Domain name - Domain name dispute resolution policy - U.S. Service mark - U.S. Trademark - Identical - Confusingly similar -Good faith use - undeveloped site - transfer the domain name - excess of out-of-pocket costs - bona fide intent.
 
The Complaint is based upon the trademark LIVE IN IT, U.S. Service Mark, which is used in connection with the retail sale of clothing. Complainant’s use of the mark has been continuous since October 31, 1997.  Following registration of the LIVE IN IT trademark, Complainant sought to register its mark as a domain name on January 14, 2000, at which time it learned of Respondent’s domain name registration of September 20, 1999. 

HELD, Name Not Transferred to Complainant.

Respondent has rights or legitimate interests in the domain name. Respondent has shown demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute. The fact that Respondent has not yet actually made any use of the domain name does not undermine the fact that Respondent has shown demonstrable preparations to use the domain name.  Although the failure to develop a site over a lengthy period of time raises the inference that Respondent has no bona fide intent to use the name, the Panel does not think that ten months is sufficient to raise the inference. 

Although Respondent offered to transfer the domain name to Complainant for a sum far in excess of out-of-pocket costs related to the domain name, Complainant has failed to show that Respondent registered the domain name primarily for the purpose of selling the domain name.

Policies referred to

ICANN Uniform Domain Name Dispute Policy 

Registration Agreements referred to

Network Solutions Service Agreement Version 4.0

Panel Decision referred to

Meredith Corp. v. City Home, Inc., D2000-0223 (WIPO May 18, 2000).
Mondich and Amer. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000).

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Charles K. McCotter, Jr. ,Panelist: -

PARTIES
The Complainant is Casual Corner Group, Inc.,100 Phoenix Avenue, Enfield CT 06082. The Respondent is Neil Young, 888 Douglas Street, San Francisco, CA 94113-3607.

REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is"LIVEINIT.COM",registered with Network Solutions, Inc. ("NSI") on September 20, 1999.

PANELIST
Charles K. McCotter, Jr. as Panelist.

PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum")on 07/05/2000. 
On 07/11/2000, NSI confirmed by e-mail to The Forum that the domain name "LIVEINIT.COM"is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 4.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNíís UDRP.
On 07/11/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 07/31/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondentíís registration as technical, administrative and billing contacts by email. 
On July 31,2000, pursuant to Complainantíís request to have the dispute decided by a Single Member panel, The Forum appointed Charles K. McCotter, Jr. as Panelist.

RELIEF SOUGHT
The Complainant requests that the domain name be transferred from the Respondent to the Complainant. 

PARTIE'S CONTENTIONS
A. Complainant
The Complainant contends that the domain name, LIVEINIT.COM, is identical to its trademark, LIVE IN IT; that Respondent does not have rights or legitimate interests in respect to the domain name; and that Respondent has registered and used the domain name in bad faith based on Respondentíís unwillingness to transfer the domain name to Complainant, non-use of the domain name, and willingness to sell the domain name for more than his out-of-pocket expenses.

B. Respondent
The Respondent contends that he has not used and has no intention of using the domain name in a manner which is likely to cause confusion or otherwise infringe on Complainantíís trademark; that he has a legitimate interest in the domain name because he registered the domain name in connection with his work in the field of developing interactive, virtual entertainment worlds; and that he did not register the domain name in bad faith. 

FINDINGS
1. The Complaint is based upon the trademark LIVE IN IT, U.S. Service Mark Registration No.2,307,766, registered January 11, 2000 which is used in connection with the retail sale of clothing. Complainant's use of the mark has been continuous since October 31, 1997. Complainant filed its trademark application on July 14, 1997. Through the use of its mark in connection with the retail sale of clothing, Complainant has acquired substantial good will throughout the United States.
2. Following registration of the LIVE IN IT trademark, Complainant sought to register its mark as a domain name on January 14, 2000, at which time it learned of Respondentíís domain name registration of September 20, 1999. Complainantíís representative sent Respondent a "blind" email offer to purchase the domain name on January 17, 2000. Respondent replied that he would not sell the domain name for less than $25,000. On May 25, 2000,Complainantíís representative sent Respondent a letter giving him notice of trademark infringement and demanded that the domain name be transferred to Complainant. Respondentíís attorney responded by letter of June 5, 2000, refusing the demand to transfer the domain name. 
3. In the June 5, 2000, letter, Respondentíís attorney states that the Respondent registered the domain name in connection with a line of interactive entertainment products currently in development and describes Respondentíís considerable involvement in the interactive entertainment industry and development of "virtual reality" entertainment. Respondentíís attorney stated: "His registration of the domain ëëliveinit.comíí was done for the sole purpose of reserving the name for use in conjunction with one of his newly created virtual worlds, where a player can ëëlive in itíí. Counsel also contended that Respondentíís intended use of the mark would be unlikely to cause confusion among consumers since the use of the mark and the intended markets would be different. Complainant sells clothing for young women. The Respondentíís intended use of the mark is in connection with interactive entertainment which would likely target 15 to 35 year old males. Nevertheless, Respondentíís attorney states: "...Mr. Young has at this moment yet to do anything with the domain name...." and concludes his letter "Given the fact that he has yet to implement any of his plans with regard to the ëëliveinit.comíí domain, Mr. Young remains open to discussing this matter further. Mr. Young does not, however, believe that he is under any obligation to simply grant it to you for free."

DISCUSSION
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") directs that the Complainant must prove each of the following three elements in order to demonstrate claims that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar
Respondent contends that he has not used nor intends on using the domain name in a manner likely to cause confusion or to infringe on Complainantíís trademark. The domain name is identical to Complainantíís trademark; therefore, it is unnecessary to determine whether the domain name is confusingly similar in order to satisfy the first element. Furthermore, the question of infringement is not within the scope of this arbitration panelíís review.

Rights or Legitimate Interests
Respondent has rights or legitimate interests in the domain name. Respondent has shown demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute. The fact that Respondent has not yet actually made any use of the domain name does not undermine the fact that Respondent has shown demonstrable preparations to use the domain name. The failure to develop a site over a lengthy period of time raises the inference that the respondent has no bona fide intent to use the name. See Mondich and Amer. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (failure to develop a site in two years raises the inference of lack of bona fide intent to use the name). About ten months have elapsed since Respondent registered the domain name, therefore not enough time has passed to raise the inference of lack bona fide intent. See Meredith Corp. v. City Home, Inc., D2000-0223 (WIPO May 18, 2000)(non-use of domain name for eight months is reasonable time to engage in research and development).

Bad Faith
Complainant has failed to show that Respondent registered or used the domain name in bad faith. Although Respondent offered to transfer the domain name to the Complainant for a sum far in excess of out-of-pocket costs related to the domain name, Complainant has failed to show that Respondent registered the domain name primarily for the purpose of selling the domain name. Respondent registered the domain name in connection with a line of interactive entertainment products currently in development.

DECISION
Based upon the above findings and conclusions, I find in favor of Respondent. Therefore, the relief requested by Complainant pursuant to Paragraph 4.i of the Policy is Denied. Respondent shall not be required to transfer to Complainant the domain name "LIVEINIT.COM". Charles K. McCotter,
Panelist