Generic Top Level Domain Name (gTLD) Decisions

World Intellectual Property Organization

P.O. BOX 50191
MINNEAPOLIS, MINNESOTA 55405 USA

The above entitled matter came on for an administrative hearing on March 9, 2000, before a three member panel consisting of the undersigned, Judge Carolyn M. Johnson and Judge Charles K. McCotter. After due consideration of the written submitted record and full discussion by the panel, the following unanimous decision is made:

PROCEDURAL FINDINGS

Domain Name : buyerschoice.com

Domain Registrant Byers Choice Date : December 27, 1995

Domain Name Registrar Network Solution

No known conflict of interest exists with any member of the panel.

The Complaint and Response were duly filed in accordance with the rules and regulations of the National Arbitration Forum. Subsequently, both parties filed additional responses. After confirming administrative compliance, The Forum notified the Registrar, ICANN and the Complainant that the administrative proceeding had commenced in compliance with Rule 4(d).

The Respondent registered the domain name with Network Solutions, the entity that is the Registrar of the domain name. In so doing the Respondent agreed to resolve any dispute regarding its domain name through ICANN’S Uniform Domain Name Dispute Resolution Policy.

The Complaint is based on the trademark "Buyers Choice" as registered by James Frank Pearson on November 22, 1994.

FINDINGS OF FACT

1. The Complainant is the owner of the trademark/service mark " Buyers Choice".

At the time, Mr. Pearson was in the real estate business in the state of Washington.

2. After contacting the Respondent in 1996, Mr. Pearson filed a dispute notice with Internic

which resulted in the domain name Buyerschoice.com being deactivated.

3. The Respondent Byers’ Choice, a Pennsylvania company, has been in the business of manufactoring figurines since 1981. Its trademark " Byers Choice" was registered in 1986. Phonetically it is the same as "Buyers Choice". From time to time, Byers’ Choice customers have misspelled the company name "Buyer’s Choice". In 1995, Byers’ Choice Ltd. registered two domain names, "Buyerschoice.com" and "Byerschoice.com". Its stated purpose was to link the two in some way so that customers who misspelled the company name would be able to contact the company.

DISSCUSSION

Pursuant to Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Resolution

Policy, Complainant must prove the following elements in order to obtain a favorable decision:

(1) The domain name must be identical or confusingly similar to a trademark or

1. The Complainant must show that the Respondent has no rights or legitimate interest in respect of the domain name that is the subject of this dispute; and

1. The Complainant must show that the domain name was registered and used in bad

The burden is on the Complainant. If he fails to prove all three elements the decision

must be for the Respondent.

DECISION

After carefully reviewing all of the submittals in detail, it is the unanimous decision of this panel that the Complainant has failed to proved the second and third elements, and therefore, it is the decision of the panel that:

The domain name "buyerschoice.com" should be reactivated and retained by the Respondent.

Louis Condon

Arbitrator for the Panel

March 9, 2000

Charleston, SC