A. ARGUMENT:

1. While Complainant argues that its ALLOCATION trademark and the ALLOCATION.COM domain name are identical, that alone is not grounds for a claim of infringement or dilution or grounds to cancel a pre-existing domain name registration. (See, e.g., Hasbro v. Clue Computing, Inc., 66 F.Supp.2d 117 (D.Mass. 1999) available at http://www.Loundy.com/CASES/Hasbro_v_Clue.html; Avery Dennison Corp. v. Sumpton, 189 F.3d. 868 (9th Cir. 1999) available at http://laws.findlaw.com/9th/9855810.html). Complainant has not submitted any evidence that its ALLOCATION mark is famous and deserving of a global monopoly of protection in every top-level domain. In fact, there is no evidence in the record concerning the scope of use or strength of Complainant's mark. Significantly, ComplainantŐs own Web site uses the mark ALLOCATION NETWORK and not the mark ALLOCATION by itself. Under the law of the United States, the jurisdiction in which the domain name registrar (Network Solutions, Inc.) operates, the Complainant would not even be allowed registration of the ALLOCATION mark based on its domain name/Web site use (see http://www.uspto.gov/web/offices/tac/notices/guide299.htm)[FOOTNOTE 1] Furthermore, the ALLOCATION.COM trademark application that Complainant bases its Complaint on was not filed until two weeks before the commencement of this dispute. Additionally, according to the Complaint, the Complainant merely has been in business for approximately three years. According to the ComplainantŐs Web site, the company now only consists of five employees.

2. The Complainant, without any analysis, contends that its claimed trademark and the Respondent's domain name are confusingly similar. There is no likelihood of confusion between the two parties' use of the ALLOCATION name, as portrayed in the Complaint, or as is readily apparent by comparing the sites at http://www.allocation.net/ and http://www.allocation.com/. Further, even if someone looking for Complainant mistakenly accessed the Respondent's Web site, any confusion would be quickly dispelled. U.S. courts have addressed "original interest confusion," whereby someone is confused as to the source of goods or services by a domain name, only to have that confusion dispelled upon looking at a Web site located at that domain, and found that it is not actionable under U.S. trademark dilution law (see e.g. Avery Dennison Corp. v. Sumpton).

3. Furthermore, it is instructive to note that Respondent's domain name is based on a common word in the English language. Due to the geographical nature of trademarks, this domain name could be used by a trademark holder in any country in any of 42 international classes of goods and services as a trademark, as well as for non-trademark uses. Thus, there are thousands of potential claimants who could claim rights to this particular domain name. To allow Complainant, which already has its mark in the .NET, .ORG and .DE top level domains, to take this domain name from an existing registrant, is to give a five-person company in Germany rights to a common English word in potentially all of nearly 200 top level domains without any proof of the strength of its mark, and without any showing of confusion or dilution. Such broad global protection for a single-country trademark registration of unproven strength and questionable use in its registered form would be to extend trademark rights to an unprecedented and unconscionable extent without any showing of harm by the recipient of such largess (other than the need to pay a legitimate entrepreneur's asking price rather than a $1,000 dispute resolution filing fee). Furthermore, there is little principled reason as to why any other interested party could not decide on a domain name to take away, file a trademark application and, regardless of the strength or use of its "mark," claim similar protection in all top-level domains world-wide. The magnitude of this problem is substantial. A Wired News article in April, 1999 found that of 25,500 English dictionary words checked, 23,740 of them had already had the matching .COM domain name registered (http://www.wired.com/news/technology/0,1282,19117,00.html). Of course, this problem is not limited to English words, and it is further exacerbated by Complainant's claim of right to only a portion of the mark it is in fact using.

4. Claimant next states in the Complaint that "[i]t is apparent, that the Respondent has no right or legitimate interest in respect of the domain name." No support is offered for this claim. The Respondent is the legitimate registrant of the domain name and is currently using the name for a portal site.

5. Claimant states that because the domain name is offered for sale, the registration is therefore in bad faith. The registration, however, is in the name of a man originally from the United States living in the Philippines for a word from the English dictionary registered before the Claimant, a small German company, ever obtained a trademark registration. Complainant's only use of its claimed mark that would be visible to someone living in the Philippines is a use on a German language Web site (a language which respondent does not speak) where the mark is used as ALLOCATION NETWORKS, not as ALLOCATION. Respondent had no knowledge of the Claimant when registering the ALLOCATION.COM domain name. All of the domain names registered by the Respondent, as can be seen at http://www.domainclub.com/domains/, are common words and short phrases and misspellings of the same. Respondent has not intentionally registered as a domain name any trademark holder's mark. Unlike a "cyber-squatter," Respondent has not registered a trademark holder's name in an attempt to extort money from the trademark holder by attempting to sell the domain name to the trademark holder. In fact, it is not readily apparent from the Web site hosted at the ALLOCATION.COM domain name that the name is even for sale--only after a deliberate investigation can this information be obtained. Respondent has merely registered common words and phrases that he believes may have value. There is nothing improper or unlawful in doing so. He is not a pirate intent on holding corporate trademarks for ransom, but rather an entrepreneur speculating as to a domain name's value to unknown parties. To the best of Respondent's knowledge, such conduct has never been considered by any court to be a bad faith registration of a domain name.

6. Claimant finds Respondent's conduct objectionable because he registered the domain name in close proximity to Complainant's search of the WHOIS database maintained at http://www.internic.com [sic]. No evidence is presented as to when such an inquiry was made by Claimant, when any registration request was submitted, or how "respondent got information about the search of the complainant concerning this domain name and grabbed [the domain name]." Such unsupported accusations of multinational criminal conduct are mere fantasy and do not provide a basis for stripping Respondent of his domain name.

7. The ICANN Uniform Domain Name Dispute Resolution Policy (available at http://www.icann.org/udrp/udrp-policy-24oct99.htm) defines elements indicative of bad faith. None of these elements apply to Respondent's conduct. Respondent has not acquired the domain name primarily for the purpose of selling the domain name registration to the Complainant. Indeed, Respondent has never directly solicited the Complainant to purchase the domain name. He also has not registered the name in order to prevent the owner of the trademark from reflecting the mark in the corresponding domain name. Not only does the Complainant possess three ALLOCATION domain names, it also has a registration for ALLOCATIONNETWORK.COM, the mark it is actually using. See http://www.networksolutions.com/cgi-bin/whois/whois?STRING=allocationnetwork.com. Respondent denies the name was registered to disrupt the business of a competitor. Claimant and respondent not competitors and Respondent had never heard of the Complainant until shortly before this dispute was filed. Finally, Respondent has no intention to attract or confuse those looking for Complainant, nor is there an attempt to imply any affiliation or endorsement of Respondent by Claimant.

8. Claimant also argues that because the address listed in the domain name registration is fictitious, and to the extent Claimant contends that by offering the domain name for sale it is somehow indicative of Respondent's bad faith in registering the domain name. Again, merely registering a domain name that corresponds to a common word and being willing to sell the name to someone else does not constitute bad faith or trademark infringement or dilution. Furthermore, it is hard to see what the significance of a fictitious address is in this matter, as the Complainant was able to contact the Respondent without difficulty in order to serve its Complaint at an address listed in the WHOIS registration for the domain name in question. Respondent has recently moved from Portland, Oregon in the U.S. to Angeles City in the Philippines. Upon learning of the insufficient information contained in the domain name registration, he changed the WHOIS database entry to reflect his current address and notified both the Complainant and WIPO.

9. Claimant states that "it goes without saying that the respondent has not used the domain-name in question for more than two years for connecting any home page." The Internet, however, is not synonymous with the World Wide Web. A Web page is one protocol of many and is not the defining measure of use of a domain name, nor is it the sole indication of right to a domain name. In any case, the domain name is currently in use as a portal site.

10. In sum, Complainant has offered no proof of its allegations, no explanation as to why the facts presented constitute bad faith, has presented no showing of harm or potential harm other than the need to pay more to obtain a name it wants to supplement those it already has obtained, and has made no showing of why it is deserving of unprecedented global protection in a portion of the mark it is actually using thereby overriding Respondent's existing interest in a domain name he fairly and in good faith registered.

B. FORMALITIES:

Steve Gregory
P.O. Box 52887
Angeles City, 2009
Philippines

E-Mail: gregory@manilaonline.com
Fax: 63 + 45 + 892-0052

David J. Loundy
Dancona & Pflaum LLC
111 E. Wacker Drive, Suite 2800
Chicago, IL 60601 USA

E-Mail: dloundy@dancona.com
Fax: (312) 602-3000

14. No other legal proceedings have been filed against or terminated in connection with or relating to the domain name that is the subject of the Complaint.

15. A copy of this Response has been forwarded to the Complainant.

16. Respondent certifies that the information contained in this response is to the best of Respondent's knowledge complete and accurate, that this Response is not being presented for any improper purpose such as to harass, and that the assertions in this Response are warranted under these rules and the applicable law, as it now exists or it may be extended by a good faith and reasonable argument.

Respectfully submitted,

Steve Gregory

By: /s/ David J. Loundy
One of His Attorneys

Footnote 1: It is worth pointing out that although the Claimant states that it is aiming its services "towards the United States of America and other countries worldwide" and states an intent to obtain a U.S. trademark registration. Some of its listed goods and services, however, are in violation of U.S. law. See 17 U.S.C. Section 109(b)(1)(A) available at http://www4.law.cornell.edu/uscode/17/109.text.html.