ADMINISTRATIVE PANEL DECISION

Under the ICANN Uniform Domain Name Dispute Resolution Policy

1. Parties and Contested Domain Name

The Complainant is Huronia Precision Plastics Inc. (of 281 Cranston Cr., Box 115, Midland, Ontario Canada L4R 4K6), the Respondent is L. D. I. Industries (of 21 Laurier Road, Penatanguishine, Ontario Canada L9M 1G8), and the Contested Domain Name is huroniaprecisionplastics.com. 

2. Procedural History

The electronic version of the Complaint Form was filed on-line through the Provider's (i.e. eResolution's) Website on September 14, 2001. The hardcopy of the Complaint Form, and of the Complaint Annexes, were received on September 17, 2001. Payment was received on September 21, 2001.

Upon receiving all the required information, eResolution's Clerk proceeded to:

- Confirm the identity of the Registrar for the Contested Domain Name;
- Verify the Registrar's Whois Database and confirm all the essential contact information for the Respondent;
- Verify if the Contested Domain Name resolved to an active Web page;
- Verify if the Complaint was administratively compliant.

That inquiry lead the Clerk of eResolution to the following conclusions: the Registrar is Tucows Inc., the Whois database contains all the required contact information, the Contested Domain Name resolves to an inactive Web page and the Complaint is administratively compliant.

An email was sent to the Registrar by eResolution Clerk's Office to obtain confirmation and a copy of the Registration Agreement on September 17, 2001. The requested information was received September 20, 2001. 

The Clerk then proceeded to send a copy of the Complaint Form and the required Cover Sheet in accordance with Rule 2(a) (being one of " the Rules ") under ICANN's Uniform Domain Name Dispute Resolution Policy (hereinafter " the Policy "). The Clerk's Office fulfilled all its responsibilities under Rule 2(a) in forwarding the Complaint to the Respondent, and in notifying the Complainant, the concerned Registrar, and ICANN on September 21, 2001. That date is the official commencement date of this administrative proceeding.

No emails were returned " undeliverable ". All the faxes were successful. 

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

On September 27, 2001, the Respondent submitted, via eResolution Internet site, a response that included a Response Form. The signed version of that response was received on October 10, 2001. Neither the e-version nor the signed version included or referred to any response annexes. 

On October 12, 2001, the Clerk's Office contacted Rodney C. Kyle, and requested that he act as the panelist in this case.

On October 15, 2001, Rodney C. Kyle accepted to act as the panelist in this case and filed the necessary Declaration of Independence and Impartiality.

On October 15, 2001, the Clerk's Office forwarded a user name and a password to Rodney C. Kyle, allowing him to access the Complaint Form, the Complaint Annexes, and the Response Form, through eResolution's Automated Docket Management System.

On October 15, 2001, the parties were notified that Rodney C. Kyle had been appointed and that a decision was to be, save exceptional circumstances, handed down on October 30, 2001. On 30 October 2001 that deadline was extended to 5 November 2001.

3. Factual Background

Factual background is subsumed in part 5 hereof, "Discussion and Findings".

4. Parties' Contentions

Parties' contentions are subsumed in part 5 hereof, "Discussion and Findings". 

5. Discussion and Findings

PROCEDURAL ASPECTS

As is readily apparent below under the heading of « SUBSTANTIVE ASPECTS », the Administrative Panel finds that, in respect of the Contested Domain Name, the Complainant has asserted to the Provider, in accordance with the Policy, the Rules, the Provider’s Supplemental Rules, and forms made under the Provider’s Supplemental Rules, that (i) the Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the domain name; and (iii) the Respondent's domain name has been registered and is being used in bad faith.

The Administrative Panel finds that in the immediately preceding paragraph items « (i) », « (ii) » and « (iii) » respectively correspond to Policy section 4(a)'s elements « (i) », « (ii) » and « (iii) » as read in view of the set of three notes preambulatory of the Policy (herein « the Notes »).

By the preamble of Policy section 4 and the preamble of Policy section 4(a), both as read in view of the Notes, Policy section 4 « sets forth the type of disputes for which [the Respondent is] required to submit to a mandatory administrative proceeding » and which, in view of the immediately preceding paragraph hereof, « will be conducted before [the Provider] ».

SUBSTANTIVE ASPECTS

By Policy section 4(a), « In the administrative proceeding, the [C]omplainant must prove that each of these three elements are present »: « (i) [the Respondent's] domain name is identical or confusingly similar to a trademark or service mark in which the [C]omplainant has rights; and (ii) [the Respondent] has no rights or legitimate interests in respect of the domain name; and (iii) [the Respondent's] domain name has been registered and is being used in bad faith. »

Policy Section 4(a)(i)

On the one hand, in effect, the Complainant’s contentions of fact, pleaded in the Complaint Form, include two main groups of contentions that relate to Policy section 4(a)(i).

Firstly, within the meaning of the Policy section 4(a)(i) expression « [the Respondent’s] domain name is identical or confusingly similar to a trademark or service mark in which the [C]omplainant has rights » there are eight  contentions. (To facilitate explanations further on in these reasons for decision, the Panel has added underlining to some of those eight contentions.) The contentions are as follows: (i) the Complainant is an Ontario corporation that has existed since 1998, primarily manufactures precision injection moulded plastic parts for the automotive industry, and is based in the town of Midland in the province of Ontario (paragraph 1) which town the Panel takes judicial notice of as being in the area of Northern Ontario commonly called Huronia; (ii) for its manufactured precision plastic products, the Complainant has established a solid reputation and significant goodwill in the automotive industry in Canada and the United States, and in Canada generally (paragraph 2); (iii) said reputation and goodwill have respectively been (a) established through or embodied in Huronia-area awards and Huronia-area media coverage since January 1999 (paragraph 3) and (b) embodied in the mark « HURONIA PRECISION PLASTICS » through use of that mark in Canada by the Complainant as a trade mark in association with the manufacture and sale of precision plastic parts primarily for the automotive industry such that trade mark rights in and to that mark exist in Canada and that the Complainant is the owner of those trade mark rights (paragraphs 4, 5, 6, and 18); (iv) said use has been since 1988 (paragraph 6) or at least as early as 31 January 1995 (paragraph 4); (v) from 28 November 2000 the Contested Domain Name as given in part 1 hereof has been registered to the Respondent, as per the Respondent’s name and address given in part 1 hereof (which address the Panel takes judicial notice of as being in Huronia), and the Administrative Contact of that registration is Cris Van also of that same address (paragraph 8); (vi) the Respondent’s name is a business name registration, for use with « injection moulding », which registration is authorized by Cristopher Van Den Heuvel (paragraph 9) and gives a business address the Panel takes judicial notice of as being the same address as the Respondent’s address given in part 1 hereof; (vii) the Respondent and the Complainant are (a) competitors (paragraphs 10 and 18), directly in a very narrow and competitive industry in North America manufacturing precision plastic parts primarily for the automotive industry (paragraph 10) or in the precision injection moulding business (paragraph 18) and (b) both situated in Northern Ontario and well aware of one another (paragraph 10); and (viii) the Contested Domain Name is identical or confusingly similar to the mark « HURONIA PRECISION PLASTICS » (paragraphs 19, 20, 21 and 22). The Panel especially notes that there is expressed reference to the Complainant being « the owner of all rights, including … trade-mark rights in and to HURONIA PRECISION PLASTICS in Canada » (first sentence of paragraph 4), so the above eight contentions (and especially contentions (iii)(b) and (viii)) are not limited to being contentions of rights « in and to » either or both of  (i) trade mark registrations; or (ii) pending applications for trade mark registrations. Indeed, they do not expressly refer to, and appear to not implicitly include, contentions of rights « in and to » actual registrations, or pending applications for registration, of  trade marks. Instead, inter alia, they (i) include implicit contentions that the trade mark rights in and to the mark « HURONIA PRECISION PLASTICS » in Canada are common-law trade mark rights; and (ii) expressly are contentions that, inter alia, those trade mark rights are based on use of that mark as a trade mark in Canada by the Complainant, that the Complainant is the owner of those trade mark rights, and that the Contested Domain Name is identical or confusingly similar to that mark.

Secondly, that each of the following Complaint Annexes contains evidence that is rationally probative of the proposition stated herewith:  (i) Annex A , that the incorporation occurred by articles of incorporation; (ii) Annex B, that said awards and media coverage occurred; (iii) Annex C, that  said use occurred and said common-law trade mark rights exist and are owned by the Complainant; (iv) Annex E, that said domain name registration occurred; (v) F, that said business name registration occurred; and (vi) Annexes N and O, that there have been arbitral panels’ stated reasons for decision in which respective domain names were ruled to be « confusingly similar » to respective trade marks within the meaning of that expression in Policy section 4(a)(i).

On the other hand, in effect, the Respondent’s contentions of fact, pleaded in the Response Form, do not appear to dispute (or, phrased differently, do not appear to « put in issue ») the Complainant’s contentions of fact set out in the two immediately preceeding paragraphs hereof except in the sense and to the extent of the four ways set out in this paragraph. First though, the Panel notes that in the Respondent’s contentions the only occurrence of the expression « trade mark » (or of the variations on it of « trademark » or « trade-mark » or « service mark ») is as to the Respondent having « discovered that no … trade-mark was found to be registered to the complainant or anyone else nor was there any pending [application for registration of a trade-mark]» (emphasis added). In so noting, the Panel recognizes that although it is possible for either or both of trade name rights and trade mark rights to subsist in particular subject-matter (whether that subject-matter is what might commonly be called respectively either a name or a mark), that possibility does not detract from the distinction between trade names and trade marks: basically, trade names distinguish businesses from one another and trade marks distinguish wares or services from one another, so use of subject-matter as a trade name is not necessarily use of that subject-matter as a trade mark and vice versa. In any event, common-law trade mark rights per se are neither expressly nor implicitly contended against in the above-quoted passage from the Response Form, at least not in the following ways: not as to whether they exist in Canada in and to the mark « HURONIA PRECISION PLASTICS », not as to whether they are based on use of that mark as a trade mark in Canada by the Complainant, not as to whether the Complainant is the owner of them, and not as to whether the Contested Domain Name is identical or confusingly similar to that mark. That said though, the Respondent has made the four contentions alluded to at the beginning of this paragraph, regarding aspects of those rights: (i) the Respondent has “been in business for approximately 17 years as opposed to” the Complainant’s having been incorporated on “March 18, 1998” (emphasis added) and so that the Complainant “can not claim any long term history beyond the date of incorporation” i.e. can not have used the mark « HURONIA PRECISION PLASTICS » as a trade mark earlier than that date of incorporation (e.g. not as early as either of the Complainant’s contended dates of as early as 1988 or of at least as early as 31 January 1995); (ii) assuming that competition between the Complainant and the Respondent is a factor or requirement in whether the Contested Domain Name “is identical or confusingly similar” to that mark, the Complainant and the Respondent are not in competition because (a) the Respondent seems to contend the product line of the Complainant “is strictly automotive” (emphasis added) whereas that of the Respondent is “about 40% automotive and 60% other applications” (emphasis added) and (b) the Complainant and the Respondent “have only one customer in common” (emphasis added) and the Complainant and the Respondent share between them a portion of trade with that customer; (iii) there is evidence that is rationally probative of that contention “(ii)(a)”, in that the depictions of products the Complainant submitted from the Respondent’s web site (apparently indicated by Complaint Form paragraph 11 as being Complaint Annex G) show many products the Respondent manufactures which the Complainant does not and therefore show that the Respondent is “more than a supplier to the automotive industry”; and (iv) there is evidence that is rationally probative of that contention “(ii)(b)” , in that the contention is “to the best of [the Respondent’s] knowledge”.

However, the Respondent’s contention « i », that the Complainant was incorporated on 18 March 1998 and can not have used the mark « HURONIA PRECISION PLASTICS » as a trade mark earlier than that date, does not dispute (or, phrased differently, does not « put in issue ») Complainant’s contention (made in Complaint Form paragraph 1) that the Complainant was incorporated in 1998. Rather, (as explained in the following paragraph hereof) the Respondent’s contention admits that the incorporation occurred in 1998 and further contends that within 1998 the date of incorporation was 18 March; the Respondent does not tender any evidence in support of that further (i.e. « March 18 ») contention. As for the Respondent’s contention « ii »,  that the Complainant and the Respondent are not in competition, the contention disputes the Complainant’s contention that the Complainant’s product line is « primarily » automotive, by contending that instead the Complainant’s product line is « strictly » automotive, yet the Respondent further contends (admits, actually, as will be explained in the following paragraph) to being “about 40% automotive” and to having “a customer in common”. Merely because the Respondent contends it has product lines both inside and outside of the automotive industry does not mean, even if the Complainant were to be strictly limited to the automotive industry, that the Respondent’s automotive products are not in competition with the Complainant’s automotive products. As will be explained in the following paragraph, neither Complaint Annex G nor “the best of [the Respondent’s] knowledge” are to be looked to as to whether they respectively prove (i) the Complainant’s product line to be “strictly automotive” or the Respondent’s product line to be “40% automotive” or that there are many products the Respondent manufactures which the Complainant does not and to therefore show that the Respondent is more than (rather than only other than) a supplier to the automotive industry or (ii) that the Complainant and the Respondent have a customer in common and share between them a portion of trade with that customer: the pleadings establish that there is actually no issue as to whether the Complainant and the Respondent are in competition with one another of a type and sufficient degree for their behavior to be subject to at least Policy section 4(a)(i) as resorted to in this case. Moreover, that is especially so in view of various of the Complainant’s contentions indicated above, not disputed by the Respondent, and, as explained in the following paragraph, admitted by the Respondent: that the Complainant and the Respondent are both situated in Northern Ontario (and more particularly in the area which the Panel takes judicial notice of as being commonly called Huronia) where they both manufacture precision injection moulded plastic products.

In view of the five immediately preceding paragraphs hereof, the Panel notes two things. Firstly, that Rule 10(d) provides that “The Panel shall determine the admissibility, relevance, materiality and weight of the evidence.” Secondly, that the rule of law that applies to the circumstances set out in the five immediately preceding paragraphs hereof is as follows: a complainant’s pleading of fact that is not disputed (or, phrased differently, not « put in issue ») by a respondent against whom it is contended, is an admission by that respondent, so evidence tendered to establish that fact becomes immaterial, and hence inadmissible, as to establishing that fact. (As for characterizing undisputed facts as admissions, see e.g. W.N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”, (1913-14) 23 Yale L. J. at 27, footnote 23:

“Both [dispositive] and evidential facts must, under the law, be ascertained in some one or more of four possible modes: 1. By judicial admission (what is not disputed); 2. By judicial notice, or knowledge (what is known or easily knowable); 3. By judicial perception (what is ascertained directly through the senses; cf. ‘real evidence’); 4. By judicial inference (what is ascertained by reasoning from facts already ascertained by one or more of the four methods here outlined).”

As for characterizing evidence tendered to establish undisputed facts as immaterial, and hence inadmissible, see e.g. Delisle, Evidence Principles and Problems, (1984), Carswell, Toronto, at  5:

“The concept of relevancy is simply dictated by our own present insistence on a rational method of fact-finding.

           “However, not only must the evidence tendered be rationally probative of the fact sought to be established; the fact sought to be established must concern a matter in issue between the parties, i.e. it must be material. …

“The law of evidence then principally consists of the study of canons of exclusion,

rules regarding admissibility, which deny receipt into evidence of information which is rationally probative of a matter in issue between the parties.”)

In view of the six immediately preceding paragraphs hereof, the Panel makes two findings. Firstly, for the purposes of this proceeding the Respondent admits that within the meaning of the Policy section 4(a)(i) expression « [the Respondent’s] domain name is identical or confusingly similar to a trademark or service mark in which the [C]omplainant has rights »: (i) common-law trade mark rights in and to the mark « HURONIA PRECISION PLASTICS » exist in Canada; (ii) those common-law trade mark rights are based on use of that mark as a trade mark in Canada by the Complainant since 1998; (iii) the Complainant is the owner of those common-law trade mark rights; and (iv) the Contested Domain Name is identical or confusingly similar to that mark. (Other admissions by the Respondent resulted from the Complaint Form and the Response Form, and some of them are dealt with below in discussing Policy sections 4(a)(ii) and 4(a)(iii).) Secondly, in relation to establishing those four facts, the evidence contained in Complaint Annexes A, B, C, E, F, N, and O (as tendered by the Complainant) and G (as tendered by the Complainant seemingly on one or more other topics and adopted by the Respondent on this topic) is immaterial and hence inadmissible.

The adjudicative analysis set out in the seven immediately preceding paragraphs suffices for discussing Policy section 4(a)(i) in this case. However, the Panel considers it appropriate to also directly answer the contentions the Respondent set out in the Response Form under the heading of« Copy or Similarity ». Those contentions are as follows:

“IGC and the Domain Registrar who are the Regulators and the bodies that indicate whether domain names are available and useable both passed the usage of the said name. We paid for it and it was on line for approximately 6 to 8 months. No other company had a similar name. No other domain name was in place. These bodies rely on the rules that would give them the authority under the law to register our site. Why then does someone else have the right to come after the fact and request that we close our site?”

The answer is that such things as Policy sections 1, 2, 3, and 4 are clear: whatever may be the context (e.g. a context comprising company names per se and domain name registrations per se), the involvement of one or more persons other than a potential or actual domain name registrant (e.g. the involvement of a domain name registrar) in such things as domain name registration availability, or in domain name registration fee payment, or in actual registration of a domain name or use of that registration, does not make (i) that domain name any less “identical or confusingly similar to a trade mark or service mark in which [a potential] complainant has rights” within the meaning of that expression in Policy section 4(a)(i); or (ii) that domain name registrant any less liable to a potential complainant’s actually commencing a proceeding under the Policy.

In view of the eight immediately preceding paragraphs hereof, and especially the first seven of those paragraphs, the Administrative Panel finds that element « (i) » of Policy section 4(a) is proved to be present.

Policy Section 4(a)(ii)

By Policy section 4(c), in respect of the Contested Domain Name, « Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the Respondent's] rights or legitimate interests to the domain name for purposes of [Policy section] 4(a)(ii): (i) before any notice to [the Respondent] of the dispute, [the Respondent's] use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the domain name, even if [the Respondent] has acquired no trademark or service mark rights; or (iii) [the Respondent is] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. »

On the one hand, in effect, the Complainant’s contentions of fact, pleaded in the Complaint Form, include two main groups of contentions that relate to Policy section 4(a)(ii).

The first main group of contentions has three aspects, each aspect being as to a respective set of circumstances within the meaning of Policy section 4(c).

One aspect seemingly is as to Policy section 4(c)(i): that before any notice to the Respondent of the dispute, the Respondent did not use, and did not make demonstrable preparations to use, the Contested Domain Name or a name corresponding to the Contested Domain Name in connection with a bona fide offering of goods or services. There are eight contentions therein: (i) the Respondent is not a licensee (paragraph 23), and is a competitor (paragraph 24), of the Complainant, and for the purpose of trading on the Complainant’s goodwill both registered the Contested Domain Name (paragraph 25) and is attempting to adopt a business name confusingly similar to the Complainant’s (paragraph 19); (ii) in or about May 2001 the Complainant became aware, through one of its customers (apparently called Shark Logic) and through web pages dated 18 May 2001, that the Contested Domain Name was being used to link to a web site containing advertising for the Respondent but not referring to « HURONIA PRECISION PLASTICS » (paragraphs 11, 12, 24); (iii) on 29 May 2001 the Complainant’s lawyers sent a cease and desist letter to the Respondent which letter demanded the cessation of use, and delivery up, of the Contested Domain Name (paragraph 13); (iv) the 29 May 2001 cease and desist letter was received by the Respondent (paragraph 16); (v) on 12 June 2001 a business name registration was obtained under the laws of Ontario, regarding « Huronia Plastics Products », pleaded in the Complaint Form as listing what the Panel takes judicial notice of as being the same individual, and the same address, as in the business name regsitration refered to above in connection with Policy section 4(a)(i) (paragraph 17); (vi) as the Respondent had not responded to the Complainant’s demands, reminders were sent to the Respondent such as by letters by the Complainant dated 15 June, and 28 June, 2001 (paragraph 14); (vii) since receiving the 29 May 2001 cease and desist letter, the Respondent has stopped using the Contested Domain Name as a link to the above-mentioned web site (paragraph 16); and (viii) as of 10 September 2001, there is nothing currently showing at the URL of the Contested Domain Name (paragraph 16).

Another aspect seemingly is as to Policy section 4(c)(ii): that the Respondent (as an individual, business, or other organization) has not been commonly known by the Contested Domain Name. There are two contentions therein: (i) the Contested Domain Name has not been associated with the Respondent in the past and is not currently associated with the Respondent (paragraph 19); and (ii) the business name registration « Huronia Plastics Products » was only recently effected by the Respondent and is confusingly similar to the Complainant’s mark « HURONIA PRECISION PLASTICS » (paragraph 26) which is identical to the Contested Domain Name (paragraph 27), so the Respondent does not thereby have any legitimate business name or business interests in the Contested Domain Name (paragraph 28).

The further aspect seemingly is as to Policy section 4(c)(iii): that the Respondent is not making a legitimate noncommercial or fair use of the Contested Domain Name, without intent for commercial gain to misleadingly divert consumers. There is one contention therein: as of 10 September 2001 there is nothing currently showing at the URL of the Contested Domain Name (paragraph 16) and the prior use of the Contested Domain Name to link to a web site containing advertising for the Respondent but not referring to « HURONIA PRECISION PLASTICS » was simply a means by which internet traffic was diverted to those web pages for the Respondent’s competing products and services (paragraph 24).

The second main goup of contentions is that each of the following Complaint Annexes contains evidence that is rationally probative of the proposition stated herewith: (i) Annex G, that those web pages show said link, and said advertising, and said lack of reference to « HURONIA PRECISION PLASTICS » occurred; (ii) Annex H, that a letter from that customer so made the Complainant aware; (iii) Annex I, that a copy of said cease and desist letter proves the contents of said cease and desist letter and that it was sent to and received by the Respondent; (iv) Annex M, that said business name registration occurred; and (v) Annex J, that a copy of each said reminder letter proves the contents of each said reminder letter and that it was sent to and received by the Respondent.

On the other hand, in effect, the Respondent’s contentions of fact, pleaded in the Response Form, do not appear to dispute (or, phrased differently, do not appear to « put in issue ») the Complainant’s contentions of fact set out in the four immediately preceeding paragraphs hereof except in the sense and to the extent of the two ways set out in this paragraph. Firstly, there is the contention discussed in the fifth paragraph of the above discussion of Policy section 4(a)(i)), of not being a competitor of the Complainant. Secondly, there is the following contention:

« The Respondent does not need to trade on the reputation or goodwill of any business as he has been established in the industry since 1984 and has more than his fair share of the market place. As the principal party is at the point of semi-retirement he is realigning his existing holdings to affect a smooth transition to other family members and as such, in the future, the company name will reflect the location and business it carried out. ie huronia (location) plastics products (produces). »

As for the first contention, however, by analogy with the reasons set out in the fifth paragraph of the above discussion of Policy section 4(a)(i), the pleadings establish that there is actually no issue as to whether the Complainant and the Respondent are in competition with one another of a type and sufficient degree for their behavior to be subject to at least Policy section 4(a)(ii) as resorted to in this case. As for the second contention, it is not a denial of any of what is contended by the Respondent; it is a contention of lack of need, yet need is not contended by the Respondent. Specifically, the Respondent’s contention is (i) that the Respondent “does not need” (emphasis added) to do some of what is contended against the Respondent in so far as what is contended against the Respondent amounts to the Respondent “trad[ing] on the reputation or goodwill of any business”; and (ii) of further facts as to the Respondent’s need for doing what the Complainant contended the Respondent did. Both parts (“i” and “ii”) of that second contention take place in the context of the admissions indicated by the above discussion on Policy section 4(a)(i), such as that (i) the Complainant established a solid reputation and significant goodwill in the automotive industry in Canada and the United States, and in Canada generally, and that said reputation and goodwill have respectively been established through or embodied in Huronia-area awards and Huronia-area media coverage since January 1999 and in the Complainant’s common-law trade mark « HURONIA PRECISION PLASTICS » since 1998; and (ii) both the Complainant and the Respondent are situated in Northern Ontario and well aware of one another. Moreover, (albeit under the Response Form heading of « Copy or Similarity ») the Respondent admits that it had the Contested Domain Name « on line for approximately 6 to 8 months », which is not to say however that doing so was a bona fide or fair or legitimate use of it or that the Respondent was commonly known by it.

In view of the eight immediately preceding paragraphs hereof, the Panel once again (i) notes Rule 10(b); and (ii) relies on the passages from Hohfeld and Delisle quoted above for the proposition that evidence on an undisputed allegation of fact is immaterial and hence inadmissible.

In view of the nine immediately preceding paragraphs hereof, the Panel makes two findings. Firstly, for the purposes of this proceeding the Respondent admits the facts contended in the third through sixth paragraphs of this discussion on Policy section 4(a)(ii). Secondly, in relation to establishing those facts, the evidence contained in Complaint Annexes G, H, I, M, and J is immaterial and hence inadmissible.

The Administrative Panel finds that, based on the Panel’s evaluation of all evidence presented, no Policy section 4(c) circumstances are proved as existing. Rather, the Administrative Panel finds quite the opposite proved (i.e. the opposite of each of Policy sections 4(c)(i), 4(c)(ii) and 4(c)(iii)) and hence finds that « [the Respondent has] no rights or legitimate interests in respect of the [Contested Domain Name] » within the meaning of that expression in Policy section 4(a)(ii).

The adjudicative analysis set out in the eleven immediately preceding paragraphs suffices for discussing Policy section 4(a)(ii) in this case. However, the Panel considers it appropriate to also directly answer the contentions the Respondent set out in the Response Form under the heading of « Illegitimacy ». Those contentions were set out above in part, in discussing Policy section 4(a)(i), and are set out here in full as follows:

“Upon a legitimate search through a search house it was discovered that no trade name nor trade-mark was found to be registered to the complainant or anyone else nor was there any pending and subsequently registration took place in good faith.”

The Panel believes these reasons for decision illustrate that a domain name registrant does not have « rights or legitimate interests in respect of [a] domain name » (within the meaning of that expression in Policy section 4(a)(ii)) by there having been a search (whether through a search house or otherwise) done by or on behalf of that person while they were a prospective domain name registrant, that registrant’s purported « good faith » notwithstanding.

In view of the twelve immediately preceding paragraphs, and especially the first eleven of those paragraphs, the Administrative Panel finds that element « (ii) » of Policy section 4(a) is proved to be present.

Policy Section 4(a)(iii)

By Policy section 4(b), in respect of the Contested Domain Name, « For the purposes of [Policy section] 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:  (i) circumstances indicating that [the Respondent has] registered or [the Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the [C]omplainant who is the owner of the trademark or service mark or to a competitor of [the Complainant], for valuable consideration in excess of [the Respondent's] 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 [the Respondent's] web site or other on-line location, by creating a likelihood of confusion with the [C]omplainant's mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent's] web site or location or of a product or service on [the Respondent's] web site or location. »

On the one hand, in effect, the Complainant’s contentions of fact, pleaded in the Complaint Form, include two main groups of contentions that relate to Policy section 4(a)(iii).

On the other hand, the Respondent’s contentions that are within the scope of this proceeding have been set out above in the discussions of Policy sections 4(a)(i) and 4(a)(ii). With one exception, they dispute the Complainant’s contentions under Policy section 4(a)(iii) only to the same extent, and in the same sense, they disputed the Complainant’s contentions under either of Policy sections 4(a)(i) and 4(a)(ii). The exception is as to the use of the expression « good faith » as quoted in the second last paragraph of the above discussion of Policy section 4(a)(ii). However, as will be readilly apparent from the following four paragraphs, for the Respondent’s response to those paragraphs to basically have been to contend the words « good faith », does not result in the Respondent having actually put in issue the Complainant’s contentions of « bad faith ». Moreover, the Panel finds by judicial inference that the Respondent’s date of receipt of the 29 May 2001 cease and desist letter was prior to the 12 June 2001 business name registration.

The first main group of contentions has several aspects, each aspect being as to a respective set of circumstances within the meaning of Policy section 4(b). (Policy section 4(b)(ii) facts do not appear to be contended by the Complainant.)

One aspect seemingly is as to Policy section 4(b)(iv) and, as to its second through fourth components, the residual aspect of the preamble of 4(b). It is set out in Complaint Form paragraphs 29, 30, 31, and 33 to the following effect: (i) on information and belief, the Respondent registered the Contested Domain Name in an attempt to attract, for commercial gain, Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s common-law trade-mark “HURONIA PRECISION PLASTICS” as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site, products, and services (paragraph 29); (ii) the deliberate registration of the Contested Domain Name, by a direct competitor of the Complainant, which domain name is so closely associated with the Complainant’s common-law trade mark reveals the dishonest and bad faith nature of the Respondent’s activities (paragraph 30); (iii) the Respondent has no relation whatsoever to that common-law trade mark and the obvious connection between the Contested Domain Name and that common-law trade mark shifts the onus onto the Registrant to show that it has a legitimate interest and that there is a lack of bad faith (paragraph 31); and (iv) the Respondent is also not known by the Contested Domain Name and is not making a legitimate or fair use of it, which circumstances, taken together, permit the Panel to determine that the Contested Domain Name has been registered in bad faith and is being used in bad faith by the Respondent (paragraph 33).

Another aspect seemingly is as to Policy sections 4(b)(i) and (iii) and is set out in the following extracts from Complaint Form paragraphs 15 and 32 (to each of which underlining has been added by the Panel):

“15. On July 9, 2001, someone with the initials M.V. sent an e-mail response requesting until mid August to respond. A further e-mail reminder was sent on August 16, 2001, demanding a response by August 24, 2001. Finally, a response was received dated August 20, 2001, stating that ‘the huroniaprecisionplastics.com name was inadvertently attached to the LDI web routings’, and adding ‘Should your client wish to purchase the huroniaprecisionplastics.com domain name, we will entertain offers for same with some reservations, in that your client’s name is close to one of the names which is under consideration for one of my new companies- Huronia Plastics Products Limited.’ The Respondent then demanded that the Complainant cease using the letters HPP, stating that ‘we are in the process of patenting the HPP logo for my companies.’ The letter is signed C Van Den Heuvel. … “ and

“32. … bad faith can be inferred from circumstantial evidence, including the fact that the domain name has not been used in commerce by the Respondent … [and] … it is manifestly fair to infer that the real business of the Respondent is to acquire the domain name and sell it for a profit to the Complainant, or to intentionally disrupt Complainant’s business and divert traffic to the Respondent.”

The Panel finds that the Complainant, by contending the text quoted within paragraph 15, was contending that the quoted statements were made though not necessarily that they were true.

The second main group of contentions is that each of the following Complaint Annexes contains evidence that is rationally probative of the proposition stated herewith:(i) Annexes K and L, that the said e-mails were exchanged and that a copy of each is proof of  that exchange and of the contents thereof; (ii) Annex P, that there has been an arbitral panel’s stated reasons for decision in which « bad faith » within the meaning of that expression in Policy section 4(b) was inferred from circumstantial evidence including the fact that the domain name had not been used in commerce by the respondent; and (iii) Annex Q, that there has been an arbitral panel’s stated reasons for decision in which it was found that a domain name has been registered in bad faith, and is being used in bad faith, by a respondent if that respondent is also not known by the domain name and is not making a legitimate or fair use of the domain name.

In view of the seven immediately preceding paragraphs hereof, the Panel once again (i) notes Rule 10(b); and (ii) relies on the passages from Hohfeld and Delisle quoted above for the proposition that evidence on an undisputed allegation of fact is immaterial and hence inadmissible.

In view of the eight immediately preceding paragraphs hereof, the Panel makes two findings. Firstly, for the purposes of this proceeding the Respondent admits the facts contended in the second, fourth, fifth, and sixth paragraphs thereof. Secondly, in relation to establishing those facts, the evidence contained in Complaint Annexes K, L, P, and Q is immaterial and hence inadmissible.

Furthermore, Policy section 4(b)(i) and 4(b)(iii) circumstances especially appear to be present in view of the « reservations » referred to in the e-mail letter quoted from within Complaint Form paragraph 15: the Respondent (i) asserted, seemingly without valid legal basis, that the Complainant’s behaviour infringes the Respondent’s legal interests; and (ii) offered to transfer the registration of the Contested Domain Name to the Complainant at least partly in exchange for the valuable consideration of  the Complainant forebearing from that allegedly infringing behaviour, the value of which forbeance appears to be in excess of the Respondent’s out-of-pocket costs directly related to the Contested Domain Name.

In view of the ten immediately preceding paragraphs, the Administrative Panel finds that element "(iii)" of Policy section 4(a) is proved to be present.

BASES FOR THE ADMINISTRATIVE PANEL'S DECISION

The Administrative Panel considered the Parties’ contentions concerning « huroniaplastics.com » but finds them to be beyond the scope of this proceeding.

There was an administrative proceeding conducted under the Policy and to which the Respondent was a party, wherein the following was found as a basis for the Administrative Panel to require the Registrar of the Contested Domain Name to effect the remedy sought in section 4(d) of the Complaint Form: it has been proven that the three elements "(i)" "(ii)" and "(iii)" of  Policy section 4(a) are present.

THE ADMINISTRATIVE PANEL'S MAKING ITS DECISION

By Rule 15(d) "The Panel's decision shall be in writing, provide the reasons on which it is based, indicate the date on which it is rendered and identify the name(s) of the Panelist(s)."  More particularly, (i) by Supplemental Rule 15(a) "The Decision of the panel shall be drafted on the appropriate form ..."; and (ii) by the Provider's forms, which include a form used to draft this decision, the decision is to be signed and include the "date and place of the decision".

6. Conclusions

By Policy section 4(i) and the Notes, in respect of the Contested Domain Name, "The remedies available to [the Complainant] pursuant to [this] proceeding before [the] Administrative Panel shall be limited to requiring the cancellation of [the Respondent's] domain name or the transfer of [the Respondent's] domain name registration to the [C]omplainant." Therefore, based on the reasons provided herein, and in view particularly of part 5 hereof, the Administrative Panel hereby makes and communicates its decision on the Complaint to the Clerk's office of the Provider, which decision is as follows: the Administrative Panel requires the Registrar for the Contested Domain Name to transfer, to the Complainant, the registration of the Contested Domain Name.

7. Signature

In accordance with all of the above, this decision is signed this 5 November 2001 at Ottawa, Ontario, Canada by (s) Rodney C. Kyle.