF FA0208000117330 (<isleworthcountryclub.com> confusingly similar to ISLEWORTH mark) and Altadis S.A. v. Gourmetabaco S.L., WIPO Case No. D2001-1229 (<altadis-club> confusingly similar to ALTADIS mark).
The TLD ".com" has no source identification function and cannot serve any trademark purpose: In re Martin Container Inc., 65 USPQ2d 1058 (June 11, 2002); Isleworth (supra).
Accordingly, the Panel finds the disputed domain name is confusingly similar to Complainantís famous LEGO mark.
Complainant has established this element.
C. Rights or Legitimate Interests
Respondent is not commonly known by the disputed domain name and is not licensed or otherwise authorized by Complainant to use its LEGO mark nor to register the disputed domain name. It is clear Respondent was well aware of the LEGO mark when he registered the disputed domain name and he has made no attempt to argue otherwise. These circumstances are sufficient to constitute a prima facie showing by Complainant of absence of rights or legitimate interest in the disputed domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited.
Paragraph 4(c) of the Policy sets out, without limitation, circumstances which, if proved, establish the registrantís rights to or legitimate interests in the disputed domain name. The respondent relies on the circumstances specified in sub-paragraph 4(c)(i):
"before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services".
Even perfunctory preparations have been held to suffice for this purpose: Shirmax Retail Ltd. v. CES Marketing Group, Inc., eResolution AF-0104; Lumena s-ka so.o. v. Express Ventures Ltd., NAF FA00030000094375 and Royal Bank of Canada v. Xross, eResolution AF-0133. However, in cases where a complainantís mark is arbitrary or so famous that consumers would be likely to perceive a connection across a wide range of goods or services, it is unlikely that a respondent can develop a legitimate interest in using a domain name confusingly similar to the complainantís mark: Goldline International, Inc. v. Gold Line, WIPO Case No. D2000-1151.
As at the date on which the Complaint was filed, January 17, 2003, (being the day on which notice of this dispute was first given to Respondent) and since at least December 13, 2002, Respondent used the disputed domain name to direct web traffic to the SearchPort cost-per-click search engine operated by NetVisibility, Inc., which pays domain name owners for traffic they generate and shares with them advertising revenues derived from such traffic. Respondent does not deny this nor the implication that he derived such revenue. He makes no effort to explain it.
Instead, Respondent relies upon his emailed instruction of December 9, 2002, to Global Business Consultants LLC and his establishment (subsequent to receiving notice of the Complaint) of a "free speech" website with a disclaimer of any association with LEGO. It is clear from that instruction that Respondent intended to attract to his proposed website Internauts interested in Complainantís famous LEGO products. Respondent does not deny that, pending the establishment of his discussion forum, he used the disputed domain name for commercial gain.
Since the discussion site was not established before notice of this dispute was given to Respondent, its content cannot be taken into account in determining this Complaint. Respondentís case on this issue must rest entirely on the instruction he gave on December 9, 2002.
The Panel accepts that Respondent on December 9, 2002, intended to establish a non-commercial free speech site devoted to issues relating to Complainantís LEGO products and that this was one of his intentions when he registered the disputed domain name on December 6, 2002. However, the Panel also accepts that, as at December 13, 2002, Respondent intended to use the disputed domain name for commercial gain pending establishment of that site and that, coming so soon after he registered the disputed domain name, this was also one of his intentions at that time. Use which intentionally trades on the fame of another cannot constitute a Ďbona fideí offering of goods or services: Madonna Ciccone, p/k/a Madonna v. Dan Parisi and "Madonna.com", WIPO Case No. D2000-0847.
Under these circumstances the Panel finds the evidence of Respondentís actual use of the disputed domain name for commercial gain prior to notice of this dispute more persuasive on the issue of legitimacy than the evidence of Respondentís preparations to use the disputed domain name for a free speech site. Given the revenues Respondent does not deny having gained from his actual use of the disputed domain name prior to notice, there must be some doubt as to whether and, if so, when any non-commercial discussion forum would have been established.
The Panel finds Respondent does not have any rights or legitimate interest in the disputed domain name. Complainant has established this element.
D. Registered and Used in Bad Faith
In SportSoft Golf, Inc. v. Hale Irwinís Golfersí Passport, NAF FA94956, a finding of bad faith was made where respondent "knew or should have known" of the registration and use of the trademark prior to registering the domain name. Likewise Marriott International, Inc. v. John Marriot, NAF FA94737; Canada Inc. v. Sandro Ursino, eResolution AF-0211 and Centeon L.L.C./Aventis Behring L.L.C. v. Ebiotech.com, NAF FA95037.
The Panel has found that Respondent registered the disputed domain name with knowledge of Complainantís famous mark, intending to use the domain name for commercial gain by attracting web traffic seeking a site associated with Complainant or its LEGO products, pending establishment of his proposed discussion forum website. Under these circumstances the Panel finds Respondent registered the disputed domain name in bad faith.
The Panel has also found that Respondent used the disputed domain name for that purpose prior to notice of this dispute. Under these circumstances the Panel finds Respondent has used the disputed domain name in bad faith.
It is unnecessary to have resort to the sub-paragraphs of paragraph 4(b) of the Policy, which are not exhaustive.
Complainant has established this element.
For all the foregoing reasons, in accordance with Paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the Panel directs that the domain name <legoclub.com> be transferred to Complainant.
Alan L. Limbury
Dated: March 9, 2003