the term NTMAIL seems inconclusive, as it refers as often as not to the Complainant or the Respondent’s products as to a descriptive or generic-type use referring to an article. Therefore, we cannot say that the Complainant’s asserted trademark NTMAIL is generic.
This does not mean, however, that the Complainant has established that it has rights in the asserted mark NTMAIL. The evidence the Respondent submitted certainly proves that the individual terms of the Complainant’s asserted mark are at best descriptive, and hence unprotectible without proof of acquired distinctiveness or secondary meaning. 2 McCarthy on Trademarks, § 15:2 (2000). The Complainant’s only evidence on the issue of acquired distinctiveness or secondary meaning are in the nature of product reviews or web sites offering the Complainant’s products for sale. This evidence falls short of proving that the terms have acquired secondary meaning or distinctiveness in the eyes of the purchasing public.
The Panel is not satisfied that the Complainant has met the requisite standard of proof that the combination “NT MAIL SERVER” is strongly associated with and distinctive of the Complainant. In light of this, the Panel is unable to find that the disputed domain name is confusingly similar or identical to a trademark or service mark in which the Complainant has rights.
Given this finding, it is not strictly necessary for the Panel to go further. However, for the sake of completeness, the Panel does make findings on the other elements of the Policy.
Respondent has no rights or legitimate interests in respect of the domain name
The second burden on the Complainant is to establish that the Respondent has no rights or legitimate interest in the disputed domain name. The Policy outlines (paragraph 4(c)) circumstances which, if found by the Panel to be proved, shall demonstrate the Respondent’s rights or legitimate interest in the domain name. These circumstances are:
(i)Before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with the bona fide offering of goods or services; or
(ii)The Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii)The Respondent is making a legitimate non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent has stated that it registered the disputed domain name on March 2, 1998. Since June 1998 the Respondent has sold the Complainant’s products via its website.
The Respondent’s first notice of this dispute was the Complainant’s letter of December 4, 2001. Between March 2, 1998, and December 4, 2001, the Respondent was operating its website at <ntmailserver.com> with the full knowledge and apparent consent of the Complainant. The Complainant even provided a link from its own