ADMINISTRATIVE PANEL DECISION

1. Parties and Contested Domain Name

Overview

1.0 What is set out under this heading of "Parties and Contested Domain Name" is discussed and found herein under the heading of "Discussion and Findings" (paragraphs 5.0 et seq under that heading), by or through information set out herein under the headings of (i) "Procedural History" (paragraphs 2.0 et seq under that heading); (ii) "Factual Background" (paragraphs 3.0 et seq under that heading); and (iii) "Parties' Contentions" (paragraphs 4.0 et seq under that heading).

The Parties

1.1 In this proceeding the parties (herein "the Parties") are (i) complainant Timothy Alan Dick of Beverly Hills, Michigan U.S.A. (herein "the Complainant"); and (ii) respondent Tim Allen Club of High Prairie, Alberta Canada (herein "the Respondent").

The Contested Domain Name

1.2 In this proceeding the contested domain name (herein "the Contested Domain Name") is timallen.com.

2. Procedural History

Overview

2.0 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 et seq under that heading) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or through one or more of admission, notice, perception and inference) any of the information set out in paragraphs 2.1.1 et seq under this heading of "Procedural History".

Events That Occurred On Or Before 8 January 2001

2.1.1 On 8 January 2001 eResolution (herein "the Provider") provided the Administrative Panel a procedural history of this proceeding, largely as set out as paragraphs 2.1.2 through 2.1.16 hereof.

2.1.2 The Complainant's complaint (herein "the Complaint") was (i) filed with the Provider in electronic format on-line using the Provider's complaint form through the Provider's website on 12 October 2000; and (ii) received by the Provider in hardcopy format on 17 October 2000. Payment was received by the Provider on 19 October 2000. The complete annexes of the Complaint were received by the Provider on 8 November 2000.

2.1.3 Upon receiving all the required information, the Provider proceeded to (i) confirm the identity of the registrar for the Contested Domain Name; (ii) verify that registrar's Whois Database and confirm all the required contact information for the Respondent; (iii) verify if the Contested Domain Name resolved to an active web page; and (iv) verify if the Complaint was administratively compliant.

2.1.4 The inquiry set out in paragraph 2.1.3 hereof lead the Provider to the following conclusions: (i) the registrar for the Contested Domain Name is Network Solutions Inc. (herein "the Registrar for the Contested Domain Name"); (ii) the Whois database contains all the required contact information; (iii) the Contested Domain Name resolves to an active web page; and (iv) the Complaint is administratively compliant.

2.1.5 On 12 October 2000 an e-mail was sent by the Provider, to the Registrar for the Contested Domain Name, to obtain confirmation and a copy of the registration agreement between the Respondent and the Registrar for the Contested Domain Name. On 13 October 2000 the requested information was received by the Provider.

2.1.6 On 13 November 2000 the Provider sent a notification to the Registrar for the Contested Domain Name in order to inquire as to the status of the Contested Domain Name, since the Whois database record was expired. On 30 November 2000 the Registrar for the Contested Domain Name confirmed to the Provider that the current domain name holder was the "Tim Allen Club".

5.7.1 The Provider then proceeded to send a copy of the Complaint in accordance with Rule 2(a) of ICANN's Rules for Uniform Domain Name Dispute Resolution Policy (herein individually "Rule" or collectively "Rules").

2.1.8 The Provider fulfilled all its responsibilities under Rule 2(a) in connection with forwarding the Complaint to the Respondent (and notifying the Complainant, the Registrar for the Contested Domain Name and ICANN) on 30 November 2000. That date is the commencement date of this administrative proceeding (herein "this proceeding").

2.7.1 Only the e-mail to the postmaster@timallen.com was returned "undeliverable". All the faxes were successful.

2.1.10 The Complaint (complaint, official notification and all the annexes) were sent via registered mail with proof of service, to the Respondent. According to Canada Post's tracking system, all were delivered.

2.1.11 On 20 December 2000 the Respondent submitted, via the Provider's web site, a response. The signed hard copy version of that response was received by the Provider on 3 January 2001; that version was [in the Provider's opinion] received in default, since [in the Provider's opinion] it arrived three calendar days after [what in the Provider's opinion was] the Supplemental Rule "7[(c)](iii)(4)(b)(i)" deadline.

2.1.12 On 4 January 2001 the Provider informed the Parties (i) of [what in the Provider's opinion was] the Respondent's [Supplemental Rule 7(c)(iii)(4)(b)(i) default] to submit the hard copies of the response to the Clerk's Office on time; and (ii) that according to Rule 5(e), in the absence of exceptional circumstances, the panel will decide the dispute based upon the complaint.

2.1.13 On 4 January 2001, the Provider contacted Mr. Rodney C. Kyle and requested that he act as the panel in this proceeding.

2.1.14 On 4 January 2001, Mr. Rodney C. Kyle accepted to act as the panel in this proceeding (herein "the Administrative Panel") and filed with the Provider a declaration of independence, and of impartiality, on the Provider's form for such in accordance with the Rule 7 and Supplemental Rules 9 and 4(a) of the Provider's Supplemental Rules, the Provider's Supplemental Rules being referred to herein individually as "Supplemental Rule" or collectively as "Supplemental Rules". (Collectively herein the Policy, the Rules, and the Supplemental Rules, as well as forms made under the Supplemental Rules, are referred to as "the Regulation".)

2.1.15 On 8 January 2001, the Complainant and the Respondent were notified, by the Provider, that the Administrative Panel had been appointed and that a decision was to be, save exceptional circumstances, handed down on 22 January 2001.

2.1.16 The Provider forwarded to the Administrative Panel by e-mail on 8 January 2001 a user name, and by fax on 8 January 2001 a password, to allow the Administrative Panel to access an automated docket management system for this proceeding on the Provider's web site.

2.1.17 On 8 January 2001 the Provider e-mailed the Administrative Panel that "We received a message from the Respondent acknowledging an explanation regarding [what in the Provider's opinion is] his default to submit the hardcopies of the Response to the Clerk's Office on time. Please inform me as soon as possible if you wish to receive this message."

Events That Occurred After 8 January 2001 But Before 18 January 2001

2.2.1 On 9 January 2001 the Administrative Panel e-mailed the Clerk's Office of eResolution to "Please deliver to me a copy of the message referred to in that e-mail." i.e. a copy of the message referred to in the e-mail quoted from in paragraph 2.1.17 hereof.

2.2.2 Later on 9 January 2001 the Clerk's Office of eResolution e-mailed the following, dated "January 04, 2001" to the Administrative Panel:

"To The Clerk and to the Panel:

"Following is an excerpt of the Clerk's letter sent to the Respondent on December 21 regarding this case.

"We interpret this to mean we have 10 calendar days by which to send in our hardcopies, either by fax or by mail. There is no mention when the hardcopy must be received at the other end. Our Canadian Priority Post envelopes with the hardcopies was originally to be sent on December 23 but our local post office was closed when the staff person assigned to send this took them down. As a result, due to holidays, they were not sent until December 27th. All of us involved at this end were not worried because we knew we were well within the time limit and we have receipts to prove this date.

"I wish to appeal to the panel the decision of the clerk to hold us in default. Our electronic copies were filed within the stated time limits, as was an addenda filed within the 3 days allowed, which, I would like to point out, contains the same wording.

"Jeff Burgar

"Following is text from the Clerks December 21 email to the Respondent which we strongly believe contains no ambiguity at all as to how long we have to mail our hardcopies:

"------------------------

"***If you wish to modify your Response form, you must e-mail your request and your modification to your Case Administrator within three calendar days.***

"2) Send a signed hardcopy format of the final version of the Response and all the annexes at the following address within 10 calendar days, starting today:

"****EITHER BY FAX to one of the following numbers according to your area* Canada: + 1 (514) 221-3004, California: +1 (650) 618-2332, New York +1 (212) 658-9811, Paris +33 1 53 01 68 86, ***OR to the postal address below the signature.***************

"--------------------------".

2.2.3 On 10 January 2001 the Administrative Panel e-mailed the Provider as follows:

"On my behalf, please do two things. Firstly, today please (i) e-mail to the Complainant, and to the Respondent, the following three paragraphs of this e-mail (including to attach the attachments referred to in the second of those three paragraphs); and (ii) e-mail me a copy of what you send them. Secondly, if and when eResolution receives from the Complainant the response referred to in the third of those three paragraphs, please send me a copy of that response.

"The Administrative Panel in this proceeding has asked eResolution that today the Clerk's Office of eResolution do two things.

"One thing is to e-mail the Complainant (cc. the Respondent) a copy of the e-mail that the Respondent had sent to the Clerk's Office of eResolution on 4 January 2001 regarding eResolution Supplemental Rule 7[(c)](iii)(4)(b)(i) default. Accordingly, please see the attached.

"The other thing is to notify the Complainant and the Respondent, which the Clerk's Office of eResolution does by this e-mail, that the Complainant shall have until 17 January 2001 to e-mail, to the Clerk's Office of eResolution and to the Respondent, a response to the e-mail that the Respondent had sent to the Clerk's Office of eResolution on 4 January 2001 regarding eResolution Supplemental Rule 7[(c)](iii)(4)(b)(i) default."

2.2.4 Later on 10 January 2001 the Administrative Panel received from the Provider an e-mail indicating the Provider had complied with both parts of the first request (i.e. parts "i" and "ii") stated in the first paragraph quoted in paragraph 2.2.3 hereof and that in so communicating with the Parties the Provider had further stated the following to them by e-mail: "Please read carefully and do not hesitate to contact the undersigned should you have any questions regarding this message."

2.2.5 By the end of 17 January 2001 the Administrative Panel had not received through the Provider a response, from the Complainant, to the e-mail that the Respondent had sent to the Clerk's Office of eResolution on 4 January 2001 regarding Supplemental Rule 7(c)(iii)(4)(b)(i) default by the Respondent.

Events That Occurred On Or After 18 January 2001 But Before 22 January 2001

2.3.1 On 18 January 2001 the Administrative Panel received an e-mail rtf attachment from the Complainant, via the Provider, which (i) in view of the last paragraph quoted in paragraph 2.6.5 hereof, seemingly was also received by the Respondent on or about the same time as it was received by the Provider; (ii) was, on behalf of the Complainant, "Dated: January 18, 2001"; and (iii) had the following body:

"This is in response the email dated January 10, 2001, from the Panelist Rodney Kyle asking that Complainant respond to Respondent's email of January 4, 2001. The deadline for this response is January 17, 2001.

"Background

"On December 20, 2000, the Respondent submitted an electronic copy of his response to the Complainant's Complaint. On December 21, 2000, the clerk informed respondent of two deficiencies:

'1) Please ensure yourself that the Response form meets the Rules and the Policy, in particular section 5(b)(i) of the Rules, which state that the Respondent must: "respond specifically to the statements and allegations contains [sic] in the Complaint and include any and all bases for the Respondent (domain- name holder) to retain registration and use of the disputed domain name."

2) Send a signed hardcopy format of the final Response and all annexes at the following address within 10 calendar days[.]'

As noted above the Clerk set a deadline of 10 days beginning on December 21, 2000. The Clerk did not receive the hard copies from respondent until January 3, 2001. On January 4, the clerk advised the parties that the Respondent was in default and that the decision in this case would be based on the complaint alone. The Respondent protested this result arguing that they interpreted the term 'send' to mean place in the mail. This is in response to Respondent's January 4, 2001 email and also comments on the Clerk's December 21, 2000 email.

"I. The clerk's December 21, 2000 email setting a 10 day period must be interpreted in the context of the ICANN rules and supplemental eResolution rules. The rules mandate that the defect must be corrected within the time set or a default is entered.

"Respondent argues that it complied with the Clerk's email and the applicable rules because the clerk did not indicated when the materials must be received by the Clerk's office. Complainant submits that the Clerk's instructions must be interpreted in the context of the ICANN rules and eResolution supplemental rules.

"Rule 5(b) of the ICANN Rules states that the response shall be submitted in hard copy and in electronic form. Rule 7(b)(ii)(2) of the eResolution supplemental rules states that the response shall be submitted in hard copy format. Supplemental Rule 7(c)(ii)(1) gives the Clerk 10 calendar days to notify the respondent that their response is deficient. Respondent's December 20, 2000 submission fell outside the rules because it did not include hard copies. The December 21, email from the Clerk was sent under the province of Rule 7(b)(ii)(2).

"Rule 7(c)(ii)(2) states: 'Respondent shall have 5 calendar days to correct such deficiencies and to notify Clerk's office of such corrections.' If the deficiencies are not corrected Supplemental rule 7(c)(ii)(3) goes on to state: 'If the Respondent fails to correct said deficiencies within that delay of 5 calendar days, the administrative proceedings shall be conducted on the basis of the complaint alone.'

"The Clerk's January 4, 2001 email was sent under the province of rule 7(c)(ii)(3). Thus, the time limit the Clerk gave respondent to correct the deficiencies must be interpreted in light of rule 7(c)(ii)(2) which gives the respondent 5 days to correct deficiencies.

"Complainant believes the time limit set in the Clerk's email of December 21, merely extended the time limit set forth in rule 7(c)(ii)(2) from 5 days to 10 days. Notwithstanding the fact that the rules do not give the Clerk authority to change the time limits in the rules , the Complainant did not and does not object to the Clerk's extension of the time because of the holidays.

"However, further delays are objectionable. The Clerk's time limit must be interpreted consistent with the rules. Supplemental Rule 7(c)(ii)(2) unambiguously states that the deficiencies must be corrected within 5 days. Substituting the 10 days allowed by the Clerk, the deficiencies must be corrected within 10 days, or by December 31. Respondent did not correct its deficiencies until January 3, 2001, three days outside of the time set. Thus, the rule 7(c)(ii)(3) default applies.

"It is axiomatic that Respondent cannot claim ignorance of the law. The rules are available and Respondent clearly reviewed at least some of them. Respondent cannot complain of hardship. Respondent was aware that it could have faxed the hard copies. They could have been faxed on December 23, 2000 when respondent's staff person was late getting to the post office or on December 27, when the hard copies were mailed. Respondent also had the ability to use a commercial overnight delivery service which it did not do.

"The rules provide no situation under which a time limit is satisfied by placing something in the mail and no basis exists to modify the rules to allow placement in the mail to satisfy a time limit. The reason is simple. eResolution deals with business entities throughout the world. To allow the service date to be accepted would introduce substantial delays into a process which is intended to be expatiated.

"Respondent's failure to file a timely response is not the result of any ambiguity in an e-mail from the clerk. Rather, it is the result of the Respondent's own failure to review the rules that apply to this case.

"III. Because Respondent has failed to correct the first deficiency identified in the Clerk's December 21 email, rule 7(c)(ii)(3) should apply.

"The Clerk's December 21, 2000 email also indicated that the respondents December 20, 2000 submission was deficient because:

'1) Please ensure yourself that the Response form meets the Rules and the Policy, in particular section 5(b)(i) of the Rules, which state that the Respondent must: "respond specifically to the statements and allegations contains [sic] in the Complaint and include any and all bases for the Respondent (domain- name holder) to retain registration and use of the disputed domain name.'''

"Complainant submits that this deficiency was properly noted because Respondent failed to raise any legitimate legal claim or legal defense, under ICANN rules or international trademark law, to the domain name timallen.com. Respondent's criticism of ICANN is non-responsive. Respondent's 'first to register' argument is wrong and essentially endorses cyber-squatting. Respondent's argument that it should enjoy ownership of the domain name timallen.com because Mr. Allen is a celebrity, whose name is freely available to newspapers and magazines, is based on a false premise. Newspapers and the like do not have exclusivity to the name Tim Allen. However, Respondent is asking that it be awarded exclusivity despite the fact that it can show no legitimate interest.

"Conclusion

"Application of the ICANN rules and eResolution supplemental rules requires that the panelist affirm the Clerk's decision to apply rule 7(b)(ii)(3) and decide this matter on the basis of the complaint alone."

2.3.2 In response to the attachment to the Provider's 18 January 2001 e-mail to the Administrative Panel, which attachment is quoted in paragraph 2.3.1 hereof, the Administrative Panel e-mailed the Provider that same day as follows: "Please inform me, by reply e-mail, of the calendar date upon which the above-captioned attachment was received by eResolution's e-mail system (as contrasted with the date upon which someone at eResolution may have personally opened the e-mail or attachment)."

2.3.3 On 19 January 2001 the Provider replied to the Administrative Panel's e-mail of 18 January 2001, quoted in paragraph 2.3.2 hereof, as follows: "The attachment in question was received last January 16, 2001 at 3:11 pm by the Clerk's Office."

Events That Occurred On Or After 22 January 2001 But Before 29 January 2001

2.4.1 On 22 January 2001 the Administrative Panel e-mailed the Provider as follows:

"On my behalf, please do two things. Firstly, today please (i) e-mail to the Respondent, and to the Complainant, the following three paragraphs of this e-mail; and (ii) e-mail me a copy of what you send them. Secondly, if and when eResolution receives from each of the Parties each of the respective communications referred to in the third of those three paragraphs, please e-mail me (i) a copy of the respective communication and (ii) a statement from eResolution of the calendar date upon which the respective communication was received by eResolution's e-mail system (as contrasted with e.g. the date upon which someone at eResolution may have personally opened the e-mail or attachment).

"The Administrative Panel in this proceeding has asked eResolution that today the Clerk's Office of eResolution do two things, which the Clerk's Office of eResolution does by this e-mail.

"One thing is to notify the Parties that although a deadline of 22 January 2001 had been fixed for the Administrative Panel to communicate its decision on the complaint to the Clerk's Office of eResolution, in view of exceptional circumstances and since the Administrative Panel considers a two week extension of that deadline necessary for the Administrative Panel to be able to fulfill its duties adequately, the Administrative Panel hereby extends that deadline to the end of calendar day 5 February 2001.

"The other thing is to notify the Parties that (i) the Respondent shall have until the end of calendar day 24 January 2001 to deliver, to the Clerk's Office of eResolution and to the Complainant, by one or more e-mail attachments, evidence of the 27 December 2000 mailing asserted in the Respondent's 4 January 2001 e-mail; and (ii) the Complainant shall have until the end of calendar day 26 January 2001 to deliver, to the Clerk's Office of eResolution and to the Respondent, by e-mail a response to the submission referred to in item 'i' of this paragraph."

2.4.2 Later on 22 January 2001 the Administrative Panel received from the Provider an e-mail indicating the Provider had complied with both parts of the first request (i.e. parts "i" and "ii") stated in the first paragraph quoted in paragraph 2.4.1 hereof and that in so communicating with the Parties the Provider had further stated the following to them by e-mail: "Read the Panel's instructions carefully and send the required information to the Clerk's Office on the appointed dates."

2.4.3 On 25 January 2001 the Administrative Panel received an e-mail from the Provider, the body of which was "Find attached information requested to the Respondent. It arrived yesterday, January 24, 2001, via fax to the Clerk's Office at 5:15 PM". (The list of documents annexed to the Response's form on the Provider's web site was amended by the Provider to indicate that on 25 January 2001 the Provider annexed the information; in accordance with notation stated in paragraph 3.0.2 hereof, that annex will be referred to herein as Annex R35.) Attached to that e-mail, in pdf format, was a two-page copy of a document with the title "AFFIDAVIT OF BETTY CLAYDON" and subtitled "CASE # AF-0516". The original of that copy was apparently signed by "Betty Claydon" and, according to the signed jurat in that copy, apparently "Sworn to" on the "24 [that number having been written in by hand] day of January 2001" before a "BARRISTER & SOLICITOR" and "Notary Public" i.e. "SUSAN M. LAMOTHE". The body of that copy includes the following:

(i) on its first page, "BETTY CLAYDON, being duly sworn, deposes and says as follows:

5 I am Office Manager for Respondent Tim Allen Club.

6 On December 27, 2000 on entering my office I noticed on my desk two (2) envelopes that were to have been put in the mail on December 23 2000. As this had obviously not happened because the Post Office was closed for the holiday season, I then took these to the Post Office and mailed them.

7 Attached [and here it appears Betty Claydon has added, or in any event initialed, the handwritten text "as Exhibit 'A'"] is a true 200% scan of the receipt issued by the Post Office for two parcels.

8 One item is for the hardcopies to eResolution regarding the Tim Allen case. One item is for the hard copies to the Complainant's Lawyer in this same case.

9 The actual items described here are being faxed and mailed today to eResolution."; and

(ii) on its second page,

1. in the top right corner, and apparently signed there by the same "Susan M. Lamothe" referred to in the preamble of this paragraph 2.4.3 hereof, the following, including hand-written passages appearing in square brackets in this decision: "This is Exhibit ['A'] referred to in the Affidavit of [Betty Claydon] Sworn before me this [24] day of [JANUARY] A.D. [2001] [Signature] A Commissioner in and for Alberta SUSAN M. LAMOTHE BARRISTER & SOLICITOR" and

2. as part of a column of text centered left-to-right, (a) at the top, "Canada Post Postal Outlet High Prairie"; (b) below that, apparently the date "2000/12/27" (i.e. 27 December 2000) and time "12:55:13"; and (c) still farther down the page, particulars of two packages as to weight ("0.59 Kg" and "0.592 Kg"), price (i.e. "Regular Parcel" with "$5.95", and "Sm Pkt Surf US" with "$6.80", plus "GST" of "$0.42" apparently on the "Regular Parcel" portion of the "SUBTL" of "$12.75") and means of payment (i.e. "Cheque" and "$13.17"); and (iv) in hand-writing "#1002"; and (v) at the foot of the page, "Receipt required for all returns."

Events That Occurred On Or After 29 January 2001 But Before 2 February 2001

2.5.1 By the afternoon of 29 January 2001 Administrative Panel had not received an e-mail from the Provider to indicate that by the end of 26 January 2001 the Provider had received a response, from the Complainant, to the fax that the Respondent had sent to the Provider on 24 January 2001.

2.5.2 In view of paragraphs 2.4.1 through 2.4.3 and 2.5.1 hereof, on the afternoon of 29 January 2001 the Administrative Panel e-mailed the Provider as follows: "Please inform me, by reply e-mail, of whether eResolution has any indications, and if so then what indications, as to each of the following: (i) whether, in addition to the Respondent's delivering the 24 January 2001 fax to eResolution, any information in or about that fax (e.g. an original, or copy, of the affidavit in that fax) was also delivered to the Complainant (and if so then what information, when, by what medium, and by whom); and (ii) whether eResolution received any response from the Complainant as to the information referred to in item 'i' of this paragraph (and if so then what response, when, by what medium, and by whom)."

2.5.3 On 30 January 2001 the Provider e-mailed the Administrative Panel as follows:

"(i)There is no evidence for the Clerk's Office that the Respondent delivered copy of the communication of January 24, 2001 to the Complainant. However on January 24, 2001, and after receiving named communication from the Respondent, the Clerk's Office sent an email message to both parties reconfirming receipt of Respondent's fax and also informing that said material will be posted on the case's secure site as an annex to the Response, as indeed was. At your request I could forward you copy of this message.

"(ii)The Clerk's Office has not received any communication from the Complainant referring to item 'i'."

2.5.4 Later on 30 January 2001, in view of the e-mail quoted in paragraph 2.5.3 hereof, the Administrative Panel e-mailed the Provider as follows:

"Firstly, please forward me a copy of the message referred to in that e-mail (i.e. the message which you stated that on January 24, 2001, after receiving the named communication from the Respondent, the Clerk's Office sent to both parties reconfirming receipt of Respondent's fax and also informing that said material will be posted on the case's secure site as an annex to the Response). Please ensure the message includes the time the message was received by each party's e-mail system, or at least the time it was sent.

"Secondly, the eResolution web site indicates that the annex referred to above was added to that web site on 25 January 2001. Please inform me of the time that it was posted."

2.5.5 Still later on 30 January 2001, in response to the e-mail quoted in paragraph 2.5.4 hereof, the Provider e-mailed the Administrative Panel that by an e-mail of "January 25, 2001 9:52 AM" the Provider had stated to the Parties, "This is to confirm receipt of Respondent's information, sent to the Clerk's Office via fax yesterday, January 24, 2001. Said information will be post it on the case secure site within this day."

2.5.6 Even still later on 30 January 2001, in response to the e-mail quoted in paragraph 2.5.5 hereof, the Administrative Panel e-mailed the Provider, asking the Provider to inform the Administrative Panel "of the time that the 25 January 2001 posting onto the web site occurred."

2.5.7 On 30 January 2001, in response to the e-mail quoted from in paragraph 2.5.6 hereof, the Provider e-mailed the Administrative Panel that the Provider's "system does not provide for a tool to determine this information, apart from the date in which the action was done" but that the Provider's "closest guess, based on the hour in which [the Provider] sent the confirmation to the parties (9:52 am) is that [the Provider] did post this annex during the morning hours of January 25, 2001".

Events That Occurred On Or After 2 February 2001 But Before 12 February 2001

2.6.1 On 2 February 2001 the Provider e-mailed the Administrative Panel that "The Complainant sent a message to the Clerk's Office regarding the receipt of the Respondent's information of January 24, 2001 and the possibility to submit further information to your attention. Please advise at your earliest convenience if you wish to receive this email communication."

2.6.2 On 2 February 2001, in response to the e-mail quoted in paragraph 2.6.1 hereof, the Administrative Panel e-mailed the Provider, asking the Provider to e-mail the Administrative Panel the "email communication" referred to in the last sentence of paragraph 2.6.1 hereof.

2.6.3 On 5 February 2001, the Provider initially sent the Administrative Panel three e-mails.

2.6.4 The first of those three paragraph-2.6.3 e-mails apparently was "Sent" by the Complainant on "Friday, February 02, 2001" at "12:18 PM" to the Provider, and copied to the Respondent, and the body of it apparently was as follows:

"In your email of January 22, 2001, you advised us that Panelist Kyle required the Respondent to submit evidence of the alleged December 27 mailing by "the end of the calendar day 24 January 2001" to the Clerk's office and the Complainant. We report that we have not received any correspondence from the Respondent. Please advise whether you have received evidence of the alleged mailing. As you know, the Panelist granted us permission to respond to such evidence by the end of the calendar day 26 January 2001. If you have received this evidence, please consider this email a formal request to submit additional information to the Panelist. Specifically, we intend to protest the Respondent's failure to provide us with evidence of the alleged December 27 mailing."

2.6.5 The second of those three paragraph-2.6.3 e-mails apparently was "Sent" by the Respondent on "Friday, February 02, 2001" at "1:18 PM" to the Provider, and copied to the Complainant, and the body of it apparently was as follows:

"It appears our small office is having a great deal of difficulty parsing the Rules and even correspondence.

"Apparently, when this was executed, it was read up to the point:

'Read the Panel's instructions carefully and send the required information to the Clerk's Office on the appointed dates.'

"I see indeed the information, consisting of an affidavit and a receipt, was to be sent to the Complainant. That will be done electronically today. In the meantime, we sincerely regret these lapses, all of which started with our interpretation of the Rules. Our interpretation is consistent with other forums.

"We would also like to point out the Complainant is taking the opportunity in correspondence over this matter to expand his case arguments and argue against our own case. In other words, he is rebutting our arguments while we have no opportunity to do the same. Both this, and the problems with timing, appear to go against the flow of natural justice which we are confident the Panel and eResolution wants to maintain."

2.6.6 The third of those three paragraph-2.6.3 e-mails apparently was "Sent" by the Respondent on "Friday, February 02, 2001" at "4:17 PM" to the Provider (but not appearing to be copied to the Complainant by the Respondent) and the body of it apparently was, in commenting on an e-mail appended thereto, as follows:

"[The Complainant's representative's] use of gross hyperbole, calculated exaggeration and preposterous claims of damage over a domain name registered in 1996, as we stated in earlier correspondence today, run counter to any inclination towards seeing natural justice concluded.

"Our experience with the WIPO forum and the submission of hard copy material is we were not in error in submitting the original Response. The one transgression, despite [the Complainant's representative's] ridiculous claims of 'numerous opportunities' and 'repeated failure' since then derived from that error and are not accurate. The ICANN rules, WIPO rules, and eResolution supplements have different statements in different places.

"[The Complainant's representative] claims he needs more time to build a reply to the receipt evidence. We suspect he really wants to attack our entire case, since he already has found time to question the validity of a duly Notarized Affidavit and an official receipt. We really don't know what else we can do that will satisfy him, other than perhaps to attempt to subpoena the original packaging from eResolution! Or deliver our first-born child to him.

"We sincerely regret the dogfight [the Complainant's representative] is attempting to start here but we feel obligated to stand up for our side."

The e-mail appended thereto apparently was sent to the Provider by the Complainant's representative, and copied to the Respondent, on the "Date" of "Fri, 02 Feb 2001" at "15:42:48 -0500" and the body of it apparently was as follows:

"We have received electronic communication from the Respondent. It indicates you were also sent a copy of the email sent to us today. Please forward this email to Panelist Kyle.

"The Respondent admits that it failed to submit copies of its evidence to us, providing no reason upon which this failure can be excused. The Complainant submits that the Respondent's evidence should be rejected for failure to follow the instructions of the Panelist. To accept the evidence would be highly prejudicial to the Complainant since the time provided by the Panelist for filing a reply to the evidence has now expired and this case is to be decided in three days.

"Furthermore, the Complainant submits that the Panelist should resolve this case on the basis of the Complaint alone. The Clerk and the Panelist in this case have afforded the Respondent numerous opportunities to present evidence in this case, opportunities provided for in the ICANN rules and opportunities not provided for in the ICANN rules. Yet, the Respondent has repeatedly failed to follow these clear rules and instructions in presenting its case. The delays corresponding to the Respondent's failure to read and follow the ICANN rules, the Clerk's instructions and the Panelist's instructions have been damaging to the Complainant.

"Should the Panelist agree to consider the evidence provided by the Respondent, the Complainant requests leave to submit a reply to the evidence. Specifically, the Complainant protests the propriety of accepting the evidence for consideration and the legitimacy of the evidence.

"Please advise us on Panelist Kyle's decisions as to acceptance of the evidence or as to leave to file additional documentation regarding the acceptance and legitimacy of the Respondent's evidence. Thank you [Provider]."

2.6.7 On 5 February 2001, after receiving the three e-mails quoted from in paragraphs 2.6.4 through 2.6.6 hereof, the Administrative Panel e-mailed the Provider as follows:

"Thank you for your three e-mails to me this morning.

"As a result, on my behalf, please do two things. Firstly, today please (i) e-mail to the Complainant, and to the Respondent, the following three paragraphs of this e-mail; and (ii) e-mail me a copy of what you send them. Secondly, if and when eResolution receives from the Complainant the communication referred to in the third of those three paragraphs, please e-mail me (i) a copy of the respective communication; and (ii) a statement from eResolution of the calendar date upon which the respective communication was received by eResolution's e-mail system (as contrasted with e.g. the date upon which someone at eResolution may have personally opened the e-mail or attachment).

"The Administrative Panel in this proceeding has asked eResolution that today the Clerk's Office of eResolution do two things, which the Clerk's Office of eResolution does by this e-mail.

"One thing is to notify the Parties that although a deadline of 5 February 2001 had been fixed for the Administrative Panel to communicate its decision on the complaint to the Clerk's Office of eResolution, in view of exceptional circumstances and since the Administrative Panel considers an extension of that deadline to 16 February 2001 to be necessary for the Administrative Panel to be able to fulfill its duties adequately, the Administrative Panel hereby extends that deadline to the end of calendar day 16 February 2001.

"The other thing is to notify the Parties that the Complainant shall have until the end of calendar day 7 February 2001 to deliver, to the Clerk's Office of eResolution and to the Complainant, by e-mail a response to the 24 January 2001 submission by the Respondent."

2.6.8 Approximately seventy minutes after the Administrative Panel sent the e- mail quoted in paragraph 2.6.7 hereof, the Administrative Panel received from the Provider an e-mail indicating the Provider had complied with both parts of the first request (i.e. parts "i" and "ii") stated in the first paragraph quoted in paragraph 2.6.7 hereof and that in so communicating with the Parties the Provider had further stated the following to them by e-mail: "Read and follow the instructions carefully."

2.6.9 Approximately twenty minutes after receiving the paragraph-2.6.8 e-mail (i.e. approximately ninety minutes after the Administrative Panel sent the paragraph-2.6.7 e-mail), the Administrative Panel e-mailed the Provider, to correct a clerical error in the paragraph-2.6.7 e-mail:

"Please immediately e-mail to the Parties the following paragraph of this e-mail.

"The Administrative Panel has noticed that in the Administrative Panel's e-mail to the Provider, of approximately noon today, the Administrative Panel had made a clerical error, which should be corrected as follows: in the second-last line of the last paragraph of the text provided by the Administrative Panel, replace the word 'Complainant' by the word 'Respondent', such that the paragraph will now read 'The other thing is to notify the Parties that the Complainant shall have until the end of calendar day 7 February 2001 to deliver, to the Clerk's Office of eResolution and to the Respondent, by e-mail a response to the 24 January 2001 submission by the Respondent.'"

2.6.10 Within ten minutes of the Administrative Panel's sending the paragraph 2.6.9 e-mail, the Administrative Panel received from the Provider an e-mail indicating the Provider had complied with the request stated in the first paragraph quoted in paragraph 2.6.9 hereof and that in so communicating with the Parties the Provider had further stated the following to them by e-mail: "Please read and follow the instructions carefully."

2.6.11 On 8 February 2001 the Provider e-mailed the Administrative Panel that (i) the Respondent, by e-mail to the Provider and copied to the Respondent, had on "Wednesday, February 07, 2001" at "4:30 PM" provided an un-"Dated" MicroSoft Word attachment (as one of three attachments apparently identical to one another except in that the other two were each in a respective different word processing format); and (ii) by the Provider, "This information had also been posted on the case secure site." (The list of documents annexed to the Complaint's form was amended by the Provider to indicate that on 8 February 2001 the Provider annexed the information; in accordance with notation stated in paragraph 3.0.1 hereof, that annex will be referred to herein as Annex C12.) That attachment was as follows:

"This is in response to the submission of evidence by the Respondent to the clerk on January 24, 2001, and to the Complainant on February 2, 2001. The deadline for this response is February 7, 2001.

"Background

"On November 30, 2000, this proceeding was commenced by the filing of a complaint by the Complainant. The Respondent failed to submit a proper response by December 30, 2000, but alleged timely mailing. On January 22, 2001, the Panelist granted leave to the Respondent to submit evidence relating to the alleged mailing date of the response. The Panelist instructed the Respondent to submit its evidence by January 24, 2001, to the Clerk and the Complainant. The Respondent submitted its evidence to the Clerk but failed to submit its evidence to the Complainant until February 2, 2001. Due to Respondent's untimely submission to the Complainant, the Panelist permitted the Complainant to respond to the evidence submitted by the Respondent by February 7, 2001.

"I. The submitted evidence should be not be considered in this case because the Respondent failed to submit its evidence in a manner conforming to the Panelist's instructions. The Respondent admittedly failed to read and follow the Panelist's instructions and such a failure is not an 'exceptional circumstance' justifying suspension of the rules by the Panelist.

"The Complainant asserts that it is improper to accept the evidence submitted by the Respondent relating to the mailing date of the response. The Panelist is granted discretion under the ICANN rules to extend fixed periods of time, time periods provided for by the Rules or by the Panel, only in exceptional cases. ICANN Rule 10(c). The ICANN rules and policy do not define what constitutes an 'exceptional' case. However, in the present matter, the basis upon which the Panelist considers whether to extend the January 24 deadline to February 2 is the admitted failure of the Respondent to read the instructions provided by the Panelist. The Complainant respectfully reminds the Panelist that the submission of evidence is an issue in this case because the Respondent failed to read and follow the ICANN rules and eResolution supplemental rules regarding the submission of the response. The Respondent, in effect, proposes that failure to read and follow instructions supports an 'exceptional' case justifying suspension of ICANN rules and eResolution rules. It is submitted that such a construction of Rule 10(c) would render fixed time periods in the remainder of the rules as merely suggestive rather than obligatory. Furthermore, such a construction of the rules is not consistent with the first sentence of ICANN rule 10(c) which states that the proceeding take place with due expedition. The term 'exceptional case' should not be given such a liberal reading if the ICANN rules and eResolution rules are to remain reliable and enforceable. Consequences must flow from the failure of a party to follow the rules developed by ICANN. In this case, the Respondent has provided no explanation that could reasonably constitute an exceptional circumstance justifying its latest failure to follow the Panelist's instructions. "The Complainant further submits, since the evidence of mailing should not be considered by the Panelist, the response should also not be considered in this case based on the Respondent's failure to file within the time period provided for in the rules.

"II. The submitted evidence should be not be considered in this case because the evidence is not reliable. The mailing receipt submitted by the Respondent is not authenticated. The purported affidavit submitted with the receipt is not signed or notarized.

"The Complainant also challenges the reliability of the evidence submitted by the Respondent. Specifically, the electronic copy of the affidavit of Betty Claydon is not signed or notarized. In addition, the copy of the postal receipt itself provides no description of the package sent or a location to which the package was sent. It is submitted that these pieces of evidence are not reliable. If the Panelist chooses to consider extrinsic evidence relating to the act of mailing by the Respondent, some standards must be applied as to the trustworthiness of the evidence.

"Conclusion

"Proper application of the ICANN rules and eResolution supplemental rules requires that the Panelist decline to accept the submission of evidence by the Respondent as untimely. Extensions of time provided by the Panelist are proper only in exceptional cases. An exceptional case does not lie where one party fails to read the rules and instructions governing the administrative proceeding. Furthermore, Respondent's response should not be accepted and this matter should be decided on the basis of the complaint alone." Events That Occurred On Or After 12 February 2001

2.7.1 On 12 February 2001 the Provider e-mailed the Administrative Panel that "The Respondent wishes to submit additional information regarding a decision criteria on a recently decided case. Please let me know if you wish to receive this information."

2.7.2 On 16 February 2001by an e-mail to Provider the Administrative Panel made a request to the Provider that

"On my behalf, please do two things today: (i) e-mail to the Complainant, and to the Respondent, the following paragraph of this e-mail and (ii) e-mail me a copy of what you send them.

"The Administrative Panel in this proceeding has asked eResolution that today the Clerk's Office of eResolution notify the Parties of three things. Firstly, although a deadline of 16 February 2001 had been fixed for the Administrative Panel to communicate its decision on the complaint to the Clerk's Office of eResolution, in view of exceptional circumstances and since the Administrative Panel considers an extension of that deadline to 19 February 2001 necessary for the Administrative Panel to be able to fulfill its duties adequately, the Administrative Panel hereby extends that deadline to the end of calendar day 19 February 2001. Secondly, that 19 February 2001 deadline shall not be extended. Thirdly, the Administrative Panel shall not receive from either Party any further information."

2.7.3 On 16 February 2001 the Provider e-mailed the Administrative Panel a copy of an e-mail, which copy indicated the Provider had complied with both parts (i.e. "i" and "ii") of the request quoted in paragraph 2.7.2 hereof.

3. Factual Background

Overview

3.0 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 et seq under that heading) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or through one or more of admission, notice, perception and inference) any of the information set out in paragraphs 3.0.1 et seq under this heading of "Factual Background".

3.0.1 In this proceeding, the factual background includes that the automated docket management system on the Provider's website includes, respectively through a series of links for the Complaint's form and a series of links for annexed documents, what appear to be (i) under the heading of "Complaint Form", the Complaint's form (bearing the time and date of 15:05:24 on 12 October 2000, i.e. "3:05:24 PM (GMT-5)" which apparently is Greenwich Mean Time minus five hours, on "12/10/2000"); and (ii) under the heading of "Complete List of Annexed Documents", a list of twelve documents annexed to the Complaint's form as eleven annexes numbered 1 through 11 and a table describing those annexes. (Herein, the notation for each of those eleven annexes includes the addition of the preface "C".) The list, and the Complaint's form, indicate that the documents were made part of the Complaint by being annexed to the Complaint's form by the Provider on 2 November 2000. The annexes appear to be the following: (i) Annex C1: a five-page copy of the filing letter (one page), and application (four pages), in U.S. Service Mark Application Serial Number 75/775,652; (ii) Annex C2: a four-page copy of a first Office Action (three pages), and Filing Receipt (one page), in U.S. Trademark Application Serial Number 75/775,652; (iii) Annex C3: a seven-page copy of the filing letter (one page), and application (six pages), in U.S. Trademark Application 76/025,593; (iv) Annex C4: a three-page copy of the first Office Action in U.S. Trademark Application Serial Number 76/025,593; (v) Annex C5: a five-page copy of the covering letter (one page), Response to the first Office Action (three pages), and Acknowledgement of Receipt of the covering letter and Response (one page), in U.S. Service Mark Application Serial Number 75/775,652; (vi) Annex C6: a one-page copy of a printout detailing Whois results for "timallen.com"; (vii) Annex C7: a one-page copy of a printout detailing Whois results for "celebrity1000.com"; (viii) Annex C8: a one-page copy of a printout from the celebrity1000.com website; (ix) Annex C9: a one-page copy of a printout detailing Whois results for "harrisonford.com"; (x) Annex C10: a one-page copy of a printout detailing Whois results for "melgibson.com"; and (xi) Annex C11: a one-page copy of a printout detailing Whois results for "johntravolta.com".

3.0.2 In this proceeding, the factual background also includes that the automated docket management system on the Provider's website includes, through either or both of a series of links for the Response's form and a series of links for annexed documents, what appear to be (i) under the heading of "Response Form", the Response's form (bearing the time and date of 18:23:29 on 20 December 2000 i.e."6:23:29 PM (GMT-5)", which apparently is Greenwich Mean Time less five hours, on "20/12/2000"); and (ii) under the heading of "Complete List of Annexed Documents", a list of thirty-four documents annexed to the Response's form as thirty-three annexes (numbered 1 through 33) and one addendum. (Herein, (i) the notation for each of those thirty-four annexes includes the preface "R" and is correspondingly in the range from R1 to R34; and (ii) except as otherwise noted herein, pagination references to any of R1 through R34 are assigned by the Administrative Panel since none of R1 through R34 expressly bears annex page numbers.) The list, and the Response's form, indicate that the documents were made part of the Response as follows: (i) R1 through R33 were annexed to the Response's form by the Respondent on 20 December 2000; and (ii) R34 was annexed by the Provider on 27 December 2000. The annexes appear to be the following: (i) Annex R1: the Respondent's Brief, of seventeen pages; (ii) Annex R2: a thirty-one page document entitled "Rough Justice - An Analysis of ICANN's Uniform Dispute Resolution Policy"; (iii) Annex R3: a twenty-seven page document entitled "Management of Internet Names and Addresses"; (iv) Annex R4: a seven-page copy of "The Unauthorized Tim Allen Web Site"; (v) Annex R5: a copy of the front cover of a Harper's Bazaar periodical; (vi) Annex R6: a copy of the front cover of a Cosmo Girl periodical; (vii) Annex R7: a copy of the front cover of a Cosmopolitan periodical; (viii) Annex R8: a copy of the front cover of an Elle periodical; (ix) Annex R9: a copy of the front cover of an Entertainment Weekly periodical; (x) Annex R10: a copy of the front cover of an FHM periodical; (xi) Annex R11: a copy of the front cover of a Hockey News periodical; (xii) Annex R12: a copy of the front cover of an In Style periodical; (xiii) Annex R13: a copy of the front cover of a Jane periodical; (xiv) Annex R14: a copy of the front cover of a Marie Claire periodical; (xv) ) Annex R15: a copy of the front cover of a McCalls periodical; (xvi) Annex R16: a copy of the front cover of a National Sports Review periodical; (xvii) Annex R17: a copy of the front cover of a Red Book periodical; (xviii) Annex R18: a copy of the front cover of a Talk periodical; (xix) Annex R19: a copy of the front cover of a Stuff periodical; (xx) Annex R20: a copy of the front cover of a Vogue periodical; (xxi) Annex R21: a copy of the front cover of a book about Danielle Steel; (xii) Annex R22: a copy of the front cover of a book about Lady Diana; (xxiii) Annex R23: a copy of the front cover of a book about Howard Stern; (xxiv) Annex R24: a copy of the front cover of a first book about Jacqueline Kennedy Onassis; (xxv) Annex R25: a copy of the front cover of a second book about Jacqueline Kennedy Onassis; (xxvi) Annex R26: a copy of the front cover of a book about Jerry Springer; (xxvii) Annex R27: a copy of the front cover of a book about Ralph Klein; (xxviii) Annex R28: a copy of a first page from an edition of Canadian Books in Print; (xxix) Annex R29: a copy of a second page from an edition of Canadian Books in Print; (xxx) Annex R30: a copy of a third page from an edition of Canadian Books in Print; (xxxi) Annex R31: a copy of a fourth page from an edition of Canadian Books in Print; (xxxii) Annex R32: a copy of a first page of a two-page periodical article entitled "mine eyes deceive me"; (xxxiii) Annex R33: a copy of a second page of that two-page periodical article entitled "mine eyes deceive me" and (xxxiv) Annex R34: the Respondent's seventeen-page Addendum to Annex R1.

3.0.3 In this proceeding the factual background further includes that the Complaint's form includes: (i) in section 1(a) that the "Number of Panelists" is "1-member panel"; (ii) in section 2(c) as the "Complainant's Communication Preferences", that "Complainant's preferred means of communications to complainant in the administrative proceeding: Email + eResolution secure site"; and (iii) in section 7 that "Complainant requests that the present Complaint be submitted for decision in accordance with the ICANN's Rules and Policy and eResolution's Supplemental Rules."

3.0.4 In this proceeding the factual background still further includes that the Response's form includes: (i) in section 1(a) that the "Number of Panelists" is "1-member panel"; and (ii) in section 2(c) as the "Respondent's Communication Preferences", the text "Email + eResolution secure site".

The Complaint's Annexes

3.1.1 In Annex C1 the filing letter (annex page 1 of 5) is expressly dated in typewriting as "August 13, 1999" and the application itself (annex pages 2 through 5) is expressly "Dated" in handwriting as "3/30/99" (annex page 4 of 5), apparently being 30 March 1999. The filing letter includes information consistent with, and found in, the application itself. The application itself expressly includes that it was six things. Firstly, for the mark "Tim Allen" (annex pages 2 of 5, and 5 of 5). Secondly, in International Class Number "042" (annex pages 2 of 5, and 5 of 5). Thirdly, by "Timothy Allen Dick" (annex pages 2 of 5, and 5 of 5) of a particular municipal business address in "Beverly Hills, Michigan" (annex pages 2 of 5, and 5 of 5). Fourthly, on the bases (i) of "a bona fide intent under Section 1(b) of the [United States Trademark] Act to use the mark shown in the accompanying drawing in commerce for the following services: INDUSTRIAL DESIGN COMPRISING INTERIOR WORK SPACE DESIGN; PRODUCT DESIGN AND COMMERCIAL ART DESIGN AND GRAPHIC ART DESIGN FOR OTHERS" (annex pages 2 of 5, and, as to only the list of services, 5 of 5); and (ii) that "Applicant intends that the manner or mode of use of the mark on or in connection with the services will be by displaying the same on material and brochures and on the design work performed by the applicant" (annex page 2 of 5). Fifthly, (i) made after the applicant was thereby "warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful statements may jeopardize the validity of the application or any resulting registration"; and (ii) a declaration that "he is authorized to execute this application, he believes he has a bona fide intent to use the mark sought to be registered on the services, he believes he is entitled to use such mark in commerce; he believes himself to be the owner of the mark sought to be registered; to the best of his knowledge and belief no other person, firm, corporation or association has the right to use the above-identified mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the services of such other person, to cause confusion, or to cause mistake, or to deceive; and all statements made of his own knowledge are true and all statements made on information and belief are believed to be true" (annex pages 3 of 5, and 4 of 5). Sixthly, signed by "Timothy Alan Dick" (annex page 4 of 5). Despite what is stated in the filing letter and application, the annex did not include a drawing which showed the mark and was to have accompanied the rest of the application, except in the sense of the above-described type-written version of the mark.

3.1.2 In Annex C2 the Office Action (annex pages 1 through 3, of 4) expressly has the "ACTION NO." of "01" (annex page 1 of 4) and the "MAILING DATE" of "12/06/99" (annex page 1 of 4), apparently being 6 December 1999, and expressly includes three other main attributes. The first main attribute is that, contrary to Annex C1, the mark appears to be "TIM ALLEN" in "(STYLIZED)" form (annex page 1 of 4) rather than "Tim Allen". The second main attribute is that "[t]he assigned examining attorney has reviewed the referenced application and determined" (annex page 1 of 4) five things. Firstly, after having "searched the Office records" the assigned examining attorney "found no similar registered or pending mark which would bar registration under [United States] Trademark Act Section 2(d), 15 U.S.C. Section 1052(d). TMEP section 1105.01" (annex page 1 of 4). Secondly, the following three informalities, however, must be addressed. The first informality is that "[t]he applicant may adopt the following if accurate: TIM ALLEN is the professional stage name of a living individual whose consent is of record" (annex page 2 of 4) since "If the name shown in the mark identifies a particular living individual , the applicant must submit a written consent from that individual, authorizing the applicant to register the name. Consent is required for registration of a pseudonym, stage name or nickname if such name identifies a specific living individual. If the name does not identify a living individual, the applicant should state so for the record. Trademark Act Section 2(c), 15 U.S.C. Section 1052(c); TMEP sections 813 and 1206" (annex page 1 of 4). The second informality is that "[t]he applicant must submit a new drawing" (annex page 2 of 4) since "[t]he drawing is not acceptable because the mark is not typed entirely in capital letters 37 C.F.R. Section 2.52(a)(1); TMEP section 807.08" (annex page 2 of 4). The third informality is that "[t]he applicant may adopt the following, if accurate: Class 42: Industrial design services, namely, interior work space design for others; Design, testing and development of new products for others; Commercial art and graphic art design for others" (annex page 3 of 4) since "[t]he wording 'Product Design' in the identification of services is unacceptable as indefinite in that it fails to indicate whether or not the services include development and testing of the new products to be designed" (annex page 3 of 4). The third main attribute of Annex C2 is that by it "A PROPER RESPONSE TO THIS OFFICE ACTION MUST BE RECEIVED WITHIN 6 MONTHS FROM THE DATE OF THIS ACTION IN ORDER TO AVOID ABANDONMENT" (annex page 1 of 4); in view of the first sentence of this paragraph, the due date for that response was 6 June 2000. A further aspect of Annex C2 is that it includes, as page 4 of 4, what appears to be a "FILING RECEIPT FOR TRADEMARK APPLICATION" which includes information consistent with, or found in, either or both of Annex C1 and the rest of Annex C2.

3.1.3 In Annex C3 the filing letter (annex page 1 of 7) is expressly dated in typewriting as "April 13, 2000" and the application itself (annex pages 2 through 7) is expressly "Dated" in handwriting as "3/30/99" (annex page 6 of 7), apparently being 30 March 1999. Except for the filing letter statement that the mark is in "(Stylized)" form, the filing letter includes information consistent with, and found in, the application itself. The application itself expressly includes that it was six things. Firstly, for the mark "Tim Allen" (annex pages 2 of 7, and 7 of 7). Secondly, in International Class Numbers "7, 8, 18, 25, 41" (annex pages 2 of 7, and 7 of 7). Thirdly, by "Timothy Allen Dick" (annex pages 2 of 7, and 7 of 7) of a particular municipal business address in "Beverly Hills, Michigan" (annex pages 2 of 7, and 7 of 7). Fourthly, on three bases (corresponding herein to "i", "ii" and "iii") in respect of each of the five international classes (corresponding herein to "a", "b", "c", "d" and "e"), that (a(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: IN CLASS 007: HAND-HELD ELECTRIC TOOLS; BITS FOR HAND-HELD ELECTIRIC TOOLS; TOOL KITS COMPRISING HAND-HELD ELECTRIC TOOLS AND BITS THEREFOR; BAGS FOR HAND-HELD ELECTRIC TOOLS AND TOOL KITS; SOLD WITH THE TOOLS AND TOOL KITS" (annex pages 2 of 7, and, as to the first item of the list of goods and services, 7 of 7), (a(ii)) "The mark is used with the goods in Class 007 by imprinting the same on the goods and on labels attached to the goods and on packaging within which the goods are sold, and three (3) specimens showing the mark as actually used are presented herewith" (annex page 2 of 7) and (a(iii)) "The mark was first used on the goods in Class 007 in August 1996; was first used in interstate commerce in August 1996; and is now in use in such commerce" (annex pages 2 of 7, and, as to the first-use dates, 7 of 7); (b(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: … IN CLASS 008: HAND TOOLS; TOOL KITS COMPRISING HAND TOOLS; BAGS FOR HAND TOOLS AND TOOL KITS, SOLD WITH THE TOOLS AND TOOL KITS; TOOL APRONS, NAMELY WAIST APRONS AND BIB APRONS; TOOL HOLDERS" (annex pages 2 of 7, and, as to the first item of the list of goods and services, 7 of 7), (b(ii)) "The mark is used with the goods in Class 008 by imprinting the same on the goods and on labels attached to the goods and on packaging within which the goods are sold, and three (3) specimens showing the mark as actually used are presented herewith" (annex page 3 of 7) and (b(iii)) "The mark was first used on the goods in Class 008 in September 1995; was first used in interstate commerce in September 1995; and is now in use in such commerce" (annex pages 3 of 7, and, as to the first-use dates, 7 of 7); (c(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: … IN CLASS 018: TOOLS AND UTILITY BAGS, SOLD EMPTY" (annex pages 3 of 7, and, as to the first item of the list of goods and services, 7 of 7), (c(ii)) "The mark is used with the goods in Class 018 by imprinting the same on the goods and on labels attached to the goods and on packaging within which the goods are sold, and three (3) specimens showing the mark as actually used are presented herewith" (annex page 3 of 7) and (c(iii)) "The mark was first used on the goods in Class 018 in September 1996; was first used in interstate commerce in September 1996; and is now in use in such commerce" (annex pages 3 of 7, and, as to the first-use dates, 7 of 7); (d(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: … IN CLASS 025: CLOTHING, NAMELY BASEBALL CAPS" (annex page 3 of 7), (d(ii)) "The mark is used with the goods in Class 025 by imprinting the same on the goods and on labels attached to the goods and on packaging within which the goods are sold, and three (3) specimens showing the mark as actually used are presented herewith" (annex page 4 of 7) and (d(iii)) "The mark was first used on the goods in Class 025 in August 1996; was first used in interstate commerce in August 1996; and is now in use in such commerce" (annex pages 4 of 7, and, as to the first-use dates, 7 of 7); and (e(i)) the applicant "has adopted and is using the mark in commerce as shown in the accompanying drawing for the following goods and services: … IN CLASS 041: ENTERTAINMENT SERVICES COMPRISING: PERSONAL APPEARANCES BY A CELEBRITY; APPEARANCES IN A CONTINUING COMEDY SHOW OVER TELEVISION, SATELLITE, AUDIO AND VIDEO MEDIA, APPEARANCES IN LIVE SHOW CONCERTS AND AUTOMOBILE RACES INCLUDING DRIVING RACE CARS AND SPONSORING RACE CARS" (annex pages 4 of 7, and, as to the first item of the list of goods and services, 7 of 7), (e(ii)) "The mark is used with the services in Class 41 by imprinting the same on brochures advertising the services, on television, movies and races in which the applicant appears, and three (3) specimens showing the mark as actually used are presented herewith" (annex page 4 of 7) and (e(iii)) "The mark was first used on the goods in Class 41 in 1983; was first used in interstate commerce in 1983; and is now in use in such commerce" (annex pages 4 of 7, and, as to the first-use dates, 7 of 7). Fifthly, a declaration by the applicant that "he is authorized to execute this application; he is the owner of the mark sought to be registered; he believes to the best of his knowledge that no other person, firm, corporation or association has the right to use said mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when applied to the goods of another person, to cause confusion, or to cause mistake, or to deceive; all statements made herein of his own knowledge are true and all statements made on information and belief are believed to be true; and these statements were made with the knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under section 1001 of Title 18 of the United States Code and such willful false statements may jeopardize the validity of the application or document or any registration resulting therefrom" (annex pages 5 of 7, and 6 of 7). Sixthly, signed by "Timothy Alan Dick" (annex page 6 of 7). Despite what is stated in the filing letter and application, the annex included neither a drawing which showed the mark and was to have accompanied the rest of the application (except in the sense of the above-described type-written version of the mark) nor specimens showing the mark as actually used and which were to have been presented therewith.

3.1.4 In Annex C4 the Office Action expressly has the "ACTION NO." of "01" (annex page 1 of 3) and the "MAILING DATE" of "10/12/00" (annex page 1 of 3), apparently being 12 October 2000. It expressly includes three other main attributes. The first main attribute is that, contrary to Annex C3, the mark appears to be "TIM ALLEN" rather than "Tim Allen", and contrary to the filing letter in Annex C3 the mark appears to not be in "(Stylized)" form (annex page 1 of 3). The second main attribute is that "[t]he assigned examining attorney has reviewed the referenced application and determined" (annex page 1 of 3) seven things. Firstly, after having "searched the Office records" the assigned examining attorney "found no similar registered or pending mark which would bar registration under [United States] Trademark Act Section 2(d), 15 U.S.C. Section 1052(d). TMEP section 1105.01" (annex page 1 of 3). Secondly, "The following [five] informalities, however, must be addressed" (annex page 1 of 3). The first informality is that "the applicant must submit a statement that the mark is still in use, verified by an affidavit or declaration under 37 C.F.R. Section 2.20. TMEP section 803.04" (an example of a properly worded declaration, and instructions for using it, apparently being provided by the assigned examining attorney on annex page 2 of 3) since "[t]he applicant did not file this application within a reasonable time after the application was signed. The signature date of the application is March 30, 1999 and the filing date of the application is April 13, 2000. The Office considers six months between execution and filing as reasonable for all applicants and all papers" (annex page 1 of 3). The second informality is that "[t]he applicant must make the following implied consent statement for the record: TIM ALLEN is the professional stage name of a living individual whose consent is of record" (annex page 2 of 3). The third informality is that "[t]he identification of goods as to International Classes 007, 008 and 018 is unacceptable as indefinite"; that statement, and an example of identifications for the applicant to adopt, if accurate, were provided by the assigned examining attorney on annex pages 2 of 3, and 3 of 3. The fourth informality is that "[t]he recitation of services as to International Class 41 is unacceptable as indefinite"; that statement and an example of a recitation for the applicant to adopt, if accurate, were provided by the assigned examining attorney on annex page 3 of 3. The fifth informality is that "[t]he applicant must submit a specimen and must submit the following statement: The specimen was in use in commerce a least as early as the filing date of the application. This statement must be verified with an affidavit or a declaration under 37 C.F.R. Section 2.20 37 C.F.R. Section 2.71(d)(1)" since "[a]n application based on use of the mark in commerce under Trademark Act Section 1(a), 15 U.S.C. Section 1051(a), must include a specimen showing use of the mark in commerce on or in connection with each identified class of goods or services. The application does not contain a specimen for the services identified in International Class 41" (annex page 3 of 3). The third main attribute of Annex C4 is that by it "A PROPER RESPONSE TO THIS OFFICE ACTION MUST BE RECEIVED WITHIN 6 MONTHS FROM THE DATE OF THIS ACTION IN ORDER TO AVOID ABANDONMENT" (annex page 1 of 3); in view of the first sentence of this paragraph, the due date for that response is 12 April 2001.

3.1.5 In Annex C5 the covering letter (annex page 1 of 5, and titled "CERTIFICATE OF MAILING AND TRANSMITTAL LETTER") expressly has the date of being "deposited with the United States Postal Service as First Class Mail" of "on May 16, 2000" and the Response (annex pages 2 through 4, of 5) has the "Date" of "May 12, 2000" (annex page 3 of 5). The covering letter includes information consistent with, and found in, the Response. The Response expressly includes (at annex page 3 of 5) that the applicant adopts the respective means, set out in paragraph 3.1.2 hereof, which the assigned examining attorney had suggested for correcting the three informalities set out in paragraph 3.1.2 hereof; through annex pages 2 of 5, and 4 of 5, those means appear to have been effected. Annex C5 also includes, as annex page 5 of 5, what appears to be an acknowledgment, by the United States Patent and Trademark Office, of receipt of the covering letter and Response i.e. that "THE U.S. PATENT OFFICE 'RECEIVED' [STAMP?] [ACKN?]OWLEDGES RECEIPT OF: Paper: Cert. of Mailing and Response w[ith] new drawing" in an application indicated by the rest of Annex C5, and by the Office Action in Annex C2, as having the same "Applicant" name, "Serial No.", "Date Mailed" and "Due" date.

3.1.6 Annex C6 expressly includes that (i) the information therein "is provided by Network Solutions for information purposes, and to assist persons in obtaining information about or related to a domain name registration record. Network Solutions does not guarantee its accuracy."; (ii) the "Administrative Contact, Billing Contact" information is "Burgar, Jeff" of the organization "Internet North" at a particular post box and municipal address (both in "High Prairie" , "AB", "CA" i.e. High Prairie, Alberta Canada), as a well as at a particular telephone number and fax number and e-mail address; (iii) the "Technical Contact, Zone Contact" information is the same as item "ii" of this paragraph except that rather than "Burgar, Jeff" the name is "Lumsden, Justin", the e-mail address is a particular different one (though still at "INETNORTH.NET"), there is no municipal address and the telephone number is a particular different one; (iv) the "Registrant" information is the same as item "ii" of this paragraph except that rather than "Burgar, Jeff" the name is "Tim Allen Club", and that there is no reference to Internet North or to a telephone number or fax number or e-mail address; and (v) "Record last updated on 04-Apr-2000", "Record expires on 07-Nov-2000", "Record created on 6-Nov-1996" and "Database last updated on 13-Sep-2000 05:55:52 EDT".

3.1.7 Annex C7 expressly includes the same information (down to and including the particulars) set out in Paragraph 3.1.6 hereof except instead that (i) the "Registrant" name is "Celebrity Club"; (ii) the "Record expires on" date is "01-Nov-2000"; (iii) the "Record created on" date is "31-Oct-1997"; and (iv) the "Database last updated on" date and time are "28-Sep-2000 08:00:56 EDT".

3.1.8 Annex C8 has three main parts: (i) at the top, a banner; (ii) immediately below the banner, a date line; and (iii) immediately below the date line, three columns of texts and depictions. The banner has three parts: (i) a right side, wherein there is a depiction (apparently a photograph) of an automobile; (ii) a left side, the text of which is "PERFORMANCE"; and (iii) at approximately the mid-point of the banner, pointing downward, what seems to be a depiction of a pennant-like object which is swallow-tailed at the hoist-end (i.e. upper end) and tapered to a point at the fly-end (i.e. lower end) and which includes near the hoist-end a cross consisting of two mutually perpendicular members the shorter of which is coincident with the longitudinal axis of the pennant-like object. The date line includes the text "Week of February 15, 1999". The three columns include, as its center column, "Feature Celebrities of the Week", followed below that by "Kate Winslet" followed by a photograph depicting Kate Winslet, then below that "Tim Allen" followed by a photograph of Tim Allen, and then, below that, "Click on our Celebrity of the Week and see all previous Celebrity Sites of the Week Too!"

3.1.9 Annex C9 expressly includes the same information (down to and including the particulars) set out in Paragraph 3.1.6 hereof except instead that (i) the "Registrant" name is "Harrison Ford Club"; and (ii) the "Database last updated on" date and time are "28-Sep-2000 07:59:47 EDT".

3.1.10 Annex C10 expressly includes the same information (down to and including the particulars) set out in Paragraph 3.1.6 hereof except instead that (i) the "Registrant" name is "Mel Gibson Club"; (ii) the "Record last updated on" date is "28-Jun-2000"; and (iii) the "Database last updated on" date and time are "28-Sep-2000 07:59:47 EDT".

3.1.11 Annex C11 expressly includes the same information (down to and including the particulars) set out in Paragraph 3.1.6 hereof except instead that (i) the "Registrant" name is "John Travolta Club"; (ii) the "Record last updated on" date is "30-Jun-2000"; and (iii) the "Database last updated on" date and time are "28-Sep-2000 08:00:58 EDT".

The Response's Annexes

3.2.1 Annex R1 appears to expressly include two types of information, often intricately woven or blended within or between one another: (i) factual background of, or which can be contended to be of, this proceeding; and (ii) contentions by the Respondent. Consequently, except for paragraph 3.2.34 hereof, the Administrative Panel considers it appropriate to defer further statements about Annex R1 to the "Parties' Contentions" portion of this decision (i.e. paragraphs 4.0 et seq under that heading), and so defers it.

3.2.2 Annex R2 appears to expressly include, often intricately woven or blended within or between one another, two types of information, either or both of which the Respondent appears to expressly or implicitly adopt in either or both of Annex R1 and Annex R34: (i) factual background which can be contended to be of this proceeding; and (ii) contentions by the author of Annex R2. Consequently, the Administrative Panel considers it appropriate to defer further statements about Annex R2 to the "Parties' Contentions" portion of this decision (i.e. paragraphs 4.0 et seq under that heading), and so defers it.

3.2.3 Annex R3 appears to expressly include, often intricately woven or blended within or between one another, two types of information, either or both of which the Respondent appears to expressly or implicitly adopt in either or both of Annex R1 and Annex R34: (i) factual background which can be contended to be of this proceeding; and (ii) contentions by the author of Annex R3. Consequently, the Administrative Panel considers it appropriate to defer further statements about Annex R3 to the "Parties' Contentions" portion of this decision (i.e. paragraphs 4.0 et seq under that heading), and so defers it.

3.2.4.1 Annex R4 expressly includes as its first page, which appears to be a copy of the "home" page of the web site, (i) at the top, the banner header "The UNAUTHORIZED TIM ALLEN Web Site", in which (a) "The", "Web" and "Site" are in one font-size and font-style (perhaps Geneva), (b) "TIM ALLEN" is in a larger font-size (apparently the largest font-size on the page and on the site) and in another font-style (perhaps a sort of italicized-and-streaked Geneva), on a line between "The" and "Web Site" and (c) "UNAUTHORIZED" appears diagonally between "The" and "TIM ALLEN" in a stencil-like font-style at approximately the same font-size as "TIM ALLEN"; (ii) immediately below what is described by item "i" of this paragraph, in the smallest font-size on the page and on the web site, "Information on this web site is for information purposes only. Nothing on this site is to be construed as an endorsement by any celebrity or personality, unless explicitly identified, for this site or for any information here. This site is in no way affiliated with Tim Allen. This is a fan appreciation site, the Tim Allen Club."; (iii) immediately below what is described by item "ii" of this paragraph, "Tim Allen[,] Actor" and a photograph depicting the Complainant; (iv) immediately below what is described by item "iii" of this paragraph, various brief biographical-sort of texts; and (v) to the left of what is described by items "iii" and "iv" of this paragraph, links to the pages of the web site i.e. "home", "biography", "message board", "opinion poll" and "links".

3.2.4.2 Annex R4 expressly includes as its second page, which appears to be a copy of the "biography" page of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, the heading "biography"; (iii) immediately below what is described by item "ii" of this paragraph, various biographical-sort of texts more extensive than those referred to in item "iv" of paragraph 3.2.4.1; and (iv) to the left of what is described by items "ii" and "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.4.3 Annex R4 expressly includes as its third page, which appears to be a copy of the remainder of the web site's "biography" page described in paragraph 3.2.4.2 hereof, various biographical-sort of texts more extensive than those referred to in item "iv" of paragraph 3.2.4.1 hereof.

3.2.4.4 Annex R4 expressly includes as its fourth page, which appears to be a copy of the first of two "message board" pages of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, the heading "message board"; (iii) immediately below what is described by item "ii" of this paragraph, links top and bottom labeled "Post a Message" and between them "Welcome to the Unauthorized Tim Allen message board. Tell us what your favorite Tim Allen acting role is and why it is your favorite. Webmaster 12/19/00 9:29:50 AM - 204.50.219.1 - message #1" apparently indicating that the annex is a copy of the information that was on the web site, or at least was on that page of the web site, as of that time on or after 19 December 2000; and (iv) to the left of what is described by items "ii" and "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.4.5 Annex R4 expressly includes as its fifth page, which appears to be a copy of the second of two "message board" pages of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, the heading "message board"; (iii) immediately below what is described by item "ii" of this paragraph, "Before you post:" and below that, apparently in a boldface version of the same smallest font-size as the text described in item "ii" of paragraph 3.2.4.1 hereof, "Your IP address is recorded and you can be traced. Posts containing defamatory matter or profane comments may be edited or deleted at the discretion of the webmaster. Do not post advertising. Feel free to post messages to Mr. Allen, but we make absolutely no representation he ever visits this message board. Please keep in mind this web site is not affiliated, endorsed, or associated in any way with Tim Allen.", followed by messaging fields and a "Submit" button; and (iv) to the left of what is described by items "ii" and "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.4.6 Annex R4 expressly includes as its sixth page, which appears to be a copy of the "opinion poll" page of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, the heading "favorite movie poll"; (iii) immediately below what is described by item "ii" of this paragraph, "You may select a maximum of 5 entries and a minimum of 1", followed by polling fields regarding movies in which Tim Allen has apparently performed and a "Vote!" button; and (iv) to the left of what is described by items "ii" and "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.4.7 Annex R4 expressly includes as its seventh page, which appears to be a copy of the "links" page of the web site, (i) at the top, the banner header described in item "i" of paragraph 3.2.4.1 hereof; (ii) immediately below what is described by item "i" of this paragraph, in the above-mentioned smallest font-size on the page and on the web site, "Information on this web site is for information purposes only. Nothing on this site is to be construed as an endorsement by any celebrity or personality, unless explicitly identified, for this site or for any information here. We are in no way affiliated with the web sites linked to from this site, nor do we guarantee the accuracy of the information contained on those sites."; (iii) immediately below what is described by item "ii" of this paragraph, the heading "links" and, below that heading, links apparently to "Home Improvement Website", "ABC.com - Tim Allen", "Home Improvement Cyberfans: Tim Allen", "Mr. Showbiz: Tim Allen" and "DJ's Everything Page"; and (iv) to the left of what is described by item "iii" of this paragraph, the links described in item "v" of paragraph 3.2.4.1 hereof.

3.2.5 Annex R5 expressly includes (i) near the bottom right corner, the issue date of "NOVEMBER", in very small font-size; (ii) below the periodical name, "UMA THURMAN", exceeded in annex font-size only by the periodical name and by (near the bottom) "WHITE HOT WINTER", Uma Thurman's name then being followed by "ONE COOL CUSTOMER" in the same (though unbolded) font-style as her name but at approximately half the font-size of her name; and (iii) occupying a substantial portion of the annex, a photograph depicting Uma Thurman.

3.2.6 Annex R6 expressly includes (i) near the bottom left corner, the issue date of "OCTOBER 2000", in very small font-size; (ii) near the top right corner, "leslie bibb", exceeded in annex font-size only by the periodical name and by "FREE MTV" immediately below the periodical's name, Leslie Bibb's name then being followed by "On Surviving a Heinous High School Rumor" in the same font-style as her name but at approximately one-half to one-third the font-size of her name; (iii) occupying a substantial portion of the annex, a photograph depicting Leslie Bibb; (iv) to the left of that photograph, in substantially smaller font-size than the text quoted in item "ii" of this paragraph, and accompanying substantially smaller and apparently corresponding photographs, "Enrique Iglesias", "Blink-182" and "Carson Daly".

3.2.7 Annex R7 expressly includes (i) near the top right corner, the issue date of "NOVEMBER 2000", in very small font size; (ii) below the issue date, "Alyssa Milano", in substantially larger font-size and followed by "How She Bounced Back from Love Trouble" in a different font-style and smaller font-size than her name; and (iii) occupying a substantial portion of the annex, a photograph depicting Alyssa Milano.

3.2.8 Annex R8 expressly includes (i) near the bottom right corner, the issue date of "DECEMBER 2000", in very small font-size; (ii) below the periodical name, "SHARON STONE" as part of the text "SHARON STONE'S WAR WITH HOLLYWOOD", in which "WAR WITH HOLLYWOOD" is in the same font-style as her name but at approximately half the font-size of here name; and (iii) occupying a substantial portion of the annex, a photograph depicting Sharon Stone.

3.2.9 Annex R9 expressly includes (i) near the bottom right corner, the issue date of "FALL 2000" and apparently the issue number of "#565", both in very small font-size; (ii) to the left of the issue date, "BARRYMORE", as part of the text "HOW TO BREAK INTO SHOWBIZ (…EVEN IF YOUR NAME ISN'T BARRYMORE)"; (iii) occupying a substantial portion of the annex, a photograph depicting Drew Barrymore; and (iv) above all of that, in substantially smaller font-size than the text quoted in item "ii" of this paragraph, substantially smaller photographs with the corresponding texts "Sandra Bullock", "Jim Carey", "Angelina Jolie" and "Chris Rock".

3.2.10 Annex R10 expressly includes (i) near the top left corner, the issue date of "January/February 2001", in very small font-size; (ii) below the issue date, "24-KARAT GOLD! ALYSSA MILANO MADE FROM THE STUFF THAT DRIVES MEN CRAZY", in which the font-size of what precedes Alyssa Milano's name is larger than the font-size of her name, and the font-size of what follows her name is smaller than the font-size of her name; (iii) occupying a substantial portion of the annex a photograph depicting Alyssa Milano; and (iv) farther down and to the right, in the a font-size on the order of the issue date font-size, "Matt LeBlanc".

3.2.11 Annex R11 expressly includes (i) near the top left corner, the issue date of "r 15, 2000" in small font-size; (ii) in the top right corner, "Peter [illegible]", in slightly larger font-size superimposed on a photograph depicting an individual; (iii) occupying a substantial portion of the annex, a photograph depicting Eric Lyndros; and (iv) superimposed on that photograph, "Eric Lyndros", as part of "TORONTO MAKE BE-LEAF Will Eric Lyndros' dream come true?".

3.2.12 Annex R12 expressly includes (i) near the bottom left corner, the issue date of "DECEMBER 2000", in very small font-size; (ii) in the top left corner immediately below the periodical name, "Sandra Bullock"; and (iii) occupying a substantial portion of the annex, a photograph depicting Sandra Bullock.

3.2.13 Annex R13 expressly includes (i) near the bottom left corner, the issue date of "DECEMBER 2000", in very small font-size; (ii) near the bottom right corner, "Renee Zellweger", exceeded in annex font-size only by the periodical name and followed by, in the same font-style but font-sizes approximately one-third to one-quarter of her name's font-size, "'I think I look curvaceous and hot.' We do, too."; (iii) occupying a substantial portion of the annex, a photograph depicting Renee Zellweger; and (iv) to the left of, and in substantially smaller font-size than the text quoted in item "ii" of this paragraph, "Chris O'Donnell", "Wu-Tang Clan" and "Omar Epps".

3.2.14 Annex R14 expressly includes (i) near the top right corner the issue date of "JANUARY 2001", in very small font-size; (ii) below the issue date, "Uma Thurman", as part of "Join Uma Thurman and others in our Peace on Earth campaign" (in which her name and the words "Peace on Earth" are in bold); and (iii) occupying a substantial portion of the annex, a photograph depicting Uma Thurman.

3.2.15 Annex R15 expressly includes (i) near the bottom right corner the issue date of "December 2000", in very small font-size; (ii) near the top left corner, "HALEY JOEL OSMENT Cutest Leading Man" below a photograph depicting Haley Joel Osment; (iii) in the middle, and occupying a substantial portion of the annex, a photograph of Kathy Lee; (iv) slightly to the right of the middle, "Kathy Lee", as part of " EXCLUSIVE Meet the real Kathie Lee Don't you dare call her perky. Why leaving Regis has given her the guts to be her true self."

3.2.16 Annex R16 expressly includes (i) near the top left corner the issue date of "Sports Preview 2000", in moderate font-size; (ii) farther down on the left and occupying a substantial portion of the annex a photograph depicting Tiger Woods; (iii) near the middle "Athlete of the Year TIGER WOODS; (iv) near the top right corner a substantially smaller photograph depicting Vince Carter; and (v) along the right-hand side of the annex from near the middle to near the bottom, in substantially smaller font-size than the text quoted in item "iii" of this paragraph, "Vince Carter's Jams", "Kurt Warner's Rams", "Bobby Knight Falls", "Ken Griffey Jr. Bawls", "Marty McSorley's Slash" and "Mike Tyson Talks Trash".

3.2.17 Annex R17 expressly includes (i) near the bottom right corner the issue date of "December 2000", in very small font-size; (ii) near the top right corner, "HELEN HUNT" followed by, in the same font-style but a quarter the font-size, "EXCLUSIVE The Oscar-winning actress (she could be up for another!) on her 4 hot new movies, the Hollywood hunk she enjoyed kissing most, and the one thing she begged Mel Gibson not to do"; and (iii) occupying a substantial portion of the annex, a photograph of Helen Hunt.

3.2.18 Annex R18 expressly includes (i) near the top left corner the issue date of "DECEMBER 2000/JANAURY 2001", in very small font-size; (ii) near the top right corner, in only slightly larger font-size, "CLINTON" as part of "PRESIDENT CLINTON'S EXIT INTERVIEW", with a photograph depicting then U.S. President Bill Clinton; (iii) in the middle, occupying a substantial portion of the annex, a photograph depicting Matt Damon; (iv) near the bottom, "MATT DAMON", exceeded in annex font-size only by the periodical name, and followed by "BY CHRIS CONNELLY" in relatively small font-size and then in font-size comparable to Matt Damon's name "'I literally have nowhere to sleep.'"; and (v) along the left-hand side of the annex from near the top to near the bottom, in substantially smaller font-size than the text quoted in item "iv" of this paragraph, "THE NEW SOCIAL WARS BY MICHAEL GROSS", "WHAT MAKES G.E.'S JACK WELCH GREAT BY HOLLY PETERSON", "DARYL HANNAH'S NAKED TRUTH BY HOLLY MILLEA", "BING CROSBY IS HIP FROM GARRY GIDDINS NEW BOOK", "BOY CRAZY! BIRTH OF A FAD BY MIMI SWARTZ" and "DANIELLE STEEL'S PIG'S BUTLER BY THORNHALLUR VILHJALMSSON"- the words "BY" or "FROM", and the names immediately after them, being in the same font-style, but approximately half the font-size, as the words immediately before them.

3.2.19 Annex R19 expressly includes (i) near the top left corner the issue date of "DECEMBER 2000", in very small font-size; (ii) below the issue date, "Exclusive Photo Shoot" followed by "Tori Spelling" as part of "9021 OH! Tori Spelling Unzipped", exceeded in annex font-size only by the periodical name; (iii) in the middle, occupying a substantial portion of the annex, a photograph depicting Tori Spelling; and (iv) to the right of that photograph, in substantially smaller font size than the text quoted in item "ii" of this paragraph, "KATIE HOLMES", "PUNKY BREWSTER" and "BEASTIE BOYS".

3.2.20 Annex R20 expressly includes (i) near the top left corner, "NOV", in very small font-size and apparently as an abbreviation for the issue month of November; (ii) in the center of the middle a photograph depicting four individuals, who seem to be models and none of whom seem to be named in the annex, below which depiction is "who is the model of the year?"; and (iii) on the flanks of the middle, in the same font-style, but same or smaller font-size, as the text quoted in item "ii" of this paragraph, "HELMUT NEWTON'S Lifetime of Style & Desire", "Ian Schrager's Most Affordable Housing'" and "How Not to Make Espresso By Jeffrey Steingarten".

3.2.21 Annex R21 expressly includes (i) from near the top (a) occupying a substantial portion of the annex, the title "THE LIVES OF DANIELLE STEEL" and (b) in much smaller font-size but similar font-style, the subtitle "The Unauthorized Biography"; and (ii) near the bottom, in mid-range font-size and substantially similar font-style, the by line "VICKIE L. BANE & LORENZO BENET".

3.2.22 Annex R22 expressly includes (i) near the bottom (a) the title "DIANA IN SEARCH OF HERSELF" and (b) in similar font-size and different font-style, the subtitle "Portrait of a Troubled Princess"; (ii) in the middle and above, occupying a substantial portion of the annex, a photograph depicting Lady Diana; and (iii) near the very bottom, in font-size smaller than but font-style similar to the title, the by line "SALLY BEDELL SMITH".

3.2.23 Annex R23 expressly includes (i) near the top (a) the title "HOWARD STERN" and (b) farther down (bracketing the photograph mentioned in item "ii" of this paragraph), in smaller font-size and different font-style, the subtitles "KING OF ALL MEDIA" and "THE UNAUTHORIZED BIOGRAPHY"; (ii) in the middle, occupying a substantial portion of the annex, a photograph depicting Howard Stern; and (iii) near the bottom, in a font-size and font-style similar to the upper subtitle, the by line "PAUL D. COLFORD".

3.2.24 Annex R24 expressly includes (i) near the top (a) the title "JACQUELINE KENNEDY ONASSIS" and (b) in smaller font-size and different font-style, the subtitle "A Portrait of Her Private Years"; (ii) in between the title and subtitle, a painting or photograph or perhaps hand-colored photograph, depicting Jacqueline Kennedy Onassis; and (iii) near the bottom, in the same font-size but different font-style as the subtitle, the by line "LESTER DAVID".

3.2.25 Annex R25 expressly includes (i) near the top (a) the title "JUST JACKIE" and (b) in smaller font-size but similar font-style, the subtitle "HER PRIVATE YEARS"; (ii) in the middle, occupying a substantial portion of the annex, a photograph depicting Jacqueline Kennedy Onassis; and (iii) near the bottom in similar font-size and font-style to the subtitle, the by line "EDWARD KLEIN".

3.2.26 Annex R26 expressly includes (i) diagonally from the bottom left to towards top right (a) the title "JERRY SPRINGER", (b) above that, in half the font-size and a different font-style, "UNAUTHORIZED BIOGRAPHY!" and (c) below the title, in the same font-style as the title but approximately one-quarter the font-size, the by line "AILEEN JOYCE"; and (ii) above the items described in "i" of this paragraph, a photograph depicting Jerry Springer and flanked by smaller photographs depicting other individuals not named in the annex.

3.2.27 Annex R27 expressly includes (i) in the top and right margins the title "The Klein Revolution"; (ii) in the middle, occupying a substantial portion of the annex, a photograph depicting Ralph Klein and; (iii) in the bottom margin, in the smaller font-size but similar font-style as the title, the by line "MARK LISAC".

3.2.28 Annex R28 expressly includes (i) in the top right corner the page number "601"; and (ii) three columns of book citations, in which especially the central column largely comprises citations in which the books (a) have titles the first word of which is the first name "Bill" or "Billy" and (b) are by or about individuals having such first names.

3.2.29 Annex R29 expressly includes (i) in the top right corner the page number "829"; and (ii) three columns of book citations, which largely comprise citations in which the books (a) have titles the first word of which is the first name "Joe" or "John" and (b) are by or about individuals having such first names.

3.2.30 Annex R30 expressly includes (i) in the top left corner the page number "830"; and (ii) three columns of book citations, which largely comprise citations in which the books (a) have titles the first word of which is the first name "John" or "Johnny" or "Jon" or "Jonah" or "Jose" or "Joseph" or "Joshua" and (b) are by or about individuals having such first names.

3.2.31 Annex R31 expressly includes (i) in the top right corner the page number "939"; and (ii) three columns of book citations, which largely comprise citations in which the books (a) have titles the first word of which is the first name "Paul" or "Pauline" and (b) are by or about individuals having such first names.

3.2.32 Annex R32 expressly includes (i) in the top margin the subtitle "IS THE INTERNET BRINGING THE WORLD INTO SHARPER FOCUS?" and the "by" line "Virginia Postrel"; (ii) in the bottom right corner the issue date "October 2, 2000", the page number "49" and the periodical's name "Forbes ASAP"; and (iii) in the body of the article various references to "Shakespeare", "Sir Philip Sidney", "Plato", "Galileo" and, in captioning or depicting a photograph of a February 1993 cover of Spy Magazine, the following: "CAMILLE PAGLIA ADVICE COLUMN DEBUT!", "HILARY CLINTON" (with photograph), "Spike Lee for Rent" and "Letterman's Deal".

3.2.33 Annex R33 appears to be a continuation of the Annex R32 document and further includes a reference to "Kurt Anderson".

3.2.34 Annex R34 appears to differ from Annex R1 solely by also having, beginning from the fifteenth page, at the end of what was in Annex R1 the information under the "RESPONSE TO THE COMPLAINT ACCORDING TO THE UDRP" heading, (i) a subheading "5b(i) Further statements to this UDRP Item"; and (ii) under that subheading eight paragraphs numbered 1 through 8. Those eight paragraphs appear to expressly include two types of information, often intricately woven or blended within or between one another: (i) factual background of, or which can be contended to be of, this proceeding; and (ii) contentions by the Respondent. Consequently, the Administrative Panel considers it appropriate to defer further statements about Annex R34 to the "Parties' Contentions" portion of this decision (i.e. paragraphs 4.0 et seq under that heading), and so defers it.

4. Parties' Contentions

Overview

4.0 The Administrative Panel defers to the "Discussion and Findings" portion of this decision (paragraphs 5.0 et seq under that heading) to set out whether and to what extent, and in what sense, the Administrative Panel expressly or implicitly adopts (by or through one or more of admission, notice, perception and inference) any of the information set out in paragraphs 4.0.1 et seq under this heading of "Parties' Contentions".

4.0.1 As indicated by paragraphs 2.1.1 through 3.2.34 hereof, in this proceeding the Complainant's (i) procedural contentions appear to be in the Complainant's e-mail attachment quoted in paragraph 2.3.1 hereof, the Complainant's e-mails quoted in paragraphs 2.6.4 and 2.6.6 (second half) hereof and Annex C12, and will not be set out again here; and (ii) substantive contentions appear to be in the Complaint's form.

4.0.2 As indicated by paragraphs 2.1.1 through 3.2.34 hereof, in this proceeding the Respondent's (i) procedural contentions appear to be in the Respondent's e-mail quoted in paragraph 2.2.2 hereof, Annex R35 and Respondent's e-mails quoted in 2.6.5 and 2.6.6 (first half) hereof, and will not be set out again here; and (ii) substantive contentions appear to be in (a) the Response's form and (b) Annexes R1, R2, R3 and R34.

The Complainant's Substantive Contentions

4.1.1 The Complaint's form includes the Complainant's contention in section 2(a), which includes information to the effect that the name and contact information of the Complainant are as set out in paragraph 1.1 item "(i)" hereof.

4.1.2 The Complaint's form includes the Complainant's contentions in section 3(a), which includes information to the effect that the name and contact information of the Respondent are as set out in paragraph 1.1 item "(ii)" hereof.

4.1.3 The Complaint's form includes the Complainant's contentions in section 3(b) which are as to the name (i.e. "Justin Lumsden" of the organization "Internet North") and contact information of the "Respondent's Other Contact or Representative".

4.1.4 The Complaint's form includes the Complainant's contentions in section 4(a) which are to the effect that the Contested Domain Name is as set out in paragraph 1.2 hereof and that the Registrar for the Contested Domain Names is as set out in item "i" of paragraph 2.1.4 hereof.

4.1.5 The Complaint's form includes the Complainant's contentions in section 4(b) regarding the "Mark in Question" i.e. that since the Complainant was directed by the Provider's form to "Specify the trademark(s) or service mark(s) on which the Complaint is based and, for each mark, describe the goods or services, if any, with which mark is used. For each mark, please identify countries involved and make suitable references to the registration certificates (if any) included in the paper annexes you are sending", that

"1. TIM ALLEN, as used by the actor and comedian (Timothy Alan Dick, whose stage name is Tim Allen) for Entertainment Services, protected under common law trademark. The name Tim Allen is also protected under the common law right of publicity.

"2. TIM ALLEN, United States Trademark Application 76/025,593; for International Class 41, Entertainment Services, including audio and visual media; filed 4/13/00, pending.

"3. TIM ALLEN, United States Intent-to-Use Service Mark Application 75/775,652; for International Class 042, Industrial Design including Commercial Art and Graphic Art Design for others; filed 8/13/99, pending."

4.1.6 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Copy or Similarity" i.e. that since the Complainant was directed by the Provider's form to "Describe the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights", that

"1. The domain name is identical to the Complainant's common law trademark, name, pending U.S. Trademark, and pending U.S. Service Mark. The timallen.com domain name is used for identical services as the Complainant's TIM ALLEN marks.

"2. The timallen.com domain name provides a seamless link to a web site having the domain name celebrity1000.com. The celebrity1000.com web site is devoted to the promotion of individual celebrities and associated Entertainment Services. The Complainant's goods and services are directed to the identical group of consumers to whom the Respondent is directing its services."

4.1.7 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Illegitimacy" i.e. that since the Complainant was directed by the Provider's form to "Describe why the Respondent (Registrant/Domain-name holder) should be considered as having no rights or legitimate interests in respect to the contested domain name(s)" that

"1. The name "TIM ALLEN" is extremely strong in the field of entertainment goods and services. The Respondent is using the domain name timallen.com merely as a link to draw consumers to the entertainment-themed, commercial web site celebrity1000.com, a domain name also owned by the Respondent. Respondent's celebrity1000.com web site identifies Mr. Tim Allen specifically, establishing that Respondent selected the timallen.com domain name with knowledge of Complainant's rights. The impression created by Respondent's use of the timallen.com domain name, linked to the celebrity1000.com web site, is that Complainant endorses Respondent's celebrity1000.com web site. This association is improper.

"2. Regarding the name "TIM ALLEN," the Complainant has the exclusive right to commercially exploit the identity "TIM ALLEN" for Entertainment Services. The Respondent is commercially exploiting the name "TIM ALLEN" for the identical services without the permission of the Complainant. The Respondent's web site timallen.com is exclusively used to draw consumers to the entertainment-themed, commercial website celebrity1000.com.

"3. Respondent has made no effort to use the timallen.com domain name for anything other than a link to Respondent's commercial site celebrity1000.com, thereby suggesting that Respondent merely intends to reserve the timallen.com domain name in contravention of Complainant's rights."

4.1.8 The Complaint's form includes the Complainant's contentions in section 4(c) regarding "Bad Faith" i.e. that since the Complainant was directed by the Provider's form to "Describe why the contested domain name(s) should be considered as having been registered and being used in bad faith" that

"1. The Complainant asserts that the Respondent's use of the mark TIM ALLEN in the domain name timallen.com is exclusively premised on commercial exploitation of the TIM ALLEN mark in the field of Entertainment Services. While the "official" registrant of the timallen.com domain name is the "Tim Allen Club," no such club appears to exist. The owners of the timallen.com domain name are in fact the same entity that owns celebrity1000.com, namely Internet North. The Respondent is seeking to profit from the goodwill generated by the Complainant's efforts in developing the mark. The fact that Respondent appears to have created illusory owners of the timallen.com domain name to distract from the common owner, Internet North, suggests bad faith.

"2. The timallen.com web site is without content; it merely serves as a seamless link to an entertainment-themed, commercial web site operated by the true registrants, Internet North. As such, it can hold no value for any legitimate fan club. In fact, while the registrant of the timallen.com domain name is now listed as "Tim Allen Club," five months ago the registrant was listed as "General Web Club." The fact that Respondent appears to have created illusory owners of the timallen.com domain name to distract from the common owner, Internet North, suggests bad faith.

"3. The use of the name "TIM ALLEN" in connection with the timallen.com domain name is completely void of good faith. The Respondent is capitalizing on the valuable identity of the Complainant for commercial exploitation. Respondent engages in the same conduct with respect to numerous other celebrities, including Harrison Ford, John Travolta, and Mel Gibson. The pirating of other celebrity identities also suggests bad faith."

4.1.9 The Complaint's form includes the Complainant's contention in section 4(d), regarding "Remedy Sought", i.e. "transferred to complainant".

5.8.0 The Complaint's form includes the Complainant's contention in section 4(d), regarding "Other Proceedings", that "Currently no other proceedings are pending."

The Respondent's Substantive Contentions

4.2.0.1 The Response's form includes the Respondent's contention in section 2(a), which includes information to the effect that the name and contact information of the Respondent are as set out in paragraph 1.1 item "(ii)" hereof and in paragraph 4.1.2 hereof.

4.2.0.2 The Response's form includes the Respondent's contention in section 2(b) that the "Respondent's Prime Contact or Representative" is "Jeff Burgar" of the organization "Time Allen Club" and that, aside from also including a street address and from having a different preface in the e-mail address, that person's contact information is the same as the contact information referred to in paragraph 4.1.3 hereof.

4.2.1 The Response's form includes the Respondent's contention in section 3(b) regarding "Copy or Similarity" i.e. that since the Respondent was directed by the Provider's form to "Give your response to the allegations of the Complainant as to the manner in which the contested domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights" that

"1) The Respondent denies the domain name timallen.com is identical to the common-law or pending trademarks of Tim Allen. Despite well-intentioned judgments from both respected Panelists and Courts, the concept a domain name is always and absolutely identical to a trademark with the exception of the '.com' extension is in error.

"In the particular usage of timallen.com, the manner of usage is that of a book title or magazine article or newspaper headline. The usage is intended, in the same manner as such titles, to guide the user to pertinent information about the personage in the 'headline' or 'title.'

"If the argument commonly accepted today is indeed pre-eminent, then it stands to reason any usage of a person's name or a company name in any form of web address without permission is illegitimate. Thus, if www.timallen.com is a trademark infringement, then www.hollywood.net/timallen is an infringement, as is www.entertainmenttonight.com/tvcomedy/timallen.html or www.timallen.goodnews.com

"All of the above are Uniform Resource Locators, or URL's. URL's can apply just as easily to the actual content on a web page, such as www.news.com/#timallen. Such an URL will direct one right to content. It seems somewhat pointless to argue one must relegate that particular content to a title such as www.news/#wecantsaywho. Such an argument eventually collapses under its own weight.

"In the Respondent's usage, the argument this particular domain name is identical is textually accurate, but conceptually different, in the same way a book title about a celebrity may be identical in name, but obviously, can conceptually be somewhat different. Further, the domain name timallen.com is not used for identical services as the Tim Allen marks and there is no evidence produced to suggest such. Therefore, the statement the mark is 'identical' needs fair qualification and deeper probing. In the case of www.timallen.com, comparisons fail, thus the marks are not identical.

"4c2) The timallen.com domain name no longer points to Celebrity 1000. As stated in our Preamble above, the UDRP has no oversight or appeal process. As shown in the 'Rough Justice' study (Appendix 2) there are many bad decisions, just a few of which are listed in the Study. We had high hopes ICANN would fine-tune the UDRP to send clear signals to legitimate website publishers and users such as ourselves as to exactly what usage on the Internet is permissible, and what is not. Unfortunately, the myriad of contradictory decisions, the 'invention' of new rules by Panelists, widespread differences of opinions on the same issues by often well-meaning Panelists, the absence of appeal, and as already stated, the apparent absence of an oversight board all continue to leave us in limbo.

"We thus are moving forward with our plans to develop individual websites for our celebrity names and have started this process.

"The accusation timallen.com OR celebrity1000.com is used to promote the same services as the Complainant is ludicrous.

"Celebrity1000 is a collection of biographies and opinion polls, none of which are covered by the Complainant's marks. Further, the Respondent claims freedom of expression rights, in the same manner a television show, perhaps Entertainment Tonight running an item about a celebrity comedian and telling a few jokes at the same time is in no way infringing on anything the celebrity comedian might be doing.

"Further, there is no evidence produced the Respondent is targetting people interested in humor. The Respondent is targetting people interested in Tim Allen or celebrities, comedians or newsworthy figures in general, in the same manner as a newspaper or magazine or book targets that interest group."

4.2.2 The Response's form includes the Respondent's contention in section 3(b) regarding "Illegitimacy" i.e. that since the Respondent was directed by the Provider's form to "Give your response to the allegations of the Complainant as to why the Respondent should be considered as having no rights or legitimate interests in respect of the contested domain name" that

"1) The UDRP seemingly makes no provisions for the growth or evolution of a web site. It is one of the most powerful features of the World Wide Web that web sites can be changed quickly, easily and dramatically. The UDRP, perhaps intentionally, makes no allowance for changes in a web site that would, in the Panelist's opinion, allow a domain name owner to keep a domain name that might be in dispute.

"While some Panelists may argue it would be impossible to accept 'what ifs' and 'whatevers' and 'hypotheticals' in regard to changes in a web site, the fact does remain, there is no appeal in this process, and no exception to the draconian results. Therefore, we ask for leeway in allowing our 'what ifs.' 'Just because the heads that are rolling are peasant's heads, does not mean the peasants do not value them.' The Respondent does value this domain name

"The Respondent's final objective is to operate a fan appreciation web site at timallen.com and that site is now operating. It will not be repointed to Celebrity1000 and the Respondent will swear that in affidavit if that is required. Disclaimers on the Celebrity1000 web site, and the content of that web site itself should be ample evidence no representation is made the Respondent is attempting to imitate or imply association or endorsement. The Respondent emphatically denies the Complainant's accusations.

"The new website, The Unauthorized Tim Allen Web Site (Appendix 4), takes this 'non-association' to an extreme and we believe the Complainant and the Panel should find this satisfactory.

"Further, to the best of our knowledge, no relationship is needed and no permission is needed to use a celebrity or corporate name in a newspaper headline, on the cover of a magazine, or as the title of a book. Other than the desire of some parties to stifle freedom of expression, we see no reason why we cannot title our website, www.timallen.com. We believe our rights are clear in titling our website www.timallen.com just as they would be in titling a magazine article Tim Allen, or a book Tim Allen.

"We are not seeking to be known as Tim Allen. We are seeking to be known as www.timallen.com, have attempted to do this for four years, and will continue to do so if allowed. We have no desire at all to pretend to be Mr. Allen any more than an author of a Allen biography who names his book 'Tim Allen' is pretending to be Mr. Allen. We believe there is a fundamental difference between impersonating a person, and operating a freedom of speech website ABOUT a person.

"No evidence of actual confusion or misleading impression of association exists.

"It is true Internet lawyers, court judges, and arbitration Panelists abound who see the gullibility of the Internet surfing public as being astronomical, if not in fact boundless. There is not a shred of evidence produced anywhere, and certainly not in this hearing to support this belief of astronomical gullibility.

"This gullibility of the average Internet user means:

a) Internet users experienced and smart enough to know how to operate a 'type-in' domain name must be dumb enough to think they will automatically reach an 'official' site of some kind
b) Then Internet users who know how to type do not know how to read disclaimers or ignore them completely
c) Then Internet users who know how to read do not in fact believe disclaimers if they are presented with them.
This stretches credulity to the absolute limit.

"One also wonders at what point does one say, 'enough is enough. At some point in time a person has to take responsibility for themselves. We cannot babysit them forever.' Except perhaps, in the 'command economy!'

"The ONLY thing the average Internet user expects when typing in a domain name or in fact, using a search engine, is to find SOMETHING about the topic, subject, item, company or person they are looking for. No evidence has ever been produced in any court or in any hearing that people expect to find an Official Web Site when typing in a domain or even when relying on a search engine.

"2) The Respondent denies this. Newspapers, magazines, websites and books all have the right to publish. Neither the timallen.com or the celebrity1000.com web site sells jokes, tim allen t-shirts, or any of the 'pending' articles. The only commercial activity on Celebrity1000.com is the sale of advertising. Newspapers and magazines sell advertising, and book publishers generally speaking sell their books. To impose a rule that ANY commercial activity is unallowed would have the effect of stifling freedom of expression.

"Notwithstanding this, in the absence of clear direction from ICANN, the web site www.timallen.com has no advertising and absolutely no commercial activity of any kind.

"3) The Complainant's statement is now in error. The domain name www.timallen.com now points to The Unauthorized Tim Allen Web Site."

4.2.3 The Response's form includes the Respondent's contention in section 3(b) regarding "Bad Faith" i.e. that since the Respondent was directed by the Provider's form to "Give your response to the allegations of the Complainant as to why the contested domain should be considered as having been registered and used in bad faith by the Respondent" that

"1)The registrant, listed as the Tim Allen Club, is as real as it has to be for the purposes of registration.

"There was nothing misleading or wrong with using this as the Registrant in 1996 when this domain was first registered and there is nothing wrong with this form today. All addresses and contact information is correct. The Registrar has not forbade such usage and has had no trouble in 4 years accepting money from the Tim Allen Club. There is no requirement in the UDRP that states any particular form of Registrant is not acceptable. No notice was ever received in 4 years this form of registrations is not acceptable. There is nothing today in the Registration Rules precluding this form of registration.

"There is nothing in the Registration, or in the real world rules saying the Respondent needs to register, incorporate, form a society, take minutes or file annual reports or seek some kind of authorization in the real world to be a 'club'. A club can be a club of one person or can be a future club of 20,000