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Generic Top Level Domain Name (gTLD) Decisions |
Community Dental Services, Inc. d/b/a
Smilecare Dental Group v. Paul Fredrikson d/b/a Smile Care
Claim Number: FA0407000296609
Complainant is Community Dental Services, Inc. d/b/a Smilecare
Dental Group (“Complainant”), represented by Farah P. Bhatti, of McDermott Will & Emery LLP, 18191 Von Karman Ave., Suite 400,
Irvine, CA, 92612. Respondent is Paul
Fredrikson Dr. Paul Fredrikson d/b/a Smile Care. (“Respondent”) is represented by Michael S Neustel, of Neustel Law Offices LTD, 2534 So. University Drive, Ste. 4,
Fargo, ND 58103.
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <smilecareteam.com>, registered with Tucows Inc.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known
conflict in
serving as Panelist in this proceeding.
Barry Schreiber as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on July 15, 2004; the Forum received
a hard copy
of the Complaint on July 19, 2004.
On July 20, 2004, Tucows Inc. confirmed by e-mail to the Forum that the
domain name <smilecareteam.com> is registered with Tucows Inc. and
that Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is
bound by the Tucows Inc. registration agreement and has thereby agreed to
resolve domain-name
disputes brought by third parties in accordance with
ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 23, 2004, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting
a deadline
of August 12, 2004 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent via e-mail,
post and fax, to all entities and
persons listed on Respondent’s registration as technical, administrative and
billing contacts,
and to postmaster@smilecareteam.com by e-mail.
A timely Response was received and determined to be complete on August
12, 2004.
On August 20, 2004, pursuant to Complainant’s
request to have the dispute decided by a single-member
Panel, the Forum appointed Barry Schreiber
as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The Domain Name and
Registrar
This
dispute concerns the domain <smilecareteam.com>
(the “Domain Name”).
The Domain Name is registered with Tucows.com, 96 Mowat Avenue,
Toronto, Ontario, Canada, M6K 3M1. The
phone number of Tucows.com is 416-535-0123.
Tucows.com has adopted the Policy and Rules, which are incorporated by
reference into its service agreement. A
copy of this agreement is attached hereto as Exhibit 2.
The Service Marks
Upon Which the Complaint is Based
This Complaint is based upon the service mark SMILECARE, which was
adopted and continually used in commerce by Complainants and its
predecessors
since at least as early as 1984.
Complainant owns three (3) federal service mark registrations for the
SMILECARE mark covering the following services: “dental insurance
underwriting
services; dental services, cosmetic dentistry services, dental restoration
services; dental hygienist services, dental
orthodontics services; organizing
pre-paid dental health care plans; insurance underwriting in the field of
dental insurance; insurance
administration in the field of dentistry; and
business management for dental offices.”
Complainants use the mark SMILECARE as the name of its over 50 dental
offices throughout the United States, which advertise and offer
a wide range of
dental insurance and dental services.
Complainant’s SMILECARE mark is used on signage and a variety of
advertising materials. Complainant also
uses the domain names <smilecare.com>, <smilecareteamsters.com> and
<smilecare-support.com> to
offer information regarding their offices and
services to the public.
Since it began using of the SMILECARE mark, Complainant has expended in
excess of twenty-five (25) million dollars advertising and
promoting its dental
services in connection with the mark.
As a result of the sales and marketing efforts described above, the
mark SMILECARE for dental services has come to be recognized by
consumers as
identifying Complainant’s dental services and has become distinctive of such
services. In addition, the SMILECARE
mark has acquired significant goodwill, wide public recognition, and fame as a
means by which Complainant
and its services are known to the public and their
source and origin are identified.
The mark SMILECARE is duly registered in the United States Patent and
Trademark Office under three (3) valid, subsisting and un-cancelled
registrations and Complainant is the owner thereof. Two (2) of the three (3) registrations owned by Complainant are
incontestable.
The mark SMILECARE is prominently used on Complainant’s website in
connection with the provision of its dental services. Consumers routinely access Complainant’s website in an effort to
find the nearest SMILECARE dental office and to obtain information
regarding
office timings, the doctors practicing in the office, and to obtain contact
information in order to make appointments.
Grounds on Which The
Complaint is Made
A. Respondent’s Domain Name is Confusingly
Similar To Complainant’s
Mark
Respondent’s registered domain name <smilecareteam.com>
is confusingly similar to the Complainant’s mark SMILECARE and the domain name
used by Complainant in connection with the legitimate
offering of services and
information bearing the mark SMILECARE, namely <smilecare.com>.
By merely adding the word “team” to Complainant’s mark, Respondent
demonstrates an intent to create confusion with Complainant’s mark
as to the
source, sponsorship, affiliation, or endorsement of Respondent’s website or of
services on its website, and is likely to
misleadingly divert web users trying
to locate the legitimate SMILECARE website.
B. Respondent
Has No Rights Or Legitimate
Interests in the
Domain Name
Counsel for Complainant sent a cease and desist letter dated June 23,
2004, to EW Web Design of Fargo, N.D., who was, as of that date,
the registered
owner of the <smilecareteam.com> domain
name. On July 2, 2004, Complainant
received a letter from counsel for Respondent stating that Respondent is the
“sole owner” of the domain
name.
Complainant notes that the Tucows.com “Whois” information was changed on
July 1, 2004 to reflect Respondent as the owner of the domain.
Prior to July 1, 2004, the Tucows.com “Whois” query showed EW Web
Design as the owner of the <smilecareteam.com>
domain name. See Exhibit 4 . EW Web Design is a web designing company who
had no legitimate interests or rights in the SMILECARE mark or name. Only after the cease and desist letter was
sent on June 23, 2004 to EW Web Design, was the “Whois” information
changed. This reflects Respondent’s
knowledge that the original and current owner of the <smilecareteam.com> domain name did not
and does not have any interests or rights in the Domain Name.
Respondent does not have any legitimate rights to the Domain Name as
Complainant is the record owner of the SMILECARE service marks. In addition, Respondent’s business name is not
SMILE CARE TEAM.
To date,
Respondent has failed to discontinue its use of the domain.
Respondent is using the domain name to promote his own dental services
at the expense of Complainant.
Respondent is using the domain to profit off of the goodwill associated
with Complainant’s mark and to promote its services under
a nationally known
and recognized mark owned by Complainant, namely, SMILECARE.
Complainant first began use of its SMILECARE mark at least as early as
1984. Complainant federally registered
its service marks with the United States Patent and Trademark Office in
1993. In addition, Complainant first
registered its domain on October 8, 1996.
Respondent first registered its <smilecareteam.com>
domain name on April 19, 2000.
Complainant, through two (2) of its Federal Trademark Registrations, had
provided constructive notice of its marks.
Such notice should have been and is presumed to have been known by
Respondent. Respondent was very well
aware of Complainant’s use of the SMILECARE trademarks and the <smilecare.com> domain name. Respondent however used his confusingly
similar domain name to promote his dental services and intended to profit off
of the goodwill associated with Complainant’s
mark and domain. Therefore, under Section 4(b)(iv) of the
Policy, Respondent has exhibited bad faith in the use and adoption of the <smilecareteam.com> domain name as
Respondent is clearly using the domain name with the intent to profit and to
trade upon the goodwill associated with
the mark SMILECARE.
Despite Complainant’s repeated requests and the correspondence between
the parties, to date Respondent has failed to articulate any
rights or legal
interests it has in the Domain Name, apart from the fact that it claims
ownership of the domain as evidenced by the
“Whois” record from Tucows.com.
C. The Domain Name
Was Registered in Bad Faith
Respondent is aware of Complainant’s United States Patent &
Trademark Registrations and the Complainant’s long-standing use of
the
SMILECARE mark, yet has refused to cease use of the domain or transfer the
domain despite evidence of such trademark ownership.
Complainant first used its service mark at least as early as 1984 and
registered its service mark with the United States Patent and
Trademark Office
in 1993. Complainant first registered
its domain name on October 8, 1996, and first used the domain name at least as
early as December 21,
1997. See
Exhibit 5. Respondent did not
register his domain until April 19, 2000, and did not use the domain name until
March 10, 2001. See Exhibit 6.
Respondent’s first use of the <smilecareteam.com>
domain name did not occur until over eight (8) years after
Complainant federally registered its service marks and over three (3) years
after Complainant first used the <smilecare.com> domain
name to promote its services. Respondent had ample constructive and actual
notice of Complainant’s rights to the SMILECARE mark and <smilecare.com> domain name and only
registered the <smilecareteam.com> domain name in an effort to profit off
of the fame and goodwill associated with Complainant’s mark and domain name,
and to promote his services
in a manner which would likely lead to confusion as
to source amongst consumers of those services.
Upon selecting a domain, Respondent was aware of Complainant’s <smilecare.com> domain name and
the services provided therewith.
Therefore, Respondent’s selection of Complainant’s domain name with the
addition of the word “team” is indicative of Respondent’s
bad faith under
Section 4(b)(iii), as Respondent registered the domain name primarily for the
purpose of disrupting the business
of a competitor, namely, Complainant.
Upon information and belief, Respondent uses the <smilecareteam.com> domain name as a
magnet to lure web users to his website and likely derives profit from such
diversion. It is believed that
Respondent is using the domain name simply to attract as many unknowing web
users to this site as possible, which
in turn is likely to lead to increased
revenues.
Based on the foregoing, Respondent’s use of Complainant’s mark in its
domain name demonstrates an intent to attract Internet users
to its own web
site for commercial gain by creating a likelihood of confusion with
Complainant’s mark as to the source, sponsorship,
affiliation, or endorsement
of his web site. See Policy
Paragraph 4(b)(iv).
In addition, Respondent’s registration of the <smilecareteam.com> domain name is a violation of Section
43(d)(1) of the United States Trademark Act, as amended by Public Law 106-113
(November 29, 1999).
D. Remedies
Requested
In accordance with Paragraph 4(b)(i) of the Policy, for the reasons
described in Section V above, Complainant requests the Administrative
Panel
appointed in this administrative proceeding issue a decision that the <smilecareteam.com> domain name be transferred to Complainant,
Community Dental Services, Inc. d/b/a SmileCare Dental Group.
B. Respondent
Dr. Fredrikson has been using the
service mark SMILE CARE since at least June, 1987 with respect to his small
dental practice in Fargo,
North Dakota.
On July 25, 1988, Dr. Fredrikson received a North Dakota State Trademark
Registration for the mark SMILE CARE.
This dispute basically involves a
frivolous trademark infringement dispute that started January 31, 2002 when
Complainant sent a cease
and desist letter to Dr. Fredrikson via its first
attorney. Dr. Fredrikson responded
immediately to the baseless accusations by Complainant with a letter dated
February 17, 2002. No further
communications were received from Complainant after Dr. Fredrikson’s letter.
21 months after Dr. Fredrikson’s
response letter, Complainant hired a second attorney who sent a second cease
and desist letter to
Dr. Fredrikson on October 24, 2003 (apparently unaware of
the first attorney’s letter). On
October 28, 2003, Dr. Fredrikson personally responded to the October 24, 2003
letter indicating that the matter was closed.
No response was received from Complainant until January 7, 2004, where
Complainant included a draft complaint attempting to scare
Dr. Fredrikson into
settling Complainant’s frivolous threats.
A number of communications occurred between Dr. Fredrikson and
Complainant regarding the alleged trademark infringement, during which,
Dr.
Fredrikson did not back down from the baseless threats by the Complainant.
Dr. Fredrikson d/b/a SMILE CARE
has owned the domain name <smilecareteam.com> since at least April 2000. See Exhibit I; Wiinanen Declaration, ¶4. Dr.
Fredrikson has published a website at <smilecareteam.com> since at least June 27, 2000. Wiinanen Declaration, ¶6; Fredrikson
Declaration, ¶5.
Sometime in March 2004, Eric
Wiinanen, Dr. Fredrikson’s web designer and website administrator, accidentally
transferred ownership
of <smilecareteam.com> to himself without the
authorization of Dr. Fredrikson. On
June 23, 2004, Complainant sent a cease and desist letter to Eric Wiinanen
regarding <smilecareteam.com>.
On July 1, 2004, Eric Wiinanen corrected the mistaken transfer of <smilecareteam.com> to accurately reflect the true
owner as Dr. Fredrikson d/b/a Smile Care.
Wiinanen Declaration,
¶10. Complainant has now initiated these proceedings in another attempt to
unlawfully claim the intellectual property rights of Dr. Fredrikson.
ii. SMILECARETEAM.COM is Not Confusingly Similar
to Complainant’s Mark
Dr. Fredrikson has continuously used the service mark SMILE
CARE since 1987. Dr. Fredrikson has
further used “Smile Care Team” on his website located at <smilecareteam.com> since March 10,
2001. Dr. Fredrikson received a North
Dakota State Trademark Registration in 1988 – many years before the Complainant
received a federal
registration.
Since the alleged infringement allegations by Complainant,
Dr. Fredrikson has gone so far as to put a disclaimer on his website
disclaiming
any affiliation with Complainant.
No intention of wrongfully diverting any web users is present. Respondent’s intention is to provide a
domain name corresponding to the service mark of his small dental practice.
There is no intent to create confusion with Complainant’s
mark. In fact, Dr. Fredrikson desires
to not be associated with Complainant and has gone so far as to disclaim any
association on his website. If users
want to access Complainant’s website, they simply have to type in <smilecare.com>,
much easier than typing in <smilecareteam.com>. Dr. Fredrikson has used this domain name
since March 2001 without Complainant ever attacking this usage. Finally, Dr. Fredrikson’s usage and state
trademark registration predate any usage of the Complainant in the State of
North Dakota
and the areas surrounding Fargo, North Dakota.
iii. Dr. Fredrikson Has Significant Rights
and Legitimate Interests in the Domain Name
Complainant’s argument is flawed due to its belief that EW
Web Design (hereinafter “EW”) was the rightful owner of <smilecareteam.com> (hereinafter “the
domain name”). Although EW was listed as the owner of the domain
name at the time Respondent sent the cease and desist letter, EW was in fact
not the actual owner of the
domain name since EW mistakenly transferred
ownership of the domain name.
Dr. Fredrikson was initially listed as the registered owner
in 2000, but due to a clerical error by EW, EW was mistakenly listed as
the
owner of the domain name in March 2004.
Wiinanen Declaration, ¶7. The discrepancy over the domain name’s true
owner has been remedied, and Respondent is now properly recorded as the true
and correct
owner of the domain name.
As the rightful owner, Dr. Fredrikson has maintained a
website on the domain name since at least by June 27, 2000. Wiinanen
Declaration, ¶6. Dating back to
at least by March 10, 2001, <archive.org> reflects the use of the domain
name by Dr. Fredrikson. Dr. Fredrikson
published and used the website found at the domain name more than 3 years prior
to this dispute.
The purpose of Respondent’s use of the disputed domain name <smilecareteam.com> is to provide a
bona fide service (dental care) to his current and potential patients in the
geographical area surrounding his dental
practice pursuant to his North Dakota
trademark rights. Dr. Fredrikson has no
intentions, nor any purpose of attracting visitors outside of his geographical
location. The disclaimer on his website
is also a clear indication that Dr. Fredrikson is not attempting to attract
Complainant’s customers.
Respondent has been unable to locate any federal
registration of the words “Smile Care Team” by Complainant. Furthermore, Complainant’s website does not
refer to a “Smile Care Team” on <smilecare.com> or any of its internal
links. Conversely, as Respondent’s
website and domain name indicate, Respondent is known, together with his
employees, as the “Smile Care
Team.”
To date, Respondent continues to rightfully use the domain
name. Contrary to Complainant’s
contentions in their Complaint, Respondent has only intended to profit off of
the goodwill of its own trademark rights.
Respondent has legitimate rights to the use of the domain
name based on its usage and registration of the phrase “SMILE CARE” as a
trademark with the North Dakota Secretary of State. The duly registered trademark rights for the State of North
Dakota date back to at least by July 25, 1988.
Respondent had no knowledge of Complainant’s mark when
“Smile Care” was first used. Fredrikson Declaration, ¶4. Respondent has expended a great deal of
resources building the reputation and goodwill associated with its own valid trademark rights for
“Smile Care” in North Dakota and common law trademark rights in the surrounding
geographic area.
Complainant has no legal interests or rights to the disputed
domain name. The domain name has been
legitimately and rightfully used by Respondent in promotion of his dentistry
practice. Respondent’s legal interest
in the domain name is valid and fully documented as shown by the attached
exhibits.
iv.
The Domain Name Was Registered in Good
Faith
Respondent only became aware of Complainant’s
self-proclaimed “long standing use” of their mark after Respondent had already
used
and registered “Smile Care” in North Dakota in 1987 and 1988, respectivly.
Thus, Respondent had no intention of disrupting any competitor’s
business. Furthermore, Respondent’s use of its own
trademark is “long standing” by the standards applied by Complainant, as it
certainly predates
Complainant’s federal trademark filing date.
Respondent has the right to use the <smilecareteam.com> domain name based
on its recording and using the words “Smile Care” as a trademark with the North
Dakota Secretary of State dating
back to at least by July 25, 1988. Additionally, Complainant’s website does not
refer to a “Smile Care Team” on <smilecare.com> or any of its internal
links. Conversely, as Respondent’s
website and domain name indicate, Respondent has been and currently is known,
together with its employees,
as the “Smile Care Team” since at least 2001.
Respondent refuses to abandon or transfer its website’s
domain name because of its own use and state registration of the SMILE CARE
mark in the State of North Dakota. The
disputed domain name was acquired by Respondent for use in promoting its own
legitimate trademark rights. Dr.
Fredrikson has no intention of disrupting the business of Complainant and
Complainant can provide no evidence to the contrary.
No attempt at confusing Respondent’s mark with Complainant’s
mark is present. This becomes
especially evident when looking at the logistics involved in this dispute. Dental practices are generally local
businesses. Complainant’s nearest
office to Respondent’s place of business is in Fort Hood, Texas, more than
1,233 miles away. It is certainly, at
the very least, unlikely that a potential patient would travel at least 1,233
miles to have a dental checkup based
on confusion as to what website the
patient was on. If the patient was from
North Dakota or another area around Fargo, North Dakota, no argument exists as
to confusion because Respondent
has already acquired the exclusive rights to
promote its business here based on his state and common law trademarks.
Respondent’s use of the domain name is a good faith attempt
to promote and use its own valid state and common law trademark rights. Respondent’s good faith efforts extend so
far as to disclaim any affiliation with Complainant on the homepage of his
website, despite
his own valid and registered rights in the domain name and
trademark. Finally, Dr. Fredrikson
registration of <smilecareteam.com>
is not a violation of the United States Trademark Act as alleged by
Complainant.
B.
REMEDIES REQUESTED.
Respondent respectfully requests that the
Administrative Panel deny any and all remedies requested by Complainant
pursuant to these
Proceedings.
FINDINGS
The Panelist finds that Complainant has not
proved each of the required three elements of Paragraph 4(a) of the Policy,
subsections
(1), (2) and (3), to wit: (1) Respondent’s domain name is identical
or confusingly similar to Complainant’s SMILECARE trademark;
(2) Respondent has
no legitimate interests with respect to the domain name; and (3) Respondent
registered and re-registered the domain
name in bad faith and hence the relief sought by
Complainant should be denied.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform
Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to
“decide a complaint
on the basis of the statements and documents submitted in
accordance with the Policy, these Rules and any rules and principles of
law
that it deems applicable.”
Paragraph 4(a) of the Policy requires that the Complainant must prove
each of the following three elements to obtain an order that
a domain name
should be cancelled or transferred:
(1)
the domain name registered by the
Respondent is identical or confusingly similar to a trademark or service mark
in which the Complainant
has rights; and
(2)
the Respondent has no rights or
legitimate interests in respect of the domain name; and
(3)
the domain name has been registered and
is being used in bad faith.
Complainant argues that Respondent’s <smilecareteam.com> domain
name is confusingly similar to Complainant’s SMILECARE mark because the domain
name fully incorporates the mark and merely
adds the generic term “team” and
the top-level domain “.com.” See Pfizer, Inc. v. Suger,
D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name
incorporates the VIAGRA mark in its entirety, and
deviates only by the addition
of the word “bomb,” the domain name is rendered confusingly similar to
Complainant’s mark); see also Body Shop
Int’l PLC v. CPIC NET, D2000-1214 (WIPO Nov. 26, 2000) (finding that
the domain name <bodyshopdigital.com> is confusingly similar to
Complainant’s
THE BODY SHOP trademark); see
also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25,
2000) (finding that the top level of the domain name such as “.net” or “.com”
does not affect the domain
name for the purpose of determining whether it is
identical or confusingly similar).
Respondent asserts that it holds
a trademark registration for the SMILECARE mark with the State of North Dakota
(Reg. No. 12,605 issued
July 25, 1988) to be used in connection with dental,
medical, and surgical appliances. The
Panel finds that Respondent has established rights in the <smilecareteam.com>
domain name based on its registration of the
SMILECARE mark. Furthermore, the Panel finds that
Respondent has been using the <smilecareteam.com> domain name for a bona fide offering of goods and services because
Respondent is using the domain name to promote its business. Thus, Respondent has rights and legitimate
interests in the domain name pursuant to Policy ¶ 4(c)(i). See Verkaik v. Crownonlinemedia.com,
D2001-1502 (WIPO March 19, 2002) (finding that Respondent’s use of the disputed
domain name to make a bona fide offering of services
bestowed rights and
legitimate interests in the domain name); see
also Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June
2, 2003) (finding that as Respondent had registered its domain name as its
business identity with
the New York County Clerk a month after registering the domain
name and then conducted his prop rental business under that name,
it had
demonstrated rights and legitimate interests in the domain name).
The Panel finds that Respondent has rights
and legitimate interests in the <smilecareteam.com>
domain name pursuant to Policy ¶ 4(a)(ii) because the domain name
describes Respondent’s business. See Canned Foods Inc. v. Ult. Search Inc., FA 96320
(Nat. Arb. Forum Feb. 13, 2001) (stating that “Respondent is using the domain
<groceryoutlet.com> for a website
that links to online resources for
groceries and similar goods. The domain
is therefore being used to describe the content of the site,” as evidence that
Respondent was making a bona fide offering
of goods or services with the
disputed domain name); see also Modern Props, Inc. v. Wallis, FA 152458
(Nat. Arb. Forum June 2, 2003) (finding that Respondents operation of a bona
fide business of online prop rentals for
over two years was evidence that
Respondent had rights or legitimate interests in the disputed domain name).
Moreover, the Panel finds that Respondent is commonly known by the <smilecareteam.com> domain name based on its trademark
registration with the State of North Dakota. The Panel finds Respondent is commonly known by the
disputed domain name, thus the Panel concludes that Respondent has rights and
legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). See World Publ’ns, Inc. v. World Pen, Seattle Pen, Inc.,
D2000-0736 (WIPO Sept. 14, 2000) (finding that as Respondent registered the trade
name "WORLD PEN" in July 1996 and had
been conducting business under
that name since that date, it had rights or legitimate interests in the
disputed domain name); see also Kryton Mktg. Div., Inc. v. Patton Gen.
Contracting, FA 123868 (Nat. Arb. Forum Oct. 21, 2002)
(holding that Respondent had rights and legitimate interests in the disputed
domain name
as it had been commonly known by the domain name and has been using
the name "liquid siding" in marketing its goods and
services since
the 1990's).
Moreover, the Panel clearly finds that
Respondent did not register and use the <smilecareteam.com> domain name to divert Internet traffic by intentionally attempting to attract
Internet users to its own commercial website by creating
a likelihood of
confusion. Therefore, the Panel may conclude that Respondent did not register
and use the domain name in bad faith
pursuant to Policy ¶ 4(b)(iv). See Chestnutt v.
Tumminelli, D2000-1758 (WIPO Feb. 2, 2001) (finding
no bad faith registration or use of the domain name <racegirl.com> where
no evidence
was presented that Respondent intended to divert business from
Complainant or for any other purpose prohibited by UDRP Rules); see also Energy Source Inc. v. Your Energy
Source, FA 96364 (Nat. Arb. Forum Feb. 19, 2001) (finding that
Respondent successfully rebutted Complainant’s averments that it registered
and
used the domain name at issue in bad faith and that Complainant produced no
credible evidence of bad faith on the part of Respondent).
DECISION
Having found that Complainant has not established all three elements
required under the ICANN Policy, the Panel concludes that relief
shall be DENIED.
Accordingly, it is Ordered that the <smilecareteam.com> domain name
remain as presently registered with the right of the Respondent to do what he
sees fit with the name.
Barry Schreiber Panelist
Dated: September 2, 2004
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