WIPO Arbitration and Mediation Center

Complainant is AT&T Corp. ("AT&T"), 295 North Maple Avenue, Basking Ridge, NJ 07920-1002, USA.

Respondent is Randy Thompson ("Thompson"), 88 Perry Street #502, San Francisco, CA 94107, USA.

The domain name in issue is: <attmsn.com> (the "Domain Name").

The registrar is Register.com (the "Registrar"), 575 8^th Avenue – 11^th Floor, New York, NY 10018, USA.

The WIPO Arbitration and Mediation Center (the "Center") received AT&T’s Complaint by e-mail on June 26, 2001, and in hard copy on June 28, 2001. The Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). Complainant made the required payment to the Center.

On June 28, 2001, the Center transmitted via e-mail to the Registrar a request for registrar verification in connection with this case. On June 28, 2001, the Registrar transmitted via e-mail to the Center its response, confirming that (1) a copy of the Complaint was sent to it by Complainant as required by Supplemental Rule 4(b); (2) the Domain Name was registered through it; (3) Respondent is the current registrant of the Domain Name; (4) the Organization and Administrative Contact for the Domain Name is "Randy Thompson/For Sale," and the Technical and Zone Contact for the Domain Name is the Registrar [1]; (5) the Policy applies to the Domain Name; and (6) the Domain Name is active.

On June 29, 2001, the Center transmitted the Notification of Complaint and Commencement of Administrative Proceeding, together with a copy of the Complaint, via e-mail with copy by courier (FedEx) to Respondent and to the Registrar [2]. The Center advised that Respondent’s Response was due by July 18, 2001, pointed out that the Response should be in accordance with the Rules and the Supplemental Rules, and described the consequences of a default if the Response was not sent by the due date. The Center also noted that the Complainant had elected for a single member panel to decide this matter.

The requirements of Rule 2(a) having been satisfied, the formal date of the commencement of this administrative proceeding, pursuant to Rule 4(c), is June 29, 2001.

On June 30, 2001, Respondent served, through his attorney, a Request for Preparatory Conference, a Request for Hearing, and Interrogatories, on counsel for Complainant.

No Response was received from Respondent by the July 18, 2001, deadline. On July 20, 2001, the Center transmitted to Respondent, via e-mail and courier (FedEx), a Notification of Respondent Default. The Center advised Respondent that (a) Respondent had failed to comply with the deadline for submission of its Response and (b) the consequences of default, including (1) appointment of a single member panel (per the Complainant’s request); (2) the Panel would be informed of Respondent’s default and would decide in its sole discretion whether to consider a Response if submitted later; and (3) notwithstanding the default, the Center would continue to send all case-related materials to Respondent.

On July 21, 2001, Respondent notified the Center that he believed a Response had been submitted by his attorney, and requesting consideration by the Panel. On July 23, 2001, the Center notified Respondent that no Response (or other correspondence) had been received from Respondent or his attorney by the deadline of July 18, 2001, and that his message would be forwarded to the Panel. On July 25, 2001, Attorney Cliff Capdevielle notified the Center that he would be representing Respondent in this matter, represented that he had not received a copy of the Notification of Complaint from the Center, and requested that the Center extend the deadline for a Response until August 18, 2001. In its discretion pursuant to Rule 5(d), the Center declined, on July 26, 2001, to grant the requested extension. The Center notified Respondent that any Response submitted nevertheless could be considered by the Panel in the Panel’s discretion.

On or about July 25, 2001, Respondent (through his attorney) submitted a Response. On July 26, 2001, Complainant objected to consideration of the Response as untimely filed, and to Respondent’s Request for Preparatory Conference, Request for Hearing, and Interrogatories, as improper under the applicable rules [3]. On August 3, 2001, Respondent’s attorney replied to Complainant’s objection, representing that although he had received an unofficial copy of the Complaint from Complainant’s counsel in a timely fashion, he did not receive an official copy from the Center until after receiving the Notification of Respondent Default. Respondent’s attorney also stated that Respondent did not provide him with the official Complaint because he (Respondent) assumed an official Complaint would be sent directly to the attorney.

On August 1, 2001, the Center advised the parties, in accordance with Rule 6(f), of the appointment of Michael Albert, the undersigned, as the Panelist in this case. Pursuant to Rule 15(b), the Center further informed the parties that, absent exceptional circumstances, the Panel would forward a decision to the Center by August 15, 2001.

On August 1, 2001, the Center transmitted the case file to the Panel.

The Complaint is based on Complainant’s alleged ownership of rights to the mark AT&T, which Complainant claims to have used for telecommunications goods and services for over a century.

Complainant owns numerous federal registrations for the AT&T mark and other marks containing the term AT&T, as well as the term ATT (without an ampersand). Complainant provided the Panel with copies of a number of its Certificates of Registration for AT&T as a trademark or service mark, including Registration Nos. 2,076,846, 1,293,305, 1,298,084, 1,314,059, 1,353,769, 1,542,937, 1,550,818, 1,688,845, 2,049,544, 1,331,847, 1,342,197, 1,367,469, 1,493,970, 1,699,744, and 1,970,579. Complainant also provided the Panel with copies of its Certificates of Registration and/or printouts from the U.S. Trademark Electronic Search System ("TESS") of the United States Patent and Trademark Office ("USPTO"), for numerous other marks including 1 800 CALL ATT, CAMP ATT, 1 800 ATT-GIFT, and ATT.NET.

The earliest of these registrations, U.S. Reg. No. 1,293,305, is for the word mark AT&T in block letters. A block-letter registration is the broadest claim to a word mark, in that it is "not … restricted to any particular form or type." Exxon Corp. v. National Foodline Corp., 579 F.2d 1244, 1247 (C.C.P.A. 1978). This registration issued in 1984 for digital network telecommunications services, and claims a date of first use in September, 1983.

Other registrations owned by Complainant for the AT&T or ATT marks or variants thereof cover other telecommunications products and services, including products and services related to the Internet.

The dispute is within the scope of the Policy, and the Panel has jurisdiction to decide the dispute. A copy of the Registrar’s Services Agreement, which incorporates the Policy by reference, is appended as Annex 2 to the Complaint [4].

In Paragraph 10 of its Complaint, Complainant avers that each of the three requirements of Paragraph 4(a) of the Policy have been satisfied.

Complainant asserts as follows:

- That Complainant has been selling telecommunications goods and services for over a century under the marks AT&T and ATT, and phrases that combine AT&T or ATT with other words.

- That the AT&T brand has substantial commercial value.

- That Complainant owns and operates a large Internet Service Provider ("ISP") at the web address <www.att.net> serving nearly two million customers in the United States.

- That Complainant has rights in the marks AT&T, ATT, and phrases combining AT&T or ATT with other words.

- That Microsoft Corporation ("Microsoft") has rights in the mark MSN and related marks, and operates the Microsoft Network (also known as MSN), serving over three million subscribers.

- That in January, 1999, media reports indicated that Complainant was allegedly in discussions with Microsoft to buy all or part of the Microsoft Network.

- That the Domain Name is confusingly similar to Complainant’s and Microsoft’s marks, including AT&T, ATT.NET and MSN.

- That Respondent combined Complainant’s mark with Microsoft’s mark (and registered the combined mark as the Domain Name) "in bad faith for the purpose of capitalizing on the presumed relationship between the two companies, and speculating on the possibility of a business combination between the two companies."

- That Respondent has no legitimate interest in the Domain Name because (1) Respondent is not authorized to use Complainant’s mark or Microsoft’s mark; (2) Respondent does not own rights in marks comprising AT&T, ATT, MSN or ATTMSN.COM; (3) Respondent has not been commonly known by the Domain Name and does not run any enterprise commonly known by the Domain Name; and (4) Respondent is not making legitimate non-commercial or fair use of the Domain Name.

- That Respondent’s intent in registering the Domain Name was to divert Internet traffic to his web site; or to sell it for substantial profit; or to "lock it up" based on speculation that Complainant might purchase all or part of the MSN.

As noted above, the Respondent is in default pursuant to Rule 5(e), Rule 14 and Supplemental Rule 7(c) because no Response was received from Respondent by the July 18, 2001, deadline.

The Center’s denial of Respondent’s request for an extension to file a Response in this proceeding was a proper exercise of the Center’s discretion pursuant to Rule 5(d).

In the event of a belated Response, the Panel’s default course of action, pursuant to Rule 14(a), is to proceed to decision based only on the Complaint. The Panel may, in its discretion, consider the Response if "exceptional circumstances" exist. In addition, the Panel has broad general powers under Rule 10 (a) to "conduct the administrative proceeding in such manner as it considers appropriate in accordance with" the Policy and the Rules. Specifically, the Panel is required under Rule 10(b) to ensure "that each Party is given a fair opportunity to present its case." Under Rule 10(d) the Panel is empowered to "determine the admissibility, relevance, materiality and weight of the evidence."

On review of the record in this proceeding, the Panel is not convinced that Respondent demonstrated "exceptional circumstances" warranting an extension of time to file a Response pursuant to Rule 14(a) [5]. (Indeed, the Respondent does not even contend, in any of his submissions, that exceptional circumstances exist here.)

Although the Panel declines to find exceptional circumstances in this case, however, it will nevertheless consider Respondent’s Response brief pursuant to the general powers and responsibilities set out in Rule 10. Denial of an opportunity for response would be a rather drastic step which, in the Panel’s opinion, should be undertaken with great care in view of the exhortation of Rule 10(b) that each party be "given a fair opportunity to present its case." [6]

In his Response, Respondent asserts as follows:

- That the Complaint does not set out sufficient evidence that Respondent’s registration of the Domain Name was carried out in bad faith. Specifically, the Complaint does not show that the Respondent (1) intended to divert the Complainant’s customers to the Respondent’s web site; (2) used any false contact information or aliases; or (3) has a history of selling domain names containing the Complainant’s registered marks.

- That the Domain Name is unlikely to be confused with trademarks owned by Complainant because there are approximately 11,000 registered domain names beginning with the letters ATT.

- That the Complainant is not the owner of a registration for the mark ATT (i.e., without an ampersand) [7], is not the owner of any business or service named ATTMSN, has no rights to the mark ATTMSN, and has no rights to the mark MSN.

- That this Panel lacks jurisdiction over this dispute because Microsoft is an "indispensable party."

- That the factors set out by the Ninth Circuit Court of Appeals (United States) for consideration in determining the likelihood of confusion between two trademarks favor a finding that confusion is unlikely. Specifically, that (1) Strength of mark. Complainant’s mark ATT (to the extent Complainant has rights in said mark) is weak; (2) Use of mark. Complainant does not use the marks ATT, MSN or ATTMSN; (3) Similarity of marks. Complainant’s mark ATT is not similar to the Domain Name ATTMSN which is "a much longer six-syllable word"; (4) Actual confusion. Complainant has not alleged actual confusion in the marketplace; (5) Knowing adoption. Respondent did not knowingly adopt Complainant’s mark; (6) Distribution channels. Respondent does not sell goods or services in competition with those of Registrant; and (7) Market factors and product lines. Complainant and Respondent "are in entirely different businesses" and do not "compete."

As noted above, on June 30, 2001, Respondent served a Request for Preparatory Conference, a Request for Hearing, and Interrogatories. Complainant filed a Motion for Leave to Oppose Respondent’s Requests and Interrogatories, together with an Opposition brief, on July 5. Complainant reiterated the substance of its Opposition in a communication with the Center on July 26, 2001.

Aside from the Complaint and the Response, additional submissions to the Panel are not contemplated by the Rules, except when specifically requested by the Panel pursuant to Rule 12. While the Panel presumably has the power to consider such additional submissions pursuant to Rule 10(a), at most such consideration is discretionary.

Respondent has requested a Preparatory Conference and a Hearing. In-person hearings are to be denied pursuant to Rule 13 unless the Panel, in its discretion, finds that exceptional circumstances exist warranting such a procedure. In this case, the Panel finds that the Complaint and the Response provide sufficient information from which the Panel may render its decision [8]. To the extent that Respondent seeks an order from the Panel convening such a conference or hearing, the request is denied.

The Panel also finds that Respondent’s service of Interrogatories or other discovery requests is improper under the Rules, which make no provision for discovery.

In view of the Panel’s findings with respect to Respondent’s Motions and Interrogatories, an opposition brief from Complainant is unnecessary, and Complainant’s Motion for Leave to Oppose is accordingly denied as moot.

Having disposed of the procedural issues raised by the parties, the Panel now proceeds to consider this matter on the merits in light of the Complaint, the Response, the Policy, the Rules, the Supplemental Rules, and other applicable legal authority, pursuant to Rule 15(a). In the Panel’s view, given that this dispute involves a domain name registered in the United States and given that both parties appear to be based in the United States, applicable authority shall include relevant principles of United States trademark law.

Paragraph 4(a) of the Policy provides that Complainant must prove, with respect to the Domain Name, each of the following:

(i) The Domain Name is identical or confusingly similar to a trademark in which Complainant has rights; and

(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy sets out four non-exclusive, but illustrative, circumstances or acts that for purposes of Paragraph 4(a)(iii) above would be evidence of the registration and use of a domain name in bad faith.

Paragraph 4(c) of the Policy sets out three illustrative circumstances, any one of which, if proved by Respondent, would demonstrate Respondent’s rights or legitimate interests in the Domain Name for purposes of Paragraph 4(a)(ii).

Complainant has proven that it is the owner of trademark rights in the mark AT&T, going back at common law for many decades, and continuing through the date of the Complaint, and also has many federal registrations, which have become incontestable pursuant to the provisions of 15 U.S.C. § 1065. Complainant’s registrations of its trademarks on the Principal Register of the USPTO establish a presumption of validity of the marks under United States law. See 15 U.S.C. § 1057(b); Avery Dennison v. Sumpton, 189 F.3d 868 (9th Cir. 1999). Additionally, the registrations constitute constructive notice to all other parties of Complainant’s ownership of the marks. See 15 U.S.C. § 1072.

Complainant has also proven that it owns trademark rights in the mark ATT (without an ampersand), particularly for goods and services related to telecommunications and/or the Internet. In particular, as noted above, Complainant has registered several marks containing the term ATT in combination with other words, phrases or numbers. Among these is the mark ATT.NET (for, inter alia, electronic mail and providing multiple user access to global computer networks).

While the Panel acknowledges Respondent’s argument that the Complainant’s claims to ATT (without an ampersand) are weaker than its claims to AT&T (with an ampersand), the Panel agrees with the distinguished panel in AT&T Corp. v. WorldclassMedia.com, WIPO Case No. D2000-0553 (WIPO, July 28, 2000), that "an ampersand is not a valid character in a domain name and its absence is not sufficient to prevent the [domain name] in dispute from being confusingly similar to Complainant’s marks."

In comparing Complainant’s mark(s) to the Domain Name, it is well established that the generic top-level domain, in this case ".com," must be excluded from consideration as being a generic or functional component of the Domain Name. See Sporty's Farm v. Sportsman's Market, 202 F.3d 489, 498, (2d Cir. 2000).

While the remaining terms, ATT and ATTMSN, are not identical, the Panel finds that they are confusingly similar. The Panel is persuaded that the combination of the mark ATT with the mark MSN is likely to compound rather than obviate confusion, because MSN and AT&T provide similar services from their respective web sites. Indeed, the fact that Respondent registered the Domain Name following media reports about a possible business deal between MSN and AT&T is some evidence that the Domain Name was intended to be a combination of the two marks [9].

This Panel also agrees with its predecessor panels that simply combining one trademark with another does not obviate a likelihood of confusion. See, e.g., Time Warner, Inc. and EMI Group, PLC v. CPIC Net, WIPO Case No. D2000-0433 (WIPO, September 15, 2000). This is particularly true where (as here) the two marks are used for similar products and both have a strong connection to the Internet [10].

The Panel disagrees with much of Respondent’s analysis of the Ninth Circuit’s factors [11] (except that portion of Respondent’s analysis that is based on a lack of use of the Domain Name):

(1) Strength of mark. Complainant’s mark ATT is quite strong, in light of Complainant’s evidence that includes length of use, number of users (in the millions), substantial investment in the mark, and other considerations; (2) Use of Mark. Complainant’s mark and the Domain Name are both used or intended for use on the Internet; (3) Similarity of marks. There is a strong similarity between Complainant’s mark and the Domain Name. Indeed, the Domain Name appears to be the concatenation of Complainant’s mark with the mark of another company with whom Complainant has been closely associated in press coverage; (4) Actual confusion. On this factor, the Panel agrees with Respondent that no actual confusion has been shown. U.S. courts have noted, however, when deciding trademark cases, that actual confusion is unlikely to be found, and its absence therefore should not be deemed significant, where (as here) the contested usage is comparatively recent or of limited scope; (5) Knowing adoption. Complainant’s federal registrations constitute constructive notice of its marks to all; and Respondent has not denied that it was familiar with the ATT and MSN marks and the companies that own those marks; (6) Distribution channels. While Respondent may be right that there is at present no apparent overlap in distribution channels, absent evidence of what Respondent’s business consists of or how it operates, any use of the Domain Name would occur on the Internet, which overlaps with the channels of distribution of Complainant’s goods and services, particularly through its <att.net> domain name; (7) Market factors and product lines. Inasmuch as neither party has brought to the Panel’s attention any evidence of what Respondent’s product lines or market consists of, there is no evidence of overlap.

In the Panel’s view, a balancing of the above factors would favor a finding of a likelihood of confusion to the extent any use is made of the Domain Name.

The Respondent was unable to point to any evidence of his rights in the Domain Name. Respondent offered no evidence that he uses the Domain Name, nor that he has ever used the mark ATTMSN in connection with any bona fide offering of goods or services, or for any other purpose. It does not appear than any use is being made of the Domain Name - no web site exists at that address and Respondent has not claimed or shown that it makes any other use of the Domain Name [12]. See Paragraph 4(c)(i) of the Policy. Respondent also does not appear to be known by the name ATTMSN. See id. at Paragraph 4(c)(ii). Finally, Respondent does not claim to be making a legitimate non-commercial or fair use of the Domain name. See id. at Paragraph 4(c)(iii). Accordingly, the Panel concludes that Respondent has no rights or legitimate interests in the Domain Name.

Complainant’s third hurdle is to establish that Respondent has registered and used the Domain Name in bad faith.

Paragraph 4(b) of the Policy sets out four illustrative circumstances of the registration and use of a domain name in bad faith. The first is acquisition of 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 [registrant’s] documented out-of-pocket costs directly related to the domain name."

In this case, the Panel finds evidence of this type of bad faith. First, the fact that Respondent lists his contact information in the Registrar’s WHOIS database as "Randy Thompson/For Sale" strongly suggests that the Domain Name (which is not used by Thompson) is indeed "for sale." Respondent declined to address this issue in his Response. Respondent’s silence on this issue suggests that an adverse inference may be appropriate. While no evidence directly establishes the amount for which Respondent sought to sell the Domain Name, it is a fair inference from the fact that he listed it "for sale" simultaneously with his registration of it that his intent was to obtain consideration in excess of his registration costs.

That this usage was Respondent’s "primary" purpose follows from the fact that he does not appear to have had any other purpose — he is making no legitimate use of the Domain Name, and has not established any specific intent to do so. Taken together with the fact that he undoubtedly had actual knowledge (a fact he does not deny), and at a minimum had constructive knowledge (as a result of the registrations), of the famous marks contained in the Domain Name, it is difficult to infer any other purpose than that of selling it to Respondent or other holders of rights in the said marks (or possibly establishing a domain name designed to divert business from them, which would be another type of bad faith). "Actual or constructive knowledge of the Complainant’s rights in trademarks is a factor supporting bad faith." Ticketmaster Corp. v. Spider Web Design, Inc., Case No. D2000-1551 (WIPO, February 4, 2001).

Second, the fact that Respondent has made no use of the Domain Name himself further supports an inference of bad-faith registration on the facts of this case. Had he intended to make some good-faith use of the mark, one would expect him to have done so, or at least explained the failure to do so in his Response. See Telstra Corp. v. Nuclear Marshmallows, Case No. D2000-0003 (WIPO, February 18, 2000) (registration together with "inaction" can constitute bad faith). Numerous panels have followed this decision. See Ticketmaster (citing eight such cases). While this Panel is not prepared to conclude that nonuse of a domain name will automatically constitute bad faith, it is, on the facts of this case, a factor adding to the weight of the evidence of bad faith with respect to this Domain Name, particularly given the fame of the mark and Respondent’s failure to offer any plausible explanation or evidence of any good-faith use.

Additionally, as noted above, see supra note 9, the fact that Respondent registered the Domain Name following media reports about a possible business deal between MSN and AT&T is some evidence that Respondent intended to profit from the Domain Name by selling it to either AT&T or MSN, or both.

In short, based on the record before the Panel, Respondent does not appear to have made any use of the Domain Name other than to offer it for sale. Accordingly, the Panel finds bad faith of the form illustrated by the first example in Paragraph 4(b) of the Policy.

The second illustration of bad faith in the Policy occurs when the registrant registers the domain name to prevent the trademark owner from reflecting the mark in a corresponding domain name, particularly when Respondent has engaged in a pattern of such conduct. Complainant has made no allegation that it has been unable to use the trademark in a domain name (other than the Domain Name at issue). Nor does Complainant allege any pattern of improper registrations by Respondent. Accordingly, the Panel does not find this illustration applicable here.

The third illustration of bad faith is registration "primarily for the purpose of disrupting the business of a competitor." On the facts of this case, there is no evidence that Respondent is a competitor of Complainant, and Respondent’s registration of the Domain Name does not appear to have disrupted Complainant’s business. Accordingly, the Panel does not find this illustration applicable either.

The fourth illustration, use of the domain name in an effort to attract, for commercial gain, Internet users to another web site, does not appear to be applicable here, there being no active web site located at the Domain Name, and no evidence of intent to create one.

In sum, the Panel concludes that Respondent has registered and used the Domain Name in bad faith, as exemplified by illustration (i) in Paragraph 4(b) of the Policy.

In light of the findings and analysis by the Panel, the Panel decides that Complainant has met its burden of proving: (1) the Domain Name is confusingly similar to Complainant’s trademark(s); (2) Respondent has no rights and no legitimate interests in respect of the Domain Name; and (3) the Domain Name has been registered and is being used by Respondent in bad faith.

Accordingly, pursuant to Paragraph 4(i) of the Policy and Rule 15, the Panel requires that the Domain Name be transferred to Complainant.

Michael A. Albert
Sole Panelist

Dated: August 15, 2001

Footnotes:

1. The Registrar provided a printout of the information contained in its WHOIS database for the Domain Name, including the Respondent’s postal address, telephone number and e-mail address.

2. The Center also sent the same items to the required e-mail addresses as set out in Rule 2(a).

3. Complainant also filed a more formal Opposition to Respondent’s Request for Preparatory Conference, Request for Hearing, and Special Interrogatories on July 5, 2001.

4. In Section IV of his Response, Respondent argues that the Panel lacks jurisdiction to decide this matter because the Panel "may not make a ruling regarding the rights of Microsoft Corporation with regard to the disputed domain name unless Microsoft Corporation is a party to this dispute." Because disposition of this matter does not require an adjudication of any rights of Microsoft Corporation in the Domain Name, Respondent’s argument is moot and poses no obstacle to the Panel’s jurisdiction. Should Microsoft Corporation choose to contest any registration or use of the Domain Name that may hereafter be made by Complainant, Microsoft would be free to do so, and nothing herein is intended to prejudge how any such dispute might be resolved.

5. The Panel is confused by Respondent’s argument that his attorney did not receive timely notice of this administrative proceeding. First, Rule 2 requires that the Center "employ reasonably available means calculated to achieve actual notice to the Respondent" (not the Respondent’s attorney). The Center complied fully with Rule 2 on June 29, 2001. Respondent’s attorney first made his representation of Respondent known to the Center on July 25, 2001. After that time, the Center addressed its communications to Respondent’s attorney as requested. Before that time Respondent’s attorney was not known to the Center (his name did not appear in the WHOIS database entry for the Domain Name) and he therefore could not reasonably expect to receive notifications from the Center. In any event, the Respondent’s attorney admitted that he had received an "unofficial copy" of the Complaint in a timely fashion from the Complainant. Although the Rules do not require notice to a Respondent’s representative, in this case the Respondent’s attorney did receive such notice. The Respondent’s notice argument is unconvincing.

6. The Panel additionally notes that, under Rule 14(b), the Panel is entitled to "draw such inferences … as it considers appropriate" from Respondent’s failure to comply with the deadline set forth in Rule 5(a). In the exercise of its discretion, however, the Panel declines to draw inferences from Respondent’s tardiness.

7. Respondent provided the Panel with TESS printouts for a number of ATT marks owned by parties other than Complainant for various goods and services (but not for telecommunications).

8. Indeed, as noted above, the Panel is not obligated to consider the Response, but does so out of a sense of caution and fairness to Respondent.

9. Mitigating the weight of this evidence is the fact that Respondent did not register the Domain Name until January 10, 2000, approximately a year after Complainant contends the media began to report on a potential business deal between AT&T and MSN. On the other hand, Respondent offered no explanation in his Response to rebut the inference made by Complainant of a relationship between those media reports and Respondent’s registration of the Domain Name. Respondent similarly offered no reason why he chose the Domain Name to the exclusion of other possible words or phrases. In its discretion pursuant to Rule 10(d), the Panel finds it appropriate to accord some evidentiary weight to the timing of Respondent’s registration of the Domain Name (i.e., after the media reports referred to by Complainant).

10. The Panel is unpersuaded by Respondent’s argument that confusion is unlikely because there are many registered domain names beginning with the letters ATT. It is not the mere presence of the letters ATT in the Domain Name that makes confusion likely. Rather, it is the fact that the letters ATT stand together with another well-known mark, and both marks are identified with the Internet (and with one another pursuant to a possible business deal). Domain names consisting of words or phrases beginning with the letters ATT (such as <www.attitude.com> or <www.attest.com>) are far less likely to create confusion than <www.attmsn.com>.

11. Nothing herein is meant to imply that Ninth Circuit law necessarily applies to this case; however, the law of other U.S. circuits sets forth substantially similar multi-factor tests to be used in analyzing likelihood of confusion for purposes of determining trademark infringement.

12. Respondent did claim to have a "proposed use of the mark," but did not choose to disclose to the Panel what that proposed use was. Respondent also stated that "AT&T and Respondent … are in entirely different businesses," but declined to specify Respondent’s business. Respondent’s vague and conclusory allegations of use or intended use do not support a finding that it has any legitimate interest in the Domain Name.