ADMINISTRATIVE PANEL DECISION

Under the ICANN Uniform Domain Name Dispute Resolution


 
Complainant: EXARIO NETWORKS INC.
Respondent: THE DOMAIN NAME YOU HAVE ENTERED IS FOR SALE
Case Number: AF-0538
Contested Domain Name: exarionetworks.com
Panel Member: Bradley J. Freedman
 

 

1. Parties and Contested Domain Name

1.1 The Complainant is Exario Networks Inc., of Parsippany, New Jersey, United States of America. In this proceeding, it is represented by its attorneys, McCarter & English, LLP of Newark, New Jersey, United States of America.

1.2 The Respondent is THE DOMAIN NAME YOU HAVE ENTERED IS FOR SALE, of Las Vegas, Nevada, United States of America. In this proceeding, submissions have been made on behalf of the Respondent by H. Wilson of Entredomains, Inc. of Las Vegas, Nevada, United States if America.

1.3 The disputed domain name is exarionetworks.com. The Registrar for the domain name is Network Solutions Inc. of Herndon, Virginia, United States of America.

1.4 This proceeding is pursuant to ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy") and ICANN's Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"). The Network Solutions Inc. Domain Name Registration Agreement regarding the exarionetworks.com domain name subjects the Respondent to Network Solutions Inc.'s Dispute Policy, which is currently the Policy.

2. Procedural History

2.1 Based upon information provided by eResolution's Clerk's Office, the procedural history regarding this matter is as follows:

    2.1.1 The electronic version of the Complainant's complaint form was filed on-line through eResolution's Web site on October 19, 2000. The hardcopy of the complaint form and annexes were received by the Clerk's Office on October 24, 2000. Payment was received by the Clerk's Office on October 19, 2000.

    2.1.2 Upon receiving all the required information, eResolution's Clerk's Office proceeded to: (i) confirm the identity of the Registrar for the contested domain name; (ii) verify the 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.

    2.1.3 The inquiry led eResolution's Clerk's Office to the following conclusions: (i) the Registrar is Network Solutions, Inc.; (ii) the WHOIS database contained all the required contact information; (iii) the contested domain name resolved to an inactive Web page; and (iv) the complaint is administratively compliant.

    2.1.4 On October 19, 2000, eResolution's Clerk's Office sent an email to the Registrar to obtain a copy of the Registration Agreement. The requested document was received on October 20, 2000.

    2.1.5 The Clerk's Office then proceeded to send a copy of the complaint form and the required cover sheet to the Respondent, in accordance with paragraph 2(a) of the Rules.

    2.1.6 The complaint was sent to the Respondent's email address at postmaster@exarionetworks.com, but was returned as "undeliverable". The Clerk's Office also sent the complaint to the Respondent by registered mail, however, and the Canada Post tracking system indicated that all documents were delivered to the Respondent.

    2.1.7 The Clerk's Office fulfilled all its responsibilities under paragraph 2(a) of the Rules in connection with forwarding the complaint to the Respondent and notifying the Complainant, the concerned Registrar and ICANN on October 24, 2000. That date is the commencement date of this administrative proceeding.

    2.1.8 The electronic version of the Respondent's response was filed on-line through eResolution's Web site on October 31, 2000. The hardcopy of the response was received by the Clerk's Office on November 7, 2000.

    2.1.9 On November 8, 2000, the Clerk's Office contacted Bradley J. Freedman and requested that he act as Panelist in this proceeding.

    2.1.10 On November 15, 2000, Bradley J. Freedman agreed to act as Panelist in this proceeding and filed the necessary Declaration of Independence and Impartiality.

    2.1.11 On November 15, 2000, the Clerk's Office forwarded a username and a password to Bradley J. Freedman, allowing him to access the complaint form, the response form, and the evidence submitted by the parties through eResolution's Automated Docket Management System.

    2.1.12 On November 15, 2000, the parties were notified that Bradley J. Freedman had been appointed as Panelist in this proceeding, and that a decision was to be, save exceptional circumstances, handed down on November 29, 2000.

2.2 On November 16, 2000 the Panel issued a Direction, pursuant to Rules paragraphs 10(a) and 12, in which the Panel invited the Respondent to provide such further submissions and evidence as it considered appropriate in support of its assertions that: (a) exarionetworks is its former company name and has been used by it for six years; and (b) when it changed the company name it caused the Network Solutions Inc. WHOIS database to be changed to reflect that the domain name was for sale. The Respondent was directed to provide any relevant submissions and evidence on or before November 24, 2000, and the Complainant was given the right to submit a reply on or before December 1, 2000. The Panel further directed that the date for the issuance of its decision in this matter would be postponed to December 11, 2000.

2.3 The Respondent did not provide any further submissions or evidence on or before the date stipulated in the Direction. On November 28, 2000, the Complainant provided its further submissions. Some of those submissions were not responsive to the Direction and dealt with matters not raised in the Direction. In its deliberations, the Panel has considered only the portions of the Complainant's further submissions that respond to the issues identified in the November 16, 2000 Direction.

2.4 On November 28, 2000, the Respondent sent an email to the Clerk's Office responding to some of the Complainant's November 28, 2000 submissions and stating that the Respondent had submitted additional information in response to the November 16, 2000 Direction by mail, but that material had "been somehow lost in the mail". The Respondent offered to resubmit the material. In response, the Panel directed that the Respondent could have until November 29, 2000 to re-submit its materials in response to the November 16, 2000 Direction by email and facsimile transmission. The Clerk's Office did not receive any further materials from the Respondent, either by the extended November 29, 2000 deadline or subsequently. In its deliberations, the Panel has considered the Respondent's November 28, 2000 email to the extent that it is responsive to the November 16, 2000 Direction or to the portions of the Complainant's November 28, 2000 submissions that have been considered by the Panel.

3. Factual Background

3.1 The Panel proceeds on the basis of the following facts, which are established by the evidence and submissions of the parties:

    3.1.1 On or about March 13, 2000, the Complainant changed its name from Ultracom Internet Technologies to Exario Networks Inc. Since that date, the Complainant has used the business name "Exario Networks Inc." and the trademarks EXARIO and EXARIO NETWORKS (collectively the "Marks") in association with computer software, computer network services, application service provider services, Web site hosting services and related applications.

    3.1.2 On March 14, 2000, the Complainant issued a press release publicly announcing its new corporate name.

    3.1.3 On March 14, 2000, the Respondent registered the exarionetworks.com domain name.

    3.1.4 Either at the time when the Respondent registered the exarionetworks.com domain name or some time prior to April 12, 2000, the Respondent caused the name of the registrant of the exarionetworks.com domain name to appear in the Network Solutions Inc. WHOIS database as THE DOMAIN YOU HAVE ENTERED IS FOR SALE.

    3.1.5 On March 14, 2000, the Complainant received an email from BEvans8576@aol.com, which read as follows: "Someone emailed me about a domain name I own: exarionetworks.com. yes, it is for sale.".

    3.1.6 Following the initial March 14, 2000 email from BEvans8576@aol.com and until July 10, 2000, there were a series of email messages and correspondence regarding the sale of the exarionetworks.com domain name. The email messages sent to the Complainant or its attorneys came from either "BEvans8576@aol.com" or "B Evans ", and one purported to be signed by "J. Reimer".

    3.1.7 On April 4, 2000, in an email message sent to the Complainant's attorney at 4:05 p.m., "B Evans " offered to transfer the exarionetworks.com domain name in exchange for a $5,000 donation to a well-known charitable organization. A few minutes later, in an email sent to the Complainant's attorney at 4:19 p.m., "BEvans8576@aol.com" wrote: "I am informed that the name will be transferred to you for a donation to charity. I don't see how you have a beef with that. Send some kids to camp for god sake. I mean, I know your [sic] a lawyer and all, but ". Further emails from "B Evans " to the Complainant's attorney reiterated the offer to transfer the exarionetworks.com domain name in exchange for a $5,000 donation to charity.

    3.1.8 On April 12, 2000, the Complainant's attorney received an email from "BEvans8576@aol.com" which stated: "Just send me the transfer forms. You win". The Complainant sent the necessary transfer forms, but no response was received.

    3.1.9 The Respondent denies that it is responsible for any emails sent from "BEvans8576@aol.com", but admits that it is responsible for the emails from "B Evans ", including the email offers to transfer the domain name in exchange for a $5,000 charitable donation.

4. Parties' Contentions

4.1 The Complainant submits that the Marks are its trademarks and service marks in the United States, and that the exarionetworks.com domain name incorporates the Marks in their entirety. The Complainant submits that the Respondent is not conducting, and never has conducted, any business using the Marks or any similar marks. The Complainant submits that the Respondent has repeatedly offered to sell the exarionetworks.com domain name to it, has demanded that the Complainant make a donation to charity in exchange for the domain name, and has used false email addresses and aliases in an attempt to evade contact from the Complainant's representatives.

4.2 The Respondent denies that the Complainant holds a registered trademark in the EXARIO NETWORKS mark. The Respondent contents that Exario Networks, or some variation of it, is its prior corporate name that it used for six years. The Respondent claims that it recently registered the exarionetworks.com domain and caused the Network Solutions Inc. WHOIS database to be changed to read THE DOMAIN NAME YOU HAVE ENTERED IS FOR SALE in order to sell the domain name and defray the expense of its corporate name change. The Respondent claims that other parties use the EXARIO name, and other names similar to it; that it has received several requests to purchase the exarionetworks.com domain name; and that the Complainant only filed this complaint when its attempts to negotiate a transfer of the exarionetworks.com domain name failed after several months. The Respondent denies that it is a cybersquatter, and claims that it has never been involved in any other cybersquatting cases. The Respondent denies that it is responsible for the emails from "BEvans8576@aol.com". The Respondent says that "This is simply a case of coincidence". The Respondent also states an intent to file a lawsuit if the Complainant prevails in this proceeding.

5. Discussion and Findings

(a) Applicable Law

5.1 Rules paragraph 15(a) provides that the Panel shall decide the complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Since both the Complainant and the Respondent are based in the United States of America, the Panel will look to the rules and principles of United States law to the extent that it would assist the Panel in determining whether the Complainant has met the burden imposed by Policy paragraph 4(a). See for example Packaging World Inc. v. Zynpak Packaging Products Inc., Case No. AF-0233 and the other decisions referenced therein.

(b) The Requirements of the Policy

5.2 Policy paragraph 4(a) provides that the Policy applies only if: (i) the exarionetworks.com domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the exarionetworks.com domain name; and (iii) the exarionetworks.com domain name has been registered and is being used in bad faith by the Respondent. The burden is on the Complainant to prove each of those three elements.

    (i) The Complainant's Trademark Rights

5.3 The Complainant asserts that it uses the Marks as its trademarks and service marks. The Respondent counters that the United States Patent and Trademark Office has no record of such trademarks being registered by the Complainant, and contends that the Complainant "blatantly lied in the complaint by stating they have a trademark on Exario Networks".

5.4 The Respondent is proceeding on a fundamental misapprehension as to the scope of the Policy. It is by now well-established that a complainant need not own a registered trademark in order to invoke the Policy. It is sufficient that a complainant have rights in an unregistered, common law trademark: see for example: SeekAmerica Inc. v. Tariq Masood and Solo Signs, Case No. D2000-0131 (April 13, 2000); Packaging World Inc. v. Zynpak Packaging Products Inc., Case No. AF-0233 (July 28, 2000); MathForum.com LLC v. Weiguang Huang, Case No. D2000-0743 (August 23, 2000); Gallerina v. Mark Wilmhurst, Case No. D2000-0730 (July 18, 2000); Roberts v. Boyd, Case No. C2000-0210; Winterson v. Hogarth, Case No. D2000-0235; Gateway Inc. v. Cadieux, Case No. D2000-0198; and Potomac Mills Limited Partnership v. Gambit Capital Management, Case No. D2000-0062.

5.5 Under United States trademark law, common law trademark rights are established by the use of a distinctive mark in association with wares and services which results in the mark acquiring goodwill in the area in which it is used. Inherently distinctive marks are those which are arbitrary, fanciful, and not descriptive of the wares or services with which they are used. Evidence of intentional copying may support an inference that the copied mark is inherently distinctive, and that there is goodwill or reputation in the copied mark. An otherwise descriptive term may acquire distinctiveness (or secondary meaning) as a result of use in connection with certain wares or services: see Classified Ventures L.L.C. v. Softcell Marketing Inc., 109 F.Supp. 2d 898 (N.D.Ill. 2000) and Shade's Landing Inc. v. Williams, 76 F.Supp. 2d 983 (D.Minn. 1999).

5.6 In this case, the Panel is satisfied that the Marks are distinctive and are not merely descriptive of the wares and services with which they are used by the Complainant. The Marks appear to be fanciful and arbitrary.

5.7 The Complainant has not presented extensive evidence regarding its use of the Marks or the reputation and goodwill acquired by the Marks. It has submitted only a press release announcing its change of name to Exario Networks Inc. and its use of the Marks, evidence of its use of the Marks on its Web site at exarionetworks.net, and a schedule of the wares and services in connection with which it uses the Marks. In addition, the Marks have only been used by the Complainant for a few months, since March 14, 2000. The Panel notes, however, that trademark rights may accrue quickly on the Internet due to the accelerated speed at which it allows information to be distributed: see Web2You Inc. v. Mydotcom, Case No. AF-0268 (August 7, 2000); Creo Products Inc. & anor. v. Website in Development, Case No. D2000-0160 (May 1, 2000); and Classified Ventures L.L.C. v. Softcell Marketing Inc., 109 F.Supp. 2d 898 (N.D.Ill. 2000).

5.8 While a more comprehensive evidentiary record may have assisted the Panel, it is not expressly required by the Policy or the Rules. The Panel also notes that the Complainant has certified that the information contained in the complaint is, to the best of the Complainant's knowledge, complete and accurate and the assertions in the complaint are warranted under the Rules and applicable law.

5.9 On balance, the Panel is satisfied that the Complainant has made use of the Marks and acquired common law rights in them sufficient to satisfy the requirements of Policy paragraph. 4(a)(i).

5.10 The Panel is also satisfied that the exarionetworks.com domain name is identical to or confusingly similar to the Marks. When comparing a disputed domain name and a trademark in which the Complainant has rights, the addition of the .com suffix is irrelevant for the purpose of determining whether the domain name it is identical or confusingly similar to a trademark: Rollerblade Inc. v. Chris McGrady, Case No. D2000-0429 (June 25, 2000); and Nintendo of America Inc. v. Alex Jones, Case No. D2000-0998 (November 17, 2000). Rather, one looks to the second-level domain for such a determination, since the .com suffix is merely descriptive of the registry services and is not an identifier of a source of goods or services: see Experience Hendrix LLC v. Denny Hammerton and the Jimi Hendrix Fan Club, Case No. D2000-0364 (August 2, 2000).

5.11 Furthermore, the mere omission of spaces between the components of a trademark when used in a domain name does not mean that the domain name and the mark cease to be identical. The omission of spaces is simply a function of the technological limitations of domain names, and should be disregarded when determining whether the domain name is identical or confusingly similar to a mark: see for example, Blue Cross and Blue Shield Association and Trigon Insurance Company Inc. d/b/a Blue Cross Blue Shield v. InterActive Communications Inc., Case No. D2000-0788 (August 28, 2000).

5.12 When the .com suffix and the space between EXARIO and NETWORKS is excluded from consideration, the exarionetworks.com domain name is identical to the Complainant's EXARIO NETWORKS trademark. This finding is sufficient to satisfy the requirements of Policy paragraph 4(a)(i).

5.13 In the circumstances, the Panel need not enter into the debate regarding the proper test to be applied regarding the "confusingly similar" criterion of the Policy: contrast Smoky Mountain Knife Works v. Deon Carpenter, Case No. AF-230a/230b (July 3, 2000), where a literal comparison of the domain name and the trademark was used, with cases such as Newport News Inc. v. VCV Internet, Case No. AF-0238 (July 18, 2000) and Wal-Mart Stores Inc. v. Walsucks and Walmarket Puerto Rico, Case No. D2000-0477 (July 20, 2000), where a conventional trade-mark law "likelihood of confusion" analysis was used. The Panel leaves that contentious issue to another day.

    (ii) The Respondent's Rights and Legitimate Interests

5.14 Policy paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights or legitimate interests in the exarionetworks.com domain name. However, because the nature of any rights or interests held by the Respondent necessarily lies most directly within the knowledge of the Respondent, the burden on the Complainant in this regard is relatively light: see Packaging World Inc. v. Zynpak Packaging Products Inc., Case No. AF-0233 (July 28, 2000); Educational Testing Service v. Netkorea Co., Case No. D2000-0087, and Grove Broadcasting Co. Ltd. v. Telesystems Communications Limited, Case No. D2000-0158 (May 9, 2000).

5.15 Paragraph 4(c) provides that the Panel shall find that the Respondent has legitimate rights or interests in the exarionetworks.com domain name if, on the evidence:

    (i) before any notice to the Respondent of the dispute, the Respondent used, or made demonstrable preparations to use, the exarionetworks.com domain name or a name corresponding to the exarionetworks.com domain name in connection with a bona fide offering of goods or services; or

    (ii) the Respondent has been commonly known by the exarionetworks.com domain name, even if it has acquired no trademark or service mark rights; or

    (iii) the Respondent is making a legitimate noncommercial or fair use of the exarionetworks.com domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

5.16 The Respondent's registration and temporary use of the exarionetworks.com domain name, which the Panel finds to be in bad faith (as discussed below), is not sufficient to establish any rights or interests in the domain name in the sense contemplated by Policy paragraph 4(a)(ii): see National Football League Properties Inc. v. One Sex Entertainment Co., Case No. D2000-0118; and The Hamlet Group Inc. v. Lansford, Case No. D2000-0073.

5.17 The Complainant contends that the Respondent is not conducting, and never has conducted, any business under the name or mark EXARIO NETWORKS, or any similar mark or name.

5.18 The Respondent disputes the Complainant's contention, and claims that the exarionetworks.com domain name corresponds to its former corporate name used for six years. The Respondent did not submit any evidence in support of its contentions, but offered to do so if requested by the Panel. The Panel issued a Direction inviting the Respondent to provide that evidence. The Respondent failed to do so. In accordance with Rules paragraph 10(a), which requires the Panel ensure that each party is given a fair opportunity to present its case, the Panel extended the deadline for the Respondent to provide the information requested in the Direction. The Respondent again failed to do so. In the circumstances, the Panel finds that the Respondent has been given a fair opportunity to present its case.

5.19 Rules paragraph 14(b) provides that if a party, in the absence of exceptional circumstances, does not comply with a request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. In the circumstances, the Panel draws an adverse inference from the Respondent's failure to provide any evidence in support of its claim of rights or legitimate interests in the exarionetworks.com domain name.

5.20 The Panel finds that the Respondent has no rights or legitimate interests in the exarionetworks.com domain name.

    (iii) Bad Faith Registration and Use

5.21 Policy paragraph 4(a)(iii) requires the Complainant to prove that the Respondent registered and has used the exarionetworks.com domain name in bad faith. Policy paragraph 4(b) provides that the following circumstances are deemed to be evidence that a respondent has registered and used a domain name in bad faith:

    (i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or

    (ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

    (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

    (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its Web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement of its Web site or location or of a product or service on its Web site or location.

5.22 The Respondent admits that it registered the domain name in order to sell it, and that it offered to transfer the exarionetworks.com domain name to the Complainant if the Complainant donated $5,000 to charity. Based upon those admissions and the corresponding evidence submitted by the Complainant, the Panel finds that the Respondent registered the exarionetworks.com domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name. It is immaterial that the Registrant requested the payment be made to a charity.

5.23 The Panel's finding is supported by the fact that "THE DOMAIN NAME YOU HAVE ENTERED IS FOR SALE" is the registered name of the registrant of the exarionetworks.com domain name. Other panels have found that such public offers to sell domain names, even where no price is stipulated expressly, amounts to bad faith registration and use within the meaning of Policy paragraph 4(b)(i): see, for example, N.C.P. Marketing Group Inc. v. Entredomains, Case No. D2000-0387; Robert Ellenbogen v. Mike Pearson, Case No. D2000-0001; Harrod's Limited v. Robert Boyd, Case No. D2000-0060; Unibanco - Uniao de Banclos Brasileiros S.A. v. Vendo Domain Sale, Case No. D2000-0671; and American Golf Corporation v. The Perfect Web Corporation, Case No. D2000-0908. In the circumstances, however, the Panel need not determine whether such conduct alone is sufficient to satisfy the requirements of Policy paragraph 4(b)(i).

5.24 The Complainant also contends that the Respondent is responsible for the emails from "BEvans8576@aol.com", which offered to sell the exarionetworks.com domain name to the Complainant. The Respondent denies that it is responsible for the emails from "BEvans8576@aol.com", and claims that has never been involved in any cybersquatting cases. The Respondent claims that its registration of the exarionetworks.com domain name on the same day that the Complainant publicly announced its new EXARIO NETWORKS corporate name and trademark is merely a coincidence. The Respondent's denials and claims are not credible.

5.25 In preparing its decision, the Panel has come across several cases under the Policy in which the Respondent has been named or involved and which involved patterns of conduct that are strikingly similar to the facts in this case. See MedicaLogicMedscape v. The Domain Name You Have Entered is for Sale, Case No. FA0005000094933; Cree Inc. v. The Domain Name You Have Entered is for Sale, Case No. FA0005000094790; Creo Products Inc. & anor v. Website in Development, Case No. D2000-0160; N.C.P. Marketing Group Inc. v. Entredomains, Case No. D2000-0387; Astro-Med Inc. v. Merry Christmas Everyone! and B. Evans, Case No. D2000-0072; iBiomatics LLC. v. The Domain Name You Have Entered Is For Sale, Case No. FA0008000095429; Marconi Commerce Systems Inc. v. B. Evans, Case No. FA0002000093560; and International Moblie Satellite Organisation and Inmarsat Ventures Limited v. Domains, Entredomains Inc. and Brian Evans, Case No. D2000-1339. Some of those cases involved email from "BEvans8576@aol.com", including unsolicited offers to sell domain names that are virtually identical to the March 14, 2000 email from BEvans8576@aol.com to the Complainant. Some of those cases also involved the same Entredomains trade name used by the Respondent. In many of those cases, the respondent engaged in an amateurish to-and-fro with the trademark owner by alternatively denying and admitting sending certain emails. Also, most of those cases involved domain names incorporating corporate names that were registered soon after public announcements regarding corporate mergers or name changes. In two cases, the registrant claimed that the domain name was associated with a company name used for six years. In all but one of those cases, the panel found that the domain name had been registered and used in bad faith.

5.26 The Panel considers that it is entitled to have regard to the findings of other panels when determining whether the Respondent has acted in bad faith. In proceedings under the United States Anticybersquatting Consumer Protection Act, courts have relied on findings made by other courts, or the existence of pending similar proceedings, when determining whether the defendant has engaged in a pattern of registering and using domain names in bad faith: see, for example, Electronics Boutique Holdings Corp. v. John Zuccarini, 2000 U.S. Dist. LEXIS 15719 (E.D.Pa. 2000). A similar approach was taken by the panels in MedicaLogicMedscape v. The Domain Name You Have Entered is for Sale, Case No. FA0005000094933; and iBiomatics LLC. v. The Domain Name You Have Entered Is For Sale, Case No. FA0008000095429.

5.27 Based upon the facts of this case and the facts reported in other decisions pursuant to the Policy, the Panel finds that the Respondent registered the exarionetworks.com domain name in order to prevent the Complainant, the owner of the trademark and service mark, from reflecting its trademark in a corresponding domain name, and that the Respondent has engaged in a pattern of such conduct.

5.28 For these reasons, the Panel finds that the Respondent registered and used the exarionetworks.com domain name in bad faith.

5.29 The Panel also finds that the Respondent has made false submissions to the Panel in an attempted to mislead the Panel. In particular, the Panel finds that the Respondent falsely claimed that it had previously used a corporate name corresponding to the exarionetworks.com domain name, and the Respondent falsely denied any previous involvement in cybersquatting disputes. Those findings confirm the Panel's view that the Respondent's conduct regarding the exarionetworks.com domain name is precisely the type of bad faith domain name registration and use that the Policy was designed to address.

(c) Remedy

5.30 The Policy provides that where the requirements of Policy paragraph 4(a) are established, a panel may order that the registration of an impugned domain name either be transferred to the complainant or cancelled, as the complainant may elect. The Complainant has requested that the registration of the exarionetworks.com domain name be transferred from the Respondent to the Complainant.

5.31 For the reasons set forth in this decision, the Panel concludes that the appropriate remedy is a transfer of the registration of the exarionetworks.com domain name from the Respondent to the Complainant.

6. Conclusion

6.1 The Complainant has established each of the three requirements stipulated in Policy paragraph 4(a). The Panel therefore directs that the registration of the exarionetworks.com domain name be transferred from the Respondent to the Complainant.

7. Signature

7.1 Made in Vancouver, British Columbia, Canada, this 11th day of December, 2000.

(s) Bradley J. Freedman

Presiding Panelist