Decision for dispute CAC-UDRP-100390

The Panel is not aware of other legal proceedings which are pending or decided and which would relate to the disputed domain name or to the disputed decision.

The Complainant, Eni S.p.A, a worldwide energy Group, has a range of registered trademarks, including the following:

ENI:
- 1 wordmark ENI registered in the European Union (CTM No. 9093683 registered on April 27, 2010),
- 411 figurative trademarks consisting of a yellow background containing at the top the drawing of an animal resembling a six-legged black dog, and at the bottom the word "Eni" in which each letter is formed by two black lines, registered in more than 90 countries including the most important jurisdictions all over the world,
mainly, but not only, for fuels, greases, lubricants, and/or advertising.

AGIP:
- 1 wordmark registered in more than 60 countries (in particular CTM No. 005640511, registered on December 10, 2009),
- about 200 figurative trademarks where the word "Agip”, formed by two black lines, appears alone or with the drawing of the animal described above, registered in several countries including the most important jurisdictions all over the world,
mainly, but not only, for fuels, lubricants, and/or advertising.

The Respondent Bizzintro / Robert Pittner has registered the domain name ENIRACING.COM on May 31, 2011 and the domain name AGIPRACING.COM on April 22, 2010. This has been confirmed by the registrar, GoDaddy.com LLC, after a request for verification, on February 22, 2012.

This is disputed by the Respondent, who wrote in his Response: “Not true – who ever collected the data, numbers and info about Complainant should at least start its complaint process grounded on true facts. Bizzintro registered both domains on 31.5.2011”. The Respondent solely offered as evidence a partly obfuscated GoDaddy receipt dated May 31, 2011… which shows that this registrar claimed on that day fees for the registration of ENIRACING.COM and separate fees for the renewal of AGIPRACING.COM. This falsehood is the first of a long list of assertions not substantiated by the Respondent.

The disputed names are used for two websites which content – mainly third parties videos of girls and models usually present at motor events, and rare texts with multiple mentions of ENI and AGIP trademarks (“racing news about many Worlds biggest brands”, the Respondent writes) – relates to the Complainant’s activities and “lead to web parking pages” according to the Complainant. This is not disputed by the Respondent who wrote that “Bizzintro intended to earn money for Eni S.p.A. with those websites”.

Nevertheless, it seems exaggerated to the Panel to speak of “parking pages”, as the Complainant’s evidence show there were:
- 4 sponsored links (including one “Oil & Gas Project Tracker”) above an article titled “Eni Racing – Pit Babes”, published at eniracing.com/category/about-eni-racing,
- 4 sponsored links at the right of an article titled “Agip Racing” published at agipracing.com/eni-racing-commercial,
- 4 sponsored links (including one “Make Money in Oil” and one “Oil & Gas Project Tracker”) above an article titled “Max Biaggi Aprilia Eni Racing / Aprilia Agip Racing”, published at eniracing.com/max-biaggi-eni-racing-agip-racing.

The ads come in the form of a block that can be easily recognized as Google AdSense advertisements. Though the Respondent does not challenge the Complainant’s contentions that the disputed domain names directed to parking pages, he offers evidence that he was using on his two websites “AdSense for Content”, a product Google describes as “a way for website publishers of all sizes to earn money by displaying Google ads on their website's content pages”, where “ads are related to what [their] users are looking for on [their] site”.

Finding that the Respondent was using its trademarks ENI and AGIP “to take advantage by the reputation and high perception of the trademarks to diverted consumers and visitors from the Eni and AGIP official sites to the Respondent’s ones”, that visitors “may find themselves before a list of different links in many cases also of Eni’s competitors”, that visitors may experiment “a sort of disappointment … towards the Complainants’ trademark” and make them “frustrated and disappointed” leading them to “avoid in the future to enter also the Complainant’s official web sites”, Eni S.p.A sent a notified letter to the Respondent on July 7, 2011.

The Complainant gives evidence that the Respondent did not claim this letter (stamp of the Croatian post office in Križevci of July 21, 2011 on the receipt returned to the Complainant). The Respondent writes: “I never got any letter whatsoever from Eni S.p.A. or their representatives until 10.2.2012”.

The Complainant also tried to reach the Respondent by phone, using the telephone details indicated in the registration forms of the disputed domain names, and explains it was welcomed by a message saying "Birali ste broj koji se ne koristi", meaning this number is not in use. This is not challenged by the Respondent.

On February 10, 2012, the Complainant sent a follow up e-mail to request the Respondent to “transfer free of costs” the two domain names. The Respondent replied on February 13 with what he labeled an “official response to the request” asking “what would be Eni S.p.A budget offer for complete property” (sic), attached to an e-mail solely addressed to the Complainant’s legal counsels where he is “offering [them] a 10 % of transaction amount for [their] services during the transaction between Eni S.p.A. and [him] as a seller” (sic), adding “I hope that my offer is at least 100 times better than your standard fee for your original request is. Such an offer does not happen twice in a lifetime and I really hope that you (or your partners) will consider my offer”.

PARTIES' CONTENTIONS:

COMPLAINANT:

The Complainant contends as follows:

“1. About confusingly similarity between trademarks and the contested domain name
In assessing confusingly similarity the top level suffix .com has to be disregarded. As stated in many WIPO decisions “The addition of the gTLDs “.biz”, “.info” and “.org” is not of legal significance from the standpoint of comparing the disputed domain names to the trademark. Such use is required of domain name registrants and do not serve to identify a specific enterprise as a source of goods or services” WIPO Case No. D2001-0602, SBC Communications v. Fred BellakaBellInternet.
Furthermore also the addition of generic descriptive terms to a trademark in a domain name such as RACING, is insufficient to avoid a finding of confusing similarities. In many WIPO cases panels have usually found the distinctive part of the trademark to constitute the dominant or principal component of the domain name. See WIPO cases D2001-0110 on “ansellcondoms.com”; D2005-0587 on “naturelle.com; D2006-1307 on “ebaymoving.com”; D2007-0768 on “playboyturkey.com.
Therefore the comparison has to be made between ENIRACING and AGIPRACING on one side and ENI and AGIP and all the other trademarks of the relevant trademark families of ENI and AGIP such as for example ENI-I-RIDE and AGIP F1 or AGIP FORMULA which all evoke motor races. It does not matter if the trademarks comprised figurative elements. “Figurative elements are generally be incapable of representation in a domain name and therefore such elements are typically disregarded for the purpose of assessing identity of confusing similarity” WIPO outlook 2011. See WIPO cases on this point such as D2001-0031 on “sweeps.com D2003-0645 on “britishmeat.com, D2008-1637 on “whichar.com ; D2010-0509 on “islamicbank.com” Finally, the risk of confusion in the case at issue is also increased by the fact that the Complainant’s trademarks are well and widely known in the motor racing sector and the Respondent’s domain names and related web site concern motor sport events

2. The Respondent has no rights or legitimate interests in respect of the domain name (Policy, Paragraph 4 (a) (ii); Rules, Paragraph 3 (b) (ix) (2))

The Complainant claims that the Respondent has no right or legitimate interests in respect of the contested domain names.
As WIPO summarized its case law on this point as follows “Preliminarily, although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of the Respondent. Thus, the consensus view is that paragraph 4(c) of the Policy shifts the burden to the Respondent to come forward with evidence of a right or legitimate interest in the Domain Name, once the Complainant has made a prima facie showing indicating the absence of such rights or interests WIPO Case No. D2000-0270, Document Technologies, Inc. v. International Electronic Communications Inc. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455, <croatiaairlines.com>
The present Respondent often alludes both in its websites and in its reply to our letter to bond Eniracing and Agipracing with their fans. In other words it seems to put forward the idea that its web sites are just non commercial and pro fan oriented. There are many UDRP cases in which the respondent claims to have an active noncommercial fan site but in many cases as the present one it comes out to be a simple pretext for commercial advantage. See:, WIPO Case No.D2000-1000,”bridgetjones.com” WIPO Panels have found that a claimed fan site which includes pay-per-click (PPC) links or automated advertising would not normally be regarded as a legitimate non-commercial site. D2007-1841, “kareemabduljabbar.com>, D20 09-0057, “jenniferlopez.net”, D2000-1459,”davidgilmour.com”, D2006-0916, “waynerooney.com”, D2008-0472, “davidfoox.info”, D2009-0173, “russelpeters.com”, D2009-0542, “gormiti.mobi. However in the cases at issue the Respondent’s websites are not a “non commercial sites” because in its internal pages there are web parking connections. In fact the Respondent has been using the domain names also for parking pages website as shown in Annex 20. This Court has taken a clear position on web parking sites The Respondent is using the disputed domain names for pay-per-click parking pages, attracting as many Internet users as possible to its websites. The domain names are mere doors to other websites which have paid for advertisement and which in many cases are not connected in any manner to the Complainant. When Internet users connect to the disputed domain names they are directed to parking pages showing advertising of different products and services, some of them being related to the motor sector. This is a definite diversion of potential Complainant’s consumers and partners and cannot be considered a bona fide offering of goods and services. CAC Case 100358 www.arcelormittal.biz Previous UDRP panels have held that Respondent’s use of a domain name, which incorporates a third party’s trademark in connection with an Internet web site that merely lists links to third party web sites is not a bona fide offering of services and is not a legitimate non-commercial or fair use of the disputed domain name WIPO Case No. D2007-1499, E.J. McKernan Co. v. Texas International Property Associates, WIPO Case No. D2010-1437, Lardi Ltd v. Belize Domain WHOIS Service Lt Inc, WIPO Case No. D2007-1415, Asian World of Martial Arts Inc. v. Texas International Property Associates.
Respondent’s use of the domain is in no way a bona fide offering of goods and services and this only emphasizes the fact that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The Respondent has no registered trademark rights in the words ENI or AGIP and there is no evidence at all that the Respondent is commonly known by the disputed domain name. On the contrary, as herein already mentioned, The Respondent has set up two web sites that take advantage of the reputation and long standing history of the two trademarks of ENI also with regard to motor races.
The Respondent has not been licensed or otherwise authorized to use any of the Complainant’s trademarks or to apply for or use any domain name incorporating such trademarks. In similar circumstances, Panels considered that no bona fide or legitimate use of the disputed domain name could be claimed by the Respondent WIPO Case D2000-0055, Guerlain SA v. Peikang, WIPO Case D2008-0488, BHP Billiton Innovation Pty Ltd. v. OS Domain Holdings IV LLC, WIPO Case D2009-0258, Mpire Corporation v. Michael Frey.

3. The domain names have been registered and are being used in bad faith (Policy, paragraphs 4 (a) (iii), 4(b); Rules, paragraph 3 (b) (ix) (3))

The disputed domain names have been registered and are being used by the Respondent in bad faith. Mr. Pittner / Bizzintro’s reply to the Complainant’s warning letter shows a deliberate design to oblige the Complainant to do business with the Respondent because of the property of the two contested domain names.

As to bad faith registration, when registering the disputed domain names, the Respondent was necessary aware of the Complainant’s well-known business and widespread reputation in its ENI and AGIP trademarks And this is what the Respondent expressively states in its letter. Those two domain names as weapons to force Eni to do business with the Respondent. And this is also proved (besides the last correspondence of few days ago) by the fact that the disputed domain names are used as a web parking in relation to motor event and motor sector in general . Clearly, such maneuver would not have been generated if the Respondent did not know the Complainant’s activities (WIPO Case D2010-1290, Meilleurtaux v. Domain Manager of Bondi Junction This is a clear proof of registration in bad faith and the obvious envisaged goal is to divert motor aficionados from the Complainant’s web site to the contested web parking. As to bad faith use, WIPO states that “The Policy indicates that certain circumstances may, "in particular but without limitation", be evidence of bad faith the fact that a respondent "by using the domain name, … [has] intentionally attempted to attract, for commercial gain, Internet users to [its] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] web site or location of a product or service on [its] web site or location" (id., paragraph 4(b)(iv)). In this scenario also the address and telephone details provided and not effective may contribute to the complete the panorama of bad faith.
In the case at hand Respondent has intentionally sought to use Complainant’s marks in the disputed domain names to attract Internet users to websites and other on-line locations for commercial gain by confusing consumers as to sponsorship of the website. This constitutes bad faith within the meaning of paragraph 4(b)(iv) of the Policy. (WIPO Case No. D2000-1495, America Online, Inc. v. John Zuccarini, also known as Cupcake Message, Cupcake Messenger, The Cupcake Secret, Cupcake Patrol, Cupcake City, and The Cupcake Incident
The domain name is so obviously connected with the Complainant’s trademarks and its services that their very use by someone with no connection with the Complainant suggests "opportunistic bad faith" (WIPO Case No. D2000-0226, Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net - Annex 36, WIPO Case No. D2000-0163, Veuve Cliquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., net, WIPO Case No. D2001-0781, Fortuneo v. Johann Guinebert -
Thus, the Respondent knowingly and intentionally attempted to divert the traffic intended for the Complainant’s website to its own websites. Consequently, the Respondent has through the use of identical domain names, created a likelihood of confusion with the Complainant’s prior rights, which constitutes a misrepresentation to the public who might think that the disputed domain name belongs or is connected to the Complainant (WIPO Case D2007-0424, Alstom v. Yulei).”

The Complainant requests the transfer of the disputed domain names.


RESPONDENT:

The Respondent submitted a very long non-conventional response, where he included screenshots of the Complaint followed by his comments. Under CAC’s UDRP Supplemental Rules (article 13), the limit for the response “shall be 5,000 words”. This prolix Response counts 5,370 words, and thus does not comply with the procedural rules. The Panel will nevertheless take it in consideration so that the Respondent is not deprived of his right to be heard.

The Respondent has identified in the Complainants 16 points, to which he answered with merely factual comments, some of them being quoted below. Legal arguments are hard to identify:
- Under “Response nr. 5”, the Respondent writes “no need to speak about freedom of speech and editors choice of news publishing. In this times freedom of speech is something that we all have to fight for”, before adding “I asked Complainant dozens of times (and from the first day) of possibilities to do business and how those websites should look like if there was any business cooperation between Eni S.p.A and Bizzintro. No one from Complainant (Eni S.p.A.) never ever actually had any answer on any topic. I never got any instructions of what should I’ve been publishing on my websites and I was only lead by common sense, good business spirit and hope that someday someone will finally answer my requests about distribution status”,
- Under “Response nr. 6”, Respondent contends that “Agip (and now Eni) among other brands has great reputation and I just maintained the same flow. It is USE but never misuse or abuse the trademarks (while waiting positive or any response for cooperation). Both Agip and Eni brands in their registered trademarks and files haven’t got any word “racing” anywhere” (sic),
- Under “Response nr. 9”, Respondent writes “First of all, Agip.com (Abu-Ghazaleh Intellectual Property) is definitely confusingly similar to Agip.it and still those two brands have different owners. Second, Eni.ae (Emirates National Investment) is also confusingly similar with Eni.com and still those two brands have different owners. Furthermore, all Eni’s distributors that can be found on the internet have something similar in their domain names, and they use Eni/Agip logos that also are original. Those websites too are not questioned for being confusingly similar. If and only if my websites wouldn’t serve to Eni S.p.A. profits, then we could discuss similarity. On disputed websites one can find news from Eni S.p.A. and from racing, all that with links and source where those posts are from. We can’t discuss confusing similarity between trademarks in Agip.com or Eni.ae case. Websites Agip.com and Eni.ae have absolutely nothing in common with the Complainant”,
- Under “Response nr. 10”, “as a National Champion in car racing (Croatian Clio Cup Champion) and winner of many car races, I have absolutely every right to use every existing domain name that contains "racing" … Even more on this, my son William is also a racing driver himself and our karting team may use suffix "racing" in any domain name”.

The Respondent repeatedly writes that he intended and still intends to do business with the domain names, like “getting importers status, distributor status, affiliate program or any way that [he] could sell Eni products thru (potentially) [his] website” (sic), and offers some evidence he tried to contact people he alleges are employees of the Complainant by e-mail or through social media (YouTube and Linked In).

In his concluding remarks, the Respondent invites the Panel to “do the one and only one logic thing and declare that this complaint is invalid and that [he is] not guilty of what [he is] charged in this case” (sic – “do the one and only one logic thing” is underlined by the Respondent).

The Complainant has, to the satisfaction of the Panel, shown the disputed domain names are confusingly similar to a trademark in which the Complainant has rights (within the meaning of paragraph 4(a)(i)of the Policy).
[see below]

The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain names (within the meaning of paragraph 4(a)(ii)of the Policy).
[see below]

The Complainant has, to the satisfaction of the Panel, shown the disputed domain names have been registered and are being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy).
[see below]

Except with regard to the violation by the Respondent of article 13 of CAC’s UDRP Supplemental Rules [see above], the Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.

1. Are the disputed domain names identical or confusingly similar to a trademark in which the complainant has rights?

Each disputed domain name includes in its entirety, and without any change, a word on which the Complainant has a trademark right acquired prior to its registration. This wordmark is placed in the beginning of the respective disputed domain names, followed by “racing”.

“A domain name that merely adds terms to the complainant’s mark that do not distinguish the domain name from the mark – namely, generic or descriptive terms – will be confusingly similar to the complainant’s mark” (D. Lindsay, International Domain Name Law, Hart Publishing, 2007, § 5.32).

The addition of “racing” to a trademark has been found confusingly similar to this trademark in many cases: momoracing.com (“confusingly similar to the Complainant’s registered trademarks MOMO, MOMO R3 and MOMOCORSE” – WIPO D2001-0961, October 29, 2001); aolracing.com and aolracing.net (“domain names are confusingly similar to Complainant’s AOL trademark because they incorporate Complainant’s AOL mark in its entirety and merely add a top-level domain name and the generic term “racing,” which, due to Complainant’s association with NASCAR, is likely to cause confusion” - NAF 104131, March 15, 2002); winstoncupracing.com (NAF 165152, August 14, 2003); catracing.com (“confusingly similar to Complainant’s registered trademark CAT because the disputed domain name appropriates the entire mark and simply adds a generic term, “racing,” to the end of the mark. Thus, the Panelist [held] that the disputed domain name is confusingly similar to Complainant’s mark because the addition of a generic term to a famous mark does not sufficiently distinguish the domain name from the CAT mark” – NAF 183726, September 30, 2003); harleydavidsonracing.com (“the mere addition of a descriptive term to Complainant’s registered mark does not adequately distinguish Respondent’s domain names from Complainant’s mark pursuant to Policy ¶ 4(a)(i)” – NAF 671212, MAY 22, 2006); toyotaracing.com (“confusingly similar to Complainant’s mark, because it incorporates Complainant’s entire TOYOTA mark along with the descriptive term “racing”” – NAF 1112557, January 2, 2008); redcrossracing.org (NAF 1327658, July 15, 2010).

ENI and AGIP trademarks have been connected to the motor races for decades. AGIP America, a subsidiary of the Complainant, is a sponsor of a team racing in the US Superbike championship AMA. The Complainant has sponsored Formula One with its trademark AGIP. In more recent times, it has sponsored the Moto GP Prix. One of the trophies of the Moto GP and of Formula One represents the stylized six legged dog that appears on the Complainant trademarks. The Respondent, who has mentioned in his Response he is a “a National Champion in car racing (Croatian Clio Cup Champion) and winner of many car races”, writes about the Complainant’s activities that “all this is very well known to any decent informed motorsport fan, regardless of how old he/she is, or the type and category of racing he/she carries about”.

The combination of the word “racing” with ENI and AGIP trademarks is a clear and accepted reference to the Complainant’s activities, and does not dispel confusion. The Complainant has thus, to the satisfaction of the Panel, shown the disputed domain names are identical or confusingly similar to a trademark in which it has rights (within the meaning of paragraph 4(a)(i) of the Policy).


2. Does the Respondent have rights or legitimate interests in respect of the disputed domain names?

The Complainant first contends that “The Respondent is using the disputed domain names for pay-per-click parking pages, attracting as many Internet users as possible to its websites”. As noted above, the Panel is not convinced that displaying Google AdSense links can qualify as “parking pages”. The Panel also observes that, out of 12 ads, only 2 relate to oil, one for investment in oil and gold, the other one for information on oil and gas global projects. These links are not directing to competitors of the Complainant.

The Complainant contends that “The Respondent has set up two web sites that take advantage of the reputation and long standing history of the two trademarks of ENI also with regard to motor races”. The Respondent acknowledges he did: “Agip (and now Eni) among other brands has great reputation and I just maintained the same flow” (sic).

The Complainant alleges that “The Respondent has not been licensed or otherwise authorized to use any of the Complainant’s trademarks or to apply for or use any domain name incorporating such trademarks”. The Respondent acknowledges he is not, writing “It is absolutely correct and true that I don’t have any license and I am not authorized by Eni S.p.A.”.

It is thus clear that the Respondent does not give evidence that he used the disputed domain names in connection with a bona fide offering of goods or services.

Though the Respondent often refers to the building of a “fan base” or “fan community” for the Complainant, he does not offer any evidence he did. The Respondent repeats the expression “fan base” without showing such a base exists or giving figures. The website appears to be of poor content (videos shot by others and reposted from platforms, rare text) and not active. The Respondent provides statistics showing that there have been visitors to his website (the evidence are partly obfuscated, though), but the figures are extremely low. The Respondent also notes: “I am pretty sure (that can be proved easily) that Complainant visited my websites dozens of time”.

In addition, though the Respondent claims to be loyal to the Complainant and wants to help and/or be a commercial partner, he writes: “The Complainant … hides its incompetence and greed behind its (respectable) greatness, numbers, profit, trademarks and excellence, behind corporate lawyers that execute every acquisition, regardless if it is a Human, country, company, state or government. Exactly that Complainants behavior, Eni S.p.A.’s imperialistic and cruel acquisition of everybody’s and anybody’s property”.

Absent the evidence of legitimate non commercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers, the Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain names (within the meaning of paragraph 4(a)(ii)of the Policy).


3. Have the disputed domain names been registered in bad faith and are they being used in bad faith?

It is extremely hard to find that a domain name has been registered in bad faith (see P.-Y. Gautier, « il est extrêmement difficile de constater, sauf dans les cas où c’est flagrant, la mauvaise foi d’un déposant de nom de domaine », Synthèse, in Commerce électronique et propriétés intellectuelles, Litec / IRPI, 2001, page 159).

In his Response, the Respondent confesses he registered the domain name in bad faith, with sentences such as:
- “Bizzintro intended to earn money for Eni S.p.A. with those websites. Even before purchasing disputed domain names, … bizzintro multiply contacted the Complainant (Eni Croatia, Eni S.p.A. Italy) to inform them about intentions and propose business cooperation”,
- “Intention was clear even before purchasing disputed domain names”,
- “I found many companies online that are compatible with disputed domain names and I found that I may offer my services to relatively broad number of potential business partners with Eni/Agip or “Racing” in their company names. But of course the Complainant was ultimate solution to choose”,
- “When registering my domain names I was well aware (true claim) what Agip and in newer history Eni means in racing community and that is true”.

It is clearly evident clear that the disputed domain names have been registered in bad faith.

It is also clear that the Respondent registered the disputed domain names primarily for the purpose of selling to the Complainant and/or in the aim of being hired by the Complainant. As the Respondent wrote in a February 13 letter: “It would be the only logical step and absolute crucial purchase for Eni S.pA. As this property is really well organized, if and when the transaction starts, I can enroll your staff to keep the best out of it and to maintain long time benefits of this material. Upon your request and according to our arrangement I will personally transfer my knowledge and operating instructions on your people to continue bringing maximal results. To make this conversation short, clear, and in good spirit, Mr. Massimo Cimoli, Francesca Grilli, De Simone & Partners please respond to this in best possible manor and let me know when it would be the most appropriate time to start the transfer and what would be Eni S.p.A budget offer for complete property » (sic).

The Complainant has, to the satisfaction of the Panel, shown the disputed domain names have been registered and are being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy).