Grundfos A/S v. Texas International Property Associates
Case No. D2007-1448
1. The Parties
The Complainant is Grundfos A/S, Denmark, represented by Delacour Law Firm, Denmark.
The Respondent is Texas International Property Associates, United States of America, represented by Joseph Dauben, United States of America.
2. The Domain Name and Registrar
The disputed domain name <groundfos.com> (the “Domain Name”) is registered with Compana LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2007. On October 3, 2007, the Center transmitted by email to Compana LLC a request for registrar verification in connection with the Domain Name. On October 24, 2007, Compana LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 2, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was November 22, 2007. The Response was filed with the Center on November 21, 2007. The same day an Amended Response was filed (correcting an incorrect Case No. reference contained in the original Response).
The Center appointed Warwick Smith as the sole panelist in this matter on November 30, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On December 13, 2007, the day before the decision in this case was due, the Complainant submitted a “supplementary complaint”. The Respondent then sent an email to the Center pointing out that the Rules do not provide for supplemental filings. In the event of the Panel deciding to admit the supplemental filing, the Respondent requested the right to file an additional response.
4. Factual Background
The Complainant
The Complainant is part of the Grundfos group, which is a large manufacturing group based in Denmark. Its main product is circular water pumps, of which it manufactures more than 10 million per year. It has approximately 15,000 employees and in 2006 it had a net turnover of more than 2 billion Euros. It is represented by more than 50 companies around the world, including in the United States of America, where its representative is Grundfos Pumps Corporation USA.
The Complainant holds registrations for the trade mark GRUNDFOS in a number of countries, including Denmark and the United States of America. The Danish registration (for pumps) has been in effect since 1967, and the United States registration has been in effect since 1968.
The Complainant has produced an article from the January 20, 2003 edition of the international Magazine “Fortune”, which listed the Complainant as one of “10 great companies to work for”. A Google search run on September 26, 2007, on the expression “grundfos”, produced more than 3 million hits. The Complainant has produced a printout of the first 10 hits, and all appear to relate to the Complainant or its business.
The Respondent and the Domain Name
The Domain Name was first registered on February 10, 2005. It points to a website (“the Respondent’s website”) which contains numerous hyperlinks to other sites that offer products for sale. The Respondent does not dispute that these products include pumps originating from manufacturers other than the Complainant.
When the Panel visited the Respondent’s website, he noted that it was prominently headed “Welcome to grundfos.com”. Immediately below that heading were the words: “For resources and information on Grundfos pumps and Grundfos pump”. Under the heading “Related Searches” on the left hand side of the screen, there were the following click-on links:
“Grundfos pumps
Grundfos pump
Grundfos
Grundfos circulating pumps
Pump
Booster Pumps
Metering pump
Grundfos Submersible Pump
Grundfos Pump Prices
Pump manufacturer”
Clicking on any of the above links took the browser to a sub-page containing sponsored links to various third party websites. When the Panel clicked on “Grundfos pump” he was taken to a sub-page containing links to five different third party websites (which were all in the Australian “.com.au” c.c.t.l.d. – presumably because of the Panel’s location in neighboring New Zealand). Four of the five sponsored links were related to pumps of one sort or another, but only one (a link to the Australian eBay website at “www.eBay.com.au”, advertising a “bargain” Grundfos pump) appeared to relate to the Complainant. At least one appeared to be a link to the website of an Australian pump manufacturer who is apparently unrelated to the Complainant (Dynamic Pump Solutions).
Prominent in the center of the home page, there was a picture of a heater (of the “hot-water circulation” type). There was a smaller picture of what appears to be a domestic heater, at the top left of the home page.
There were more click-on links at the foot of the home page on the Respondent’s website. Nearly all were related specifically to pumps of one sort or another, but five of the links were “Energy”, “Heating”, “Effluent”, “Boiler” and “Water”.
For resources and information on Grundfos pumps and Grundfos pump”.
The “Contact Us” subpage did not contain anything to identify the owner or operator of the Respondent’s website (it simply provided space for the site visitor to identify himself or herself, and to submit a message).
The Complainant produced a screenshot from the Respondent’s website, taken on September 26, 2007. It had the same header, and many of the same “Related Search” categories, as appeared on the Respondent’s Website when it was visited by the Panel. The majority of the click-on links on the Respondent’s website on September 26 were concerned with pumps of one kind or another, and many of them specifically referred to the Complainant’s pumps.
The pictures of heaters did not appear in the September 26 screenshot. The only picture was a picture of two large “propellers”, of the kind used in wind generation of electricity.
The Respondent says in its Amended Response that it operates a legitimate business of targeting advertising searches, in conjunction with the industry leaders, Google and Yahoo! The hyperlinks are provided pursuant to Yahoo’s or Google’s terms, and are triggered by search requests entered by computer users.
The Respondent says that it is the registrant of thousands of domain names, which consist of electronically registered generic words. It says that it registered the Domain Name because it believed the Domain Name consisted of a generic and descriptive term to which no party had exclusive rights.
The Respondent says that it had no actual knowledge of the Complainant when it registered the Domain Name.
The Respondent acknowledges that it has been involved (as Respondent) in numerous decisions under the Policy in the calendar year 2007.
5. Parties’ Contentions
A. Complainant
The Complainant contends:
1. The Domain Name is confusingly similar to a trade mark or service mark in which the Complainant has rights:
1.1 The Complainant is the owner of the GRUNDFOS mark.
1.2 The Complainant’s GRUNDFOS mark must be characterized as “very well-known”.
1.3 The Domain Name differs from the Complainant’s GRUNDFOS mark only by the addition of the letter “o”. That is insufficient to avoid a likelihood of confusion between the Domain Name and the trade mark, as the visual and phonetic resemblance is intact. Top level code suffixes (such as .com and .net) do not affect the relevant test of “identical or confusingly similar”.
2. The Respondent has no rights or legitimate interests in respect of the Domain Name:
2.1 The Respondent’s activities and the website to which the Domain Name points indicate no facts or evidence supporting any claim the Respondent might make to any rights or legitimate interests in the Domain Name.
2.2 The Respondent’s reason for registering the Domain Name must be considered to be to profit on the sale of sponsored links, by using the Domain Name to attract Internet users to the website at the Domain Name (by creating a likelihood of confusion with the Complaint’s GRUNDFOS mark, as to the source, sponsorship, affiliation, or endorsement of that website and the products marketed through it). That is bad faith registration and use under paragraph 4(b)(iv) of the Policy, and could not form the basis for any right or legitimate interest.
2.3 The Complainant has shown prima facie evidence of the absence of any rights or legitimate interests in the Domain Name by the Respondent. The burden of proof thus shifts to the Respondent to establish some right or legitimate interest in the Domain Name.
3. The Respondent has registered and is using the Domain Name in bad faith:
3.1 GRUNDFOS is a well-known trade mark.
3.2 The Respondent has registered as a domain name, a designation almost identical to the Complainant’s well-known GRUNDFOS mark.
3.3 The Respondent is using the Domain Name for commercial gain by creating a likelihood of confusion between the Complainant’s trade mark and the Domain Name, with the purpose of attracting Internet users to the website at the Domain Name and making profits on the sale of sponsored links to, among others, manufacturers of pumps other than the Complainant. In so doing the Respondent is infringing the Complainant’s trade mark rights, and its conduct constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy.
3.4 The Respondent has attempted to profit from the illegal exploitation of the goodwill and reputation related to the Complainant’s GRUNDFOS mark.
B. Respondent
The Respondent contends:
1. The Domain Name is generic and/or descriptive, and is not identical to any mark in which the Complainant has enforceable rights under the Policy:
1.1 The Domain Name is a combination of the common dictionary word “ground”, and the generic, descriptive, and commonly used acronym “fos”. Generic words in combination are themselves a generic designation.
1.2 Descriptive and generic terms provide no rights under the Policy under any circumstances, even if they are registered (citing Goldberg & Osborne v. The Advisory Board Forum Inc;
WIPO Case No. D2001-0711).
1.3 Similarity of marks or lack thereof are context-specific concepts. In the Internet context, consumers are aware that domain names for different websites are quite often similar, because of the need of language economy, and that very small differences matter (Entrepreneur Media Inc. .v Smith 279F. 3d 1135, 1147 (9th Cir. 2002), followed in 9 Squared, Inc. v. Mass Management Limited; NAF Case No FA0610000 811932).
2. The Respondent has rights and a legitimate interest in the Domain Name:
2.1 The Complainant offers no proof of this element under the Policy. It merely makes a conclusory statement that the only reason for the Respondent to have registered the Domain Name must be to profit off the Complainant.
2.2 The Complainant has been the successful complainant in 13 administrative proceedings before the Center. All but one of those proceedings has been concerned with disputed domain names beginning with “grund”. The Complainant is now reaching out to include names beginning with the generic term “ground”, starting with the Domain Name.
2.3 The Respondent operates a legitimate business of offering targeted advertising searches. This is a legal practice everywhere in the world, and is undertaken in connection with the industry leaders Google and Yahoo!
2.4 The fact that advertising revenues may be generated by the Respondent’s activity demonstrates a legitimate interest (citing GLB Servicos Interativos S.A. v. Ultimate Search Inc. (aka Ult. Search Inc),WIPO Case No. D2002-0189, Miller Brewing Company v. Yunju Hong; NAF Case No. FA0309000192732, and EastBay Corporation v. VerandaGlobal.com Inc., NAF Case No. FA0203000105983. There is nothing wrong with using a generic phrase to connect generic concepts with search keywords in order to provide advertisers with targeted customer traffic.
2.5 The Respondent, like the respondent in the Eastbay Corporation case, registered and began using the Domain Name for similar purposes, long before receiving notice of the present dispute.
2.6 The Respondent may fairly use geographic, descriptive or generic terms as a commercial domain name, regardless of whether they are Federally-registered (citing Eastbay Corporation v. VerandaGloba.com, Inc., NAF Case No. FA0203000105983, and Energy Source Inc. v. Your Energy Source, NAF Case No FA0101000096364). Common words and generic terms are legitimately subject to registration as domain names on a first come-first served basis (citing Zero International Holding GmbH & Co. v. Kommanditgesellschaft v. Beyonet Services and Stephen Urich,WIPO Case No. D2000-0161).
2.7 The Respondent registered the Domain Name because it believed the Domain Name consisted of a generic and descriptive term to which no party had exclusive rights. Where a mark is registered because of its meaning as a word or term, such use establishes a respondent’s legitimate interest. As long as domain names have been registered because of their attraction as dictionary words, and not because of their value as trade marks, a business model consisting of the registration of large numbers of dictionary words used to generate pay-per-click advertising links related to the generic nature of each word, is permitted under the Policy (citing Target Brands Inc. v. Eastwind Group; NAF Case No FA0405000267475, and the Landmark Group v. Digimedia L.P., NAF Case No. 285459).
2.8 The Respondent has no control over what terms advertisers bid on at Google or Yahoo!, and what terms appear on its website. Panels have recognized that the domain name holder is not responsible for potentially offending content where they have contracts with third parties such as Google or Yahoo! who control that content (citing Admiral Insurance Services Limited. v. Mr. AdamDicker;
WIPO Case No. D2005-0241, and Experimental Aircraft Association (EAA) v. EAA.COM, NAF Case No. 206309).
2.9 The Domain Name can be read as “Ground FOs”, which means “ground forward observation site”. The Respondent has registered other generic military-themed domain names, including <groundwars.com>, <iraqwarstories.com>, and <bloodywars.com>. Those registrations undercut any suggestion that the Domain Name was registered in bad faith.
3. The Complainant has not demonstrated that the Domain Name was registered and is being used in bad faith:
3.1 The Respondent, a company in Texas, had no actual knowledge of the Complainant, a company in Denmark. Numerous panels have recognized that mere registration without actual knowledge does not impute a finding of bad faith.
3.2 Had the Respondent searched the United States Patent and Trade Mark Office for the Complainant prior to registering the Domain Name (which it had no obligation to do), it would have found no registered mark for the terms “ground fos” or “groundfos”. The Respondent could not be expected to search around the globe for registered marks which may be similar to a domain name it was hoping to register.
3.3 Most WIPO Panels have declined to introduce a concept of constructive notice into the Policy. That is a correct approach. Both the letter and the spirit of the Policy require actual bad faith.
3.4 There is no proof that consumers and Internet users have been or are likely to be confused, or to associate the Respondent’s services with those of the Complainant. Nor is there any evidence that the Respondent selected the Domain Name to obtain a free ride upon the Complainant’s mark.
3.5 Unless a trade mark is targeted by a domain, pay-per-click revenue does not constitute evidence of bad faith registration or use (citing Terana, S.A. v. RareNames, WebReg,
WIPO Case No. D2007-0489 – “an inference of targeting may be drawn from the inherent distinctiveness of the mark in question or from the circumstance that the mark is famous or well-known”). In this case, there is no inherent distinctiveness to the generic and descriptive phrase “ground fos”. Nor has the Complainant presented any evidence that a company in Texas had any reason to know of the Complainant prior to the registration of the Domain Name (a finding by a previous Panel that the Complainant’s company name is well-known should not be accepted by the Panel – that part of the decision was not in the “Discussion and Findings” section of the decision, but in the recital of the factual background, and appears to have been cut and pasted from the Complaint (see Grundfos A/S v. Orion Web;
WIPO Case No. D2005-0618).
3.6 A complainant under the Policy must proffer evidence that demonstrates that the respondent has specifically intended to confuse consumers seeking out the complainant (see Drew Bernstein and Kill City d/b/a Lip Service v. Action Advertising, Inc;
WIPO Case No. D2000-0706, and Canned Foods, Inc. v. Ult. Search Inc, NAF Case No. FA96320, Lumena s-ka z o.o. v. Express Ventures Ltd., NAF Case No 94375, and New Jersey Divorce Center, Inc. v. iGenesis Limited, NAF Case No. 584783 – a finding of bad faith requires that there be some intentional act on the party purporting to be acting in bad faith).
3.7 The Complainant argues that the Respondent has been involved in a number of decisions under the Policy this year. The Respondent is the registrant of thousands of domain names, which consist of electronically registered generic words, such as coolwritings.com, topairguns.com, indianloves.com, dailychampion.com, etc. The Respondent is also the registrant of some “typos” of such generic terms, including bankratae.com, violns.com, topdownlod.com, and georgeousredhead.com. Merely comparing the number of complaints without considering the broader context is misleading.
3.8 The Respondent did not register the Domain Name to sell it to the Complainant, or to any other party.
6. Discussion and Findings
Procedure – Complainant’s Supplemental Filing
The Rules do not permit supplementary filings as of right. It is a matter for the Panel in each case to determine in its discretion whether a supplementary filing should be admitted. Sometimes considerations of procedural fairness require that a party should be permitted to file an additional pleading or document e.g. where a response raises relevant matters which could not reasonably have been anticipated by the complainant, or includes an allegation of reverse domain name hijacking which looks as if it might have some substance. Short of those kinds of situation, supplementary filings are often rejected by Panels dealing with Complaints under the Policy.
The Panel has looked at the Supplemental filing in this case to see if it should be admitted. In essence, it appears to be a re-run of the Complainant’s case set out in its original Complaint. It does not appear to raise any new facts or argument that the Complainant could not with reasonable diligence have included in the original Complaint. In those circumstances, the Panel is not prepared to consider the late supplemental filing.
A. General Principles under the Policy
Under Paragraph 4(a) of the Policy, the Complainant has the burden of proving the following:
(i) That the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) That the Respondents have no rights or legitimate interests in respect of the Domain Name; and
(iii) That the Domain Name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules requires the Panel to:
“… decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any Rules and principles of law that it deems applicable”.
B. Identical or Confusingly Similar
The Complainant has sufficiently proved that it is the registered proprietor of the mark GRUNDFOS, both in Denmark (with effect from June 1967) and on the Principal Register maintained by the United States Patent & Trade Mark Office. The Complainant does not claim rights in any “groundfos”, or “ground fos” mark. The Respondent has presented substantial argument that the Domain Name is comprised of two generic words, “ground” and “fos” (the latter claimed to be an acronym for “forward observation site”). The Respondent argues that the Domain Name therefore consists of two generic expressions, and that no-one can claim trade mark or service mark rights in such a combination of descriptive or generic words. The Respondent’s submission under this head misses the point. The Complainant is not claiming trade mark or service mark rights in “groundfos” or “groundfos”. It is asserting rights in its registered mark GRUNDFOS, and there is no evidence before the Panel that that mark is descriptive or generic. The Complainant is entitled to the presumption that its registered mark is valid – see para 1.1 of the Center’s online document “WIPO Overview of WIPO Panel Views on Selected UDRP Questions: 1.1: “… consensus view: if the complainant owns a registered trade mark, then it satisfies the threshold requirement of having trade mark rights. The location of the registered trade mark and the goods and/or services it is registered for are irrelevant when finding rights in a mark”.
The question, then, is simply whether the Domain Name is confusingly similar to the GRUNDFOS mark in which the Complainant clearly has rights. In the Panel’s view, it is. Visually, the Domain Name and the Complainant’s GRUNDFOS mark are almost identical – the only difference is the addition of the letter “o” in the Domain Name.
Phonetically, there would not be a great deal of difference for most speakers of the English language, between the Domain Name and the Complainant’s mark. Looking first at the second syllable, “fos”, the Respondent has produced an extract from an online dictionary of acronyms and abbreviations, showing no fewer than 57 separate meanings for “fos” as an acronym. The possible meanings range from “fabric operating system”, through “factor of safety”, “finger of suspicion”, “Florida Ornithological Society”, “follow on support”, “French onion soup”, to “funky old soul”, with numerous other possibilities in between. One such possibility is listed as “Forward Operating Site (US Military)”.
Like any combination of three letters of the alphabet, it is hardly surprising that the combination of letters “f.o.s”, having no dictionary meaning as an English word, is understood by different individuals as an acronym for different persons, things, or concepts. However, the Panel is not convinced that the majority of Internet users would recognize “fos” in the Domain Name, as having the technical American military meaning claimed by the Respondent.
Some might be familiar with “fos” as an acronym for one or more of the other 56 longer expressions listed in the online dictionary, but they would not be able to make sense of it in combination with the word “ground” (e.g. ground “fabric operating system”, or ground “French onion soup” would presumably be meaningless to those who (respectively) understood “fos” as an abbreviation for “fabric operating system”, or “French onion soup”). The Panel’s conclusion is that many Internet users would not recognize “fos” in the Domain Name (particularly in association with “ground”), as an abbreviation, or acronym, for anything. Those Internet users would likely pronounce “fos” in the Domain Name in exactly the same way as they would pronounce “fos” as it forms part of the Complainant’s GRUNDFOS mark – i.e., for those Internet users, “fos” in the Domain Name would be phonetically identical to “fos” in the Complainant’s mark.
While the expressions “ground” and “grund” may sound different to English speakers, the phonetic dissimilarity between those expressions is not sufficient to dispel the likelihood of confusion between the Domain Name as a whole and the Complainant’s GRUNDFOS mark. In the Panel’s view, the likelihood is that a significant number of Internet users would not be able to attribute any meaning at all to the expression “groundfos”. They might perhaps assume that it is related in some way to the ordinary English word “ground”, but beyond that, they would have no comprehension of the expression. However, there will be many thousands of Internet users around the world who will be familiar with the Complainant and its GRUNDFOS trade mark, and the Panel thinks it likely that many of these people will assume (because of the visual similarity, and in the absence of any other meaning they can attribute to “groundfos”) that the Domain Name is a mis-spelt, or anglicized, reference to the Complainant (or to its GRUNDFOS mark).
Having regard to the visual similarity between the Domain Name and the Complainant’s mark, the likelihood that many Internet users would pronounce “fos” in the same way in both the Domain Name and in the Complainant’s mark, and the Panel’s finding that many Internet users would be likely to assume that the Domain Name is a mis-spelling or anglicizing of the Complainant’s trade mark, the Panel is satisfied that the Domain Name is confusingly similar to the Complainant’s GRUNDFOS mark. Accordingly, the Complainant has made out its case under this part of the Policy.
C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:
(i) Before any notice to [the respondent] of the dispute, use by [the respondent] 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) Where [the respondent] (as an individual, business, or other organization) [has] been commonly known by the domain name, even if [the respondent has] acquired no trade mark or service mark rights; or
(iii) Where [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 trade mark or service mark at issue.
If the circumstances are sufficient to constitute a prima facie showing by the Complainant of absence of rights or legitimate interests in the Domain Name on the part of the Respondent, the evidentiary burden shifts to the Respondent to show, by plausible, concrete evidence, that he does have a right or a legitimate interest in the Domain Name.
“A Complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4 (a)(ii) of the UDRP”.
In this case, the Panel has found that the Domain Name is confusingly similar to the Complainant’s GRUNDFOS mark. It is apparent that the Complainant has not authorized the Respondent to use that mark, or any expression similar to it, whether in a domain name or otherwise.
There is no suggestion that the Respondent, or any business operated by it, is commonly known by the Domain Name, and nor is there any suggestion that the Respondent has been making a legitimate non-commercial or fair use of the Domain Name without intent for commercial gain. Accordingly, neither paragraph 4(c)(ii) nor paragraph 4(c)(iii) of the Policy could have any application. Those factors in combination are sufficient to establish a prima facie case that the Respondent has no right or legitimate interest in the Domain Name. The burden of proof on this part of the Policy therefore shifts to the Respondent.
That burden of proof requires the Respondent to produce credible evidence either (i) that it was using the Domain Name in connection with a bona fide offering of goods or services before it received notice of the present dispute (Paragraph 4(c)(i) of the Policy), or (ii) that it has some other basis for claiming a right or legitimate interest in the Domain Name.
The Respondent’s submissions under this part of the Policy include some criticism of the Complainant and its motives, but in the Panel’s view, those submissions do not assist – Paragraph 4(a)(ii) of the Policy is concerned solely with the Respondent and whether or not it has a right or legitimate interest in the at-issue domain name.
In essence, the Respondent’s case is that the Domain Name is descriptive or generic, and that it was perfectly legitimate for the Respondent to register and use the Domain Name in the course of its business of offering targeted advertising searches, using the Google and Yahoo! systems. The Respondent submits that it registered the Domain Name simply because of its attractiveness as a common or descriptive expression, and not because of its value as a trade mark, and that using dictionary words or descriptive expressions in that manner to generate pay-per-click advertising links related to the generic nature of such an expression, is permissible under the Policy. The Respondent says that it registered (and had been using) the Domain Name for such purposes, long before it received notice of the present dispute. It submits that that is sufficient to establish a legitimate interest in the Domain Name under Paragraph 4(c)(i) of the Policy.
In support of its contention that the Domain Name is descriptive or generic, the Respondent argues that the Domain Name “can be read as “Ground FOs”, which means “ground forward observation site”“. Apparently in an attempt to persuade the Panel that the Domain Name was in fact registered with the intention that Internet users would give it that meaning, the Respondent adds that it has registered other generic military-themed domain names (including <bloodywars.com> and <iraqwarstories.com>).
The Respondent acknowledges that had it been deliberately targeting the Complainant’s trade mark (as opposed to selecting the Domain Name because of its attractiveness as a combination of ordinary dictionary words or expressions), a finding of bad faith registration and use might be appropriate. It submits that while an influence of “targeting” may be drawn from the inherent distinctiveness of a complainant’s mark, or from the circumstance that a mark is famous or well-known (citing Terana, S.A v. RareNames, WebReg;
WIPO Case No. D2007-0489), neither of those circumstances exist in this case.
The Panel has carefully considered the Respondent’s submissions, but is not persuaded that the Respondent has been using the Domain Name in connection with a bona fide offering of goods or services. The Panel has come to that view for the following reasons:
Facts Relevant to the Legitimate Interest Claim
1. The Respondent argues that “groundfos” is a descriptive, or generic expression. The Respondent puts forward the meaning: “ground forward observation site” for that expression. But the online dictionary of acronyms and abbreviations which the Respondent referred to, does not list “forward observation site” as one of the expressions for which “fos” is used as an acronym or abbreviation. The two closest expressions included in the extract from the online dictionary, appear to be “Forward Observer Software/System”, and “Forward Operating Site (US military)” (the Panel’s emphasis in each case). Nor did the Panel find any reference to “fos”, or “groundfos” in the New Shorter Oxford English Dictionary or the Shorter Oxford English Dictionary (Second Edition). (The latter dictionary lists “FO” as an abbreviation for “Flying Officer”, or (historically) “Foreign Office”. It also lists “fo” as an abbreviation for “Folio”, but does not appear to contain any listing for “groundfos”, or “ground fos”.) Nor could the Panel find any reference to “ground fos” in Webster’s Online Dictionary, or in Merriam-Webster’s Online Dictionary.
The Respondent did produce extracts from two documents in which the expression “ground FO” has been used in the plural form as “ground FOs”. Both were extracts from websites dealing with military topics, and in particular the operations of observers engaged in acquiring or pinpointing targets for artillery or other forms of military attack. Neither document makes the meaning of “ground FO” clear, but from the respective contexts, it appears that the expression was being used to denote a “ground forward observer”. The use of the lower case “s” in these two articles suggests that the precise acronym used in these articles, is “FO”, and not “FOS”.
The foregoing is sufficient to leave the Panel in considerable doubt that “groundfos” can be regarded as a descriptive expression. Certainly “groundfos” could not be described as a common dictionary word, or even a combination of such words. At best for the Respondent, it is a combination of one dictionary word (ground), a technical acronym the use of which appears to be restricted to the United States military (“FO”), and the letter “s”. Even if “groundfos” does have some limited use as a descriptive expression, the Panel doubts that such use is sufficiently widespread to bring the expression within the “common English word or expression” principle on which the Respondent relies. Indeed, the Panel doubts that that principle should be regarded as being applicable at all to acronyms which might have numerous possible meanings. When such an acronym is converted into plural form by the addition of the letter “s”, and another word is placed in front of it, the application of the “anyone who acts in good faith may register a dictionary word or descriptive expression” principle on which the Respondent relies, becomes even more problematic.
2. Even if “groundfos” can be regarded as a common descriptive combination of words, the Panel is not satisfied that the Respondent intended that the Domain Name should be understood to have the meaning for which the Respondent now contends.
2.1 First, the Respondent merely says that the Domain Name can be read as “ground forward observation site” (the Panel’s emphasis). That is hardly the kind of language the Panel would have expected to see if, at the time of registration, the Respondent genuinely intended that the Domain Name should be understood by Internet users as a reference to “ground forward observation site”.
2.2 Secondly, none of the documents produced by the Respondent support the claimed “ground forward observation site” meaning. The extract from the online dictionary of acronyms and abbreviations would appear to support a possible meaning of “forward operating site” for “fos”, and the two extracts from online articles appear to support a possible meaning of “ground forward observers”. Nothing has been produced which shows “ground fos” being used to mean “ground forward observation site”, and one can readily appreciate why. A “site” is inevitably going to be on the ground, and there would be no need to add the word “ground” in front of the words “forward observation site”. (The expression “ground FO” as used in the two online articles produced by the Respondent, appears to have been used in the context of aviation warfare, where, from the aviator’s perspective, it would make sense to refer to a “ground forward observer” (i.e., an observer who is on the ground)).
2.3 Thirdly, if the Respondent in fact chose the Domain Name because of its attractiveness as a descriptive expression meaning “ground forward observation site”, one would have expected to find links at the Respondent’s website having some relationship to that claimed meaning. The Panel has not noted any such links. On the contrary, the vast majority of the links appear to relate specifically to the complainant, or to the field of pumps, in which the Complainant is clearly a very significant player.
3. Having regard to the matters referred to in subparagraphs 1-2 above, the Respondent has not provided sufficient to persuade the Panel that it genuinely selected the Domain Name on account of its attractiveness as a generic or descriptive expression.
Application of the Policy to the Foregoing Facts
1. The Respondent has cited numerous Panel decisions in support of its arguments as described above. The Panel need not refer to them all. It is enough for present purposes to refer to four of the cases cited by the Respondent. The first case is The Landmark Group v. DigiMedia.com, L.P., NAF Claim No. 0285459. In that case, which was decided in August 2004, the three-member Panel noted:
“As long as the domain names have been registered because of their attraction as dictionary words, and not because of their value as trademarks, this is a business model that is permitted under the Policy. Gen.Mach.Prods. Co v. Prime Domains, NAF Case No. 92531.”
In this case, the Respondent has failed to persuade the Panel that the Domain Name has been registered because of its attraction as a dictionary word.
The second Panel decision is Advanced Drivers Education Products and Training, Inc v. MDN, Inc. (Marchex), NAF Case No. 0567039. That case was concerned with the domain name <teensmart.com>, and the complainant argued that the domain name was identical to its TEEN SMART trade mark. The Respondent contended for a generic, or descriptive meaning “teen’s mart”, i.e., a “mart. for teens”. The three-member Panel noted that the website to which the at-issue domain name pointed provided links that, although not of a sophisticated nature, would clearly be of interest to teenagers. The Panel noted that the at-issue domain name “can be reasonably seen as a descriptor of the site’s intended content or theme”. In dealing with the question of rights or legitimate interest under the Policy, the Panel noted:
“Because there is some reasonable connection between Respondent’s use and the Domain Name …, Complainant has not succeeded in proving that Respondent lacks any rights or legitimate interests in the Domain Name. See Canned Foods Inc v. Ult. Search Inc., NAF Case No. 96320 (respondent had legitimate interest in <groceryoutlet.com> domain name because site consisted of portal providing links to groceries and similar goods); Landmark Group v. DigiMedia.com, L.P., NAF Case No. 285459 (respondent had legitimate interest in <landmarks.com> domain name because site contained paid links to “landmark” – related websites.).”
The passage quote above from the decision in the Advanced Drivers Education Products and Training, Inc case, was adopted verbatim by the majority of the three-member Panel in the subsequent decision of New Jersey Divorce Centre, Inc. v. iGenesis Limited, NAF Case No. 0584783, which was also cited by the Respondent.
In this case, there does not appear to be the slightest connection between any descriptive, or generic meaning which might be attributed to the Domain Name, and the use which the Respondent is in fact making of the Domain Name. The numerous references on the Respondent’s website to the Complainant or its products, or to the field of commercial endeavor in which the Complainant operates, point far more strongly to the Respondent having chosen the Domain Name because of its value as a close approximation of the Complainant’s trademark.
The fourth case, McMullen Argus Publishing Inc v. Moniker Privacy Services/Jay Bean, M@NH, Inc.;
WIPO Case No. D2007-0676, makes the same point. In that case, the three-member Panel was dealing with the domain name <europeancar.com>. The Complainant published a magazine of that name, while the Respondent was using the domain name in connection with an automotive-related business. The Panel noted:
“Respondent is using the disputed domain name for an automotive-related business and did so prior to the commencement of these proceedings or any notice of this dispute. The website bears some relationship to the descriptive phrase for which Respondent claims to have registered the disputed domain name.”
In this case, the Respondent’s website bears no apparent relationship to the allegedly descriptive phrase for which the Respondent claims to have registered the Domain Name.
More recent Panel decisions have been to similar effect. See, for example, Starwood Hotels and Resorts Worldwide, Inc., Sheraton LLC and Sheraton International Inc., v. Jake Porter,
WIPO Case No. D2007-1254, where the Panel was concerned with a number of domain names which incorporated the expression “St. Regis”. The Panel noted:
“There is no evidence in the record that the advertising links displayed on the parking websites to which the domain names formerly resolved had anything to do with any of those uses of St. Regis [i.e., the uses the respondent claimed to have intended], however, belying the Respondent’s claimed interest in the domain names for their “generic” value.”
See also the three-member Panel decision in mVisible Technologies Inc v. Navigation Catalyst Systems, Inc,
WIPO Case No. D2007-1141. In that case, the Panel was dealing with a total of 35 at-issue domain names, involving various expressions similar to the complainant’s trademarks MYXER and MYXER TONES. The respondent claimed that the words “mix” and “mixer” are widely used to refer to the practice of mixing audio recordings for use as cellular phone ring tones, being an area in which it claimed to have some legitimate interests. The Panel rejected the respondent’s legitimate interest claims, noting:
“Proof that the real value in these domain names is based on the trademark value of “MYXER”, is that 33 of the 35 domain names at issue resolve to landing pages … that include links to services that are closely related to or directly competitive with Complainant’s services. … On their face, these links have nothing to do with mixing music but instead offer services competitive with Complainant’s services.”
The Panel in the mVisible Technologies Inc. case acknowledged that links on a given landing page which are truly based on the generic value of the domain name may constitute a bona fide use (referring to the Landmark Group case). However, the Panel went on to say:
“If though, the links are based on the trademark value of the domain names, the trend in UDRP decisions is to recognize that such practices generally do constitute abusive cyber squatting (see e.g. Champagne Lanson v. Development Services/MailPlanet.com Inc.,
WIPO Case No. D2006-0006 (pay per click landing page not legitimate where ads are keyed to the trademark value of the domain name); The Knot, Inc v. In Knot We Trust, LTD.,
WIPO Case No. D2006-0340 (same); Brink’s Network Inc v. Asproductions,
WIPO Case No. D2007-0353 (same).” (See also to similar effect Asian World of Martial Arts Inc. v. Texas International Property Associates,
WIPO Case No. D2007-1415 and Alpine Entertainment Group, Inc. v. Walter Alvarez,WIPO Case No. D2007-1082).
Summary of Conclusions on this part of the Complaint
In summary on this part of the Complaint, the Respondent has failed to persuade the Panel, on the balance of probabilities, that its use of the Domain Name has been in connection with a bona fide offering of goods or services. That conclusion is based on a combination of the following:
(i) Insufficient proof that the Domain Name is a generic, or descriptive expression as claimed; and
(ii) Even if it is, the Panel is not persuaded that the Respondent chose the Domain Name because of any attractiveness that generic or descriptive meaning may have had. The material produced by the Respondent does not in fact support the descriptive or generic meaning for which the Respondent now contends, and the various links on the Respondent’s website appear to have no relationship whatsoever with that claimed generic or descriptive meaning. On the other hand, many of the links do have a clear connection with the Complainant and its products, and that tends to suggest that the real perceived value of the Domain Name lay in its visual similarity to the Complainant’s trade mark. That could never provide a basis for claiming a legitimate interest in the Domain Name.
The Respondent has not advanced any other basis for claiming a right or legitimate interest in the Domain Name, and, for the foregoing reasons, the Panel finds that it has no such right or legitimate interest. The Complainant therefore also succeeds on this part of the Complaint.
D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances are:
(i) circumstances indicating that [the respondent has] registered or 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 trade mark or service mark or to a competitor of that 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 trade mark 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] website 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 [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.
The Panel has come to the view that the Complainant must also succeed on this part of its Complaint. The Panel has come to that view for the following reasons:
1. The Domain Name is confusingly similar to the Complainant’s GRUNDFOS mark.
2. For the reasons discussed in section C above, the Respondent has failed to persuade the Panel that it has been making a bona fide use of the Domain Name.
3. The Respondent has made much of the body of Panel decisions which have emphasized the need for some proof that the respondent has been targeting the Complainant’s trademark, especially in circumstances where the at-issue domain name is a dictionary word, or a descriptive or generic expression. The Panel accepts that that will be an appropriate starting point in most cases. The Panel also accepts the proposition advanced by the Respondent based on the Terana case, that it may be appropriate to draw an inference of targeting in cases where the complainant’s mark is either inherently distinctive, famous, or well known, but that no such inference will normally be appropriate in other cases where there is no evidence of the respondent being aware of the complainant’s trademark rights at the time of registration.
4. However, those who register domain names, and particularly those who register domain names in large numbers using automated programs and processes, are not allowed to simply turn a blind eye to the possibility that the names they are registering will infringe or violate the rights of trademark owners. That responsibility derives from paragraph 2 of the Policy, and in particular the words: “It is your responsibility to determine whether your domain name registration infringes or violates someone else’s rights”.
5. A number of Panel decisions have now addressed the application of Paragraph 2 in the context of professional domainers registering large numbers of domain names for the purposes of sale or pay-per-click advertising. It seems to the Panel that the developing consensus is that the domainer must make reasonable good faith efforts to avoid registering and using domain names that are identical or confusingly similar to marks held by others. In Mobile Communication Service Inc v. WebReg, RN,
WIPO Case No. D2005-1304, the Panel was dealing with a case where the Respondent registered large numbers of domain names for resale, using automated programs which snapped up domain names as they became available. The Panel found that the Respondent was not entitled to shield its conduct by “closing its eyes” to whether the domain names it was registering were identical or confusingly similar to a third party’s trade marks. If such a domainer paid no attention whatsoever to whether its registrations might be identical to third party trade marks, the domainer’s practice might well support a finding that it has been engaged in a pattern of conduct that deprives trademark owners of the ability to register domain names reflecting their marks.
In the later case of Media General Communications Inc v. RareNames WebReg,
WIPO Case No. D2006-0964, the Panel again considered large scale registration of domain names for the purpose of reselling/advertising links. The Panel noted that such practices would most likely be regarded as legitimate in the following circumstances:
(i) Where the Respondent regularly engages in the business of registering and reselling domain names, and/or using them to display advertising links;
(ii) The Respondent makes good faith efforts to avoid registering and using domain names that are identical or confusingly similar to marks held by others;
(iii) The domain name in question is a “dictionary word” or a generic or descriptive phrase;
(iv) The domain name is not identical or confusingly similar to a famous or distinctive trademark; and
(v) There is no evidence that the Respondent had actual knowledge of the Complainant’s mark.
The Panel notes that the “test” proposed by the Panel in the Media General Communications, Inc. case has been adopted and applied by subsequent Panels – see, for example, the recent case of Gigglesworld Corporationv. Mrs. Jello,
WIPO Case No. D2007-1189, Shangri-la International Hotel Management Limited v. Net Income Ventures Inc,
WIPO Case No. D2006-1315, and Starwood Hotels and Resorts Worldwide, Inc. (supra).
In the latter case, the Panel referred to the obligations on registrants contained in paragraph 2 of the Policy, and said:
“This provision has not been read as routinely requiring registrants to conduct a trade mark search. But it does suggest that the Respondent has some obligation when registering an uncommon name for potential resale and using it to generate revenue from third-party advertising, to avoid a likelihood of confusion with the trade marks of others. This possibility would have been revealed with a simple search engine query, as the leading results on the most popular search engines highlight the Complainant’s St Regis properties.”
In this case, the Panel is of the view that the Domain Name can be categorized as an “uncommon name”, and of course the Respondent has been using it to generate revenue from third party advertising.
If anything, the very experienced three-member Panel in the mVisible Technologies Inc. case (supra) adopted an even stronger position on the obligations of professional domainers in the discharge of their obligations under paragraph 2 of the Policy. The Panel in that case said:
“Although there may be no obligation that a domain name registrant conduct trade mark or search engine searches to determine whether a domain name may infringe trade mark rights, a sophisticated domainer who regularly registers domain names for use as [pay-per-click] landing pages cannot be willfully blind to whether a particular domain may violate trade mark rights. In this context, a failure to conduct adequate searching may give rise to an inference of knowledge.”
And further, “… an even more thorough search would also include search engine searches to see what new websites may exist that use a name identical or confusingly similar to the domain name at issue even in the absence of a trade mark application or registration. … Similarly, Yahoo! and Google offer highly effective search engines to determine the most relevant references on the Internet in response to a particular search term……..Searching of this kind is particularly appropriate for companies that operate [pay-per-click] landing pages … In this context, registrants that run [pay-per-click] landing page businesses cannot be willfully blind to whether domain names they register are similar to trademarks and are pulling up [pay-per-click] advertising related to those trademark rights….It is reasonable to infer, based upon the circumstantial evidence available, that Respondent, a sophisticated party in the [pay-per-click] landing page business, must have been aware of the relevant trademark.”
In this case, the Panel has already noted that the Domain Name can hardly be regarded as a “dictionary word”, and it is questionable whether in fact it could be categorized as a “generic or descriptive phrase” at all. In those circumstances, the Panel believes that an experienced professional Internet operator such as the Respondent was obliged to make some level of “good faith efforts to avoid registering and using domain names that are identical or confusingly similar to marks held by others”. The Respondent appears to have made no such “good faith efforts” at all. (Indeed, the Response makes it very clear that the Respondent’s primary position is that it did not have to make any “good faith efforts” of the kind referred to in the Media General Communications, Inc. case, because of the allegedly descriptive nature of the Domain Name. The Panel rejects both the premise and the conclusion of that submission.)
On the subject of “good faith efforts”, the Panel notes first that the Respondent does not mention conducting any Google, Yahoo!, or other Internet search engine search on the Domain Name. The Respondent simply says that it “registered the disputed domains because it believed they consisted of a generic and descriptive term to which no party had exclusive rights”. (The use of the plural in that passage suggests that the Respondent has simply “cut and pasted” this part of the Response from its response in some other administrative proceeding – in this case, we are of course concerned with only one domain name.)
The Panel notes secondly that the Respondent says that had it searched the United States Patent and Trademark Office for Complainant prior to registering the Domain Name, which it had no obligation to do, it would have found no registered mark for the terms “ground fos” or “groundfos”.
The Panel concludes from the foregoing that, notwithstanding the unusual nature of the expression “ground fos” (to which the Panel finds that most Internet users would be unable to ascribe any meaning at all), the Respondent did not:
(i) conduct a search at the United States Patent and Trademark Office; or
(ii) conduct any Google, Yahoo!, or other Internet search engine search on the expression “groundfos”.
The Respondent does assert that it had no actual knowledge of the Complainant. The Panel is not in any position to reject that statement as being false, but the claim of “no actual knowledge” does not do anything to avoid the “willful blindness” difficulty the Respondent faces in terms of cases such as Mobile General Communications and Media General Communications, Inc.
The Complainant has produced evidence that it operates in the United States, and that it has a United States Federal registration for its GRUNDFOS mark. It has produced evidence that a search on “grundfos” produced over 3 million hits, and that is sufficient evidence to establish that the Complainant has a very substantial presence on the Internet. The Panel has little doubt that if the Respondent had undertaken even a perfunctory Internet search it would have been alerted to the Complainant and its GRUNDFOS mark.
It is not necessary for the Panel to make a finding on whether the evidence is sufficient to show that the Complainant and its mark are “famous” or “well known”. It is enough for present purposes to find, as the Panel does, that the Respondent should have conducted some good faith searches before registering the Domain Name, and that if it had done so, it would have readily found reference to the Complainant and appreciated the likelihood of confusion between the Domain Name and the Complainant and its GRUNDFOS mark. The Domain Name is a sufficiently unusual expression that, in the Panel’s judgment, searches of that kind should have been undertaken, and the Respondent was “willfully blind” in failing to do so.
4. The Respondent submits that it is not responsible for the sponsored links appearing on the Respondent’s website. It says that those links were chosen by Google or Yahoo!, without its knowledge or input. The Panel does not accept that the Respondent can disclaim responsibility for the various links on the Respondent’s website which are concerned either with the Complainant or with the field of commercial activity in which the Complainant is a major player. The Panel respectfully agrees with the Panelist in the Starwood Hotels and Resorts Worldwide Inc case, where it was found that the Respondent was “ultimately accountable for the use of the Domain Names, even if an employee (or algorithm) of an online affiliate advertising network selected the particular advertisements on display”. See too the decision of this Panel in NVT Birmingham, LLC d/b/a CBS 42 WIAT-TV v. ZJ;
WIPO Case No. D2007-1079, where the Panel held that “the Respondent cannot escape responsibility for the advertising on the Respondent’s website, on the basis that it was generated by Google without any involvement on the Respondent’s part”. The Panel in the NVT Birmingham case approved the following statement from the decision of the three-member Panel in Grisoft, s.r.o. v. Original Web Ventures Inc.,
WIPO Case No. D2006-1381:
“Although the web pages were automatically generated by DomainSponosr’s software of searches made by visitors, this system is inherently likely to result in the display of sponsored links in the field in which a company whose mark corresponds to the domain name is active, including that company’s competitors. It is thus a system which is likely to enable the registrant to obtain click-through commissions from the diversion of Internet users who are confused where (as here) the second level domain (“SLD”) is identical to the mark of a company which has been used on a substantial scale for a number of years.
The Respondent is ultimately responsible for the content of the website generated by domain sponsor’s technology.”
The Respondent must have turned its mind to what sort of advertising links would appear on the Respondent’s website, even if it did not procure those links itself. Quite clearly, the links have little to do with the meaning the Respondent claims it had in mind for the Domain Name – the links are mostly concerned with the Complainant, and the field of pump manufacture and marketing. The Respondent should have explained that (obviously suspicious) state of affairs, but has elected not to do so. (Reference to the Complainant’s own advertising arrangements with the advertising feed providers , does not adequately explain the presence on the Respondent’s website of sponsored links to sites operated by others in the commercial pumps field, including the Complainant’s competitors, or the dominant focus of the Respondent’s website on commercial pumps generally.) Nor has the Respondent explained the presence of pictures of water heaters on the website – did Google or Yahoo! provide these too? It seems unlikely, especially as the Respondent apparently has sponsored link arrangements with both Google and Yahoo!, and presumably neither company would have been given the right to “dominate” the Respondent’s website as this picture does. Also, the Respondent’s website carries a copyright claim asserted by “groundfos.com”. On the face of it, that appears to be a design claim asserted by the owner of the Respondent’s website, and that is of course the Respondent. In addition, the Respondent’s website prominently carries the wording: “For resources and information on Grundfos Pump and Grundfos Pumps”. That does not appear as a sponsored link, but as a prominent heading designed to alert the site visitor to the primary focus of the site. If that heading was provided by Yahoo! or Google, the Respondent could have and should have said so, and explained the instructions given to those companies and the basis on which they were entitled to place such material on the Respondent’s website. The Respondent has elected not to disclose anything of its arrangements with Google and Yahoo!
For all of the foregoing reasons, the Panel finds that the Respondent registered and has been using the Domain Name in bad faith. Either it was aware of the Complainant and its mark (in which case this is a blatant case of “typosquatting”), or it has been willfully blind in registering an uncommon Domain Name without even a cursory check of Internet search engines or the relevant trade mark register. The first alternative scenario would require a finding of bad faith registration and use under paragraph 4(b)(iv) of the Policy. The second alternative scenario may not sit comfortably within any of the four subparagraphs of Paragraph 4(b) of the Policy, but on the authority of cases such as Mobile Communication Service Inc. and Media General Communications Inc., still constitutes bad faith registration and use under Paragraph 4(a)(iii) of the Policy.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <groundfos.com> be transferred to the Complainant.
Warwick Smith Sole Panelist
Dated: December 14, 2007
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