website to the Respondent’s website.
This situation falls squarely within paragraph 4(c)(i) of the Policy above. The Respondent plainly used the disputed domain name in connection with the bona fide offering of goods and services before any notice to the Respondent of the dispute. The Respondent has a right or legitimate interest in the disputed domain name in terms of the Policy.
We do not base our finding that the Respondent has a right or legitimate interest in the disputed domain name upon the excerpts from the Memorandum of Understanding submitted by the Respondent for the assertion of a contractual relationship between the parties. The excerpts from the Memorandum of Understanding submitted by the Respondent are inconclusive for this purpose. Specifically, the excerpts from the Memorandum of Understanding do not appear to refer to any agreement by the Respondent to host content, to refer sales inquiries, or to link to the Complainant. Rather, the excerpts attached to the Response appear to refer to telephone support for the Complainant’s own products. Although there is a sheet referring to the Complainant’s predecessor’s program, which includes commissions paid on referrals, this page does not refer to the Respondent, nor is it signed by the Respondent. Most important, none of the excerpts refer to the web site or domain name <ntmailserver.com>. Therefore, we do not find the Memorandum of Understanding to be competent evidence of a relationship between the Complainant and the Respondent.
Nevertheless, the circumstantial evidence presented by the Respondent provides ample support for its assertion that there has been a business relationship between the parties concerning the web site and the domain name at issue. These include the e-mails from the Complainant to the Respondent regarding their business relationship and the inclusion of the Respondent’s name in a list of top resellers of the Complainant’s products.
The Complainant has therefore failed to prove this requirement of the Policy.
Domain name has been registered and is being used in bad faith
Paragraph 4(b) of the Policy states:
“For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i)Circumstances indicating that you have registered or you have 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii)You have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or