Domain name - Domain name dispute resolution policy - U.S. Trademark - Identical - Confusingly similar - Bad faith registration - Bad faith use - Disrupting business of a competitor - Commercial gain - First Amendment protection - Freedom of speech - Cyber-bullying.

Complainant was registrant of United States trademarks COMPUSA and CompUSA.com.  Complainant has also registered the domain name CompUSA.com.  Respondent registered similar domain names BANCOMPUSA.COM and STOPCOMPUSA.COM.

Held, Names Not Cancelled

The Panelist finds that the marks and domain names are not confusingly similar and are certainly not identical.  No one could confuse “COMPUSA,” or anyone of the registered trademarks, and “STOPCOMPUSA.COM” and “BANCOMPUSA.COM.” 

Respondent has a legitimate, non-commercial interest in the domain names protected under the First Amendment.  His right to offer criticism of the goods and services provided by Complainant are as legitimate as any commercial activity.

Respondent has not acted in bad faith.  Respondent has registered the domain names for the purpose of selling the name to Complainant or a competitor; he has not registered the names to prevent the Complainant from registering the names; he has not registered the names for the purpose of “disrupting the business of a competitor.”

Policies referred to
Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999

Cases referred to
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Panel decisions referred to
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Ayers, Panelist:
PARTIES
The Complainant is Compusa Management Company, Dallas, TX, USA ("Complainant"). The Respondent is Customized Computer Training, Atlanta, GA, USA ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME(s) 
The domain names at issue are "STOPCOMPUSA.COM" and "BANCOMPUSA.COM", registered with Register.com.
PANELIST(s) 
The Panelist certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as the panelist in this proceeding.
R. Glen Ayers was selected as Panelist.

PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 06/29/2000; The Forum received a hard copy of the Complaint on 07/05/2000. 
On 07/05/2000, Register.com confirmed by e-mail to The Forum that the domain names "STOPCOMPUSA.COM" and "BANCOMPUSA.COM" are registered with Register.com and that the Respondent is the current registrant of the name. 
On 07/06/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 07/26/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by e-mail. 
Respondent timely filed his Response.
On August 9,2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed R. Glen Ayers as Panelist.

RELIEF SOUGHT
The Complainant requests that the domain names be canceled.

PARTIES’ CONTENTIONS
A. Complainant
The Complainant contends that the registration and use by Respondent of the domain names "BANCOMPUSA.COM" and "STOPCOMPUSA.COM" violate the ICANN Uniform Domain Dispute Resolution Policy provisons set forth at Paragraph 4(a) of the Policy. It alleges: 
that these domain names are"(i) ... identical or confusingly similar ..." to trademarks held by Complainant (Complaint also holds the trademark "CompUSA.com" and has registered that mark as a domain name);
that Respondent has "(ii)... no rights or legitimate interests in respect of the domain name;" and,
that Respondent has "(iii) ... registered and ... used" the domain names "in bad faith."
the Complainant certainly offers ample evidence of its ownership and registration of trade marks including the COMPUSA ® mark.
However, Complainant has offered no evidence of the violation by Respondent of the provisions of Paragraph 4 other than the following simple assertions:
(i) the marks held by Complainant and the Respondent’s two domain names are "nearly identical" - that is, Complainant asserts that the mark "COMPUSA" and the domain names "BANCOMPUSA.COM" and "STOPCOMPUSA.COM" are almost identical;
(ii) the Respondent cannot have legitimate interests in the domain names because of the near identity with the trademark or marks of Complainant; and,
(iii) the use by Respondent of the domain names is in bad faith because he is "disrupting the business" of Complaint and has registered the names for the purpose of disrupting the business of Complainant.
B. Respondent
Respondent, of course, points out that the domain names and the trademarks are not in any way identical or confusing.
He also asserts that he is not in any way using the mark or marks of Complainant in a commercial context and that his use is protected speech under the First Amendment to the United States Constitution. (Were this a Lanham Act matter, the Panelist suspects that this defense to the registration and use of the two domain names would be dispositive.) 
Respondent goes on to point out that Complainant has offered no evidence that he has disrupted the business of the Complainant.
His other factual contentions, all concerning his long history with Complainant’s retail operations, his dissatisfaction with Complainant’s business practices, and the like, are interesting but not germane except to the extent those contentions clearly demonstrate that Respondent has not acted in "bad faith" as that term is defined at Paragraph (4) (b) (i)-(iv) of the Policies.

FINDINGS
Complainant has failed to show that any of the three elements of Policy Paragraph have been violated. First, there is absolutely no confusion or similarity, much less identity, between the domain names and the trademarks held by Complainant. No one could confuse "COMPUSA", or anyone of the registered trademarks, and "STOPCOMPUSA.COM" and "BANCOMPUSA.COM".
Complainant has also failed to show that Respondent has no rights or legitimate interests in the domain names. Respondent’s rights clearly exist under the First Amendment. His right to offer criticism of the goods and services provided by Complainant are as legitimate as any commercial activity.
Finally, there is simply no evidence of "bad faith" as that term is defined at Policy Paragraph 4(b). Respondent has not registered the domain names for the the purpose of selling the name to the Complainant or a competitor; he has not registered the names to prevent the Complainant from registering the names; he has not registered the names for the purpose of "disrupting the business of a competitor" - yes, he has registered the names for the purpose of disrupting the business of Complainant, but he is not a competitor. He is a commentator, if anything. Lastly, Respondent has not attempted to attract internet users "for commercial gain" by use of a confusing domain name. There is certainly no commercial use here and no confusion concerning the Respondent’s purposes.

DISCUSSION 
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; 
(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
The Panelist finds that the marks and domain names are not confusingly similar and are certainly not identical.
Rights or Legitimate Interests
Respondent has a legitimate, non-commercial interest in the domain names.
Registration and Use in Bad Faith
Respondent has not acted in bad faith as that term is used at Paragraph 4 (a) (iii) and (b) (i)-(iv).
After reading the pleadings, the Panelist is left with a bad taste. Here, a large company, faced with criticism from an individual, has attempted to use this process and procedure to stifle that criticism. If the actions and conduct of Respondent are wrongful, then Complainant has access to the courts of law, where the truthfulness of the allegations made by Respondent can be challenged. Use of this forum by Complainant in this context is inappropriate and constitutes "cyber-bullying." 

DECISION
The relief requested by Complainant is denied; the domain names are not to be cancelled.
  R. Glen Ayers
Dated: August 17, 2000