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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Chernow Communications, Inc. v. Jonathan D. Kimball
Case No. D2000-0119
1. The Parties
1.1 The Complainant is Chernow Communications, Inc., a corporation organized under the laws of the State of Colorado, United States of America, having its principal place of business at 900 20th Street, Boulder, Colorado, United States of America.
1.2 The Respondent is Jonathan D. Kimball, an individual having an address at 167 East 77th Street 3, New York, New York, United States of America.
2. The Domain Name(s) and Registrar(s)
The domain name at issue is <ccom.com>, which domain name is registered with Network Solutions, Inc., based in Herndon, Virginia.
3. Procedural History
3.1 A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on March 3, 2000, and the signed original together with four copies was received on March 6, 2000. An Acknowledgment of Receipt was sent by the WIPO Center to the Complainant, dated March 6, 2000.
3.2 On March 5, 2000, a Request for Registrar Verification was transmitted to the registrar, Network Solutions, Inc. ("NSI") requesting it to: (1) confirm that the domain name at issue is registered with NSI; (2) confirm that the person identified as the Respondent is the current registrant of the domain name; (3) provide the full contact details (i.e., postal address(es), telephone number(s), facsimile number(s), e-mail address(es)) available in the registrar’s Whois database for the registrant of the disputed domain name, the technical contact, the administrative contact and the billing contact; (4) confirm that the Uniform Domain Name Dispute Resolution Policy (the "Policy") is in effect; (5) indicate the current status of the domain name.
3.3 On March 6, 2000, NSI confirmed by reply e-mail that the domain name <ccom.com> is registered with NSI, is currently in active status, and that the Respondent, Jonathan D. Kimball, is the current registrant of the name. The registrar also forwarded the requested Whois details, and confirmed that the Policy is in effect.
3.4 The WIPO Center determined that the Complaint satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Policy, the Uniform Rules, and the Supplemental Rules. The required fees for a three-member Panel were paid on time and in the required amount by the Complainant.
3.5 No formal deficiencies having been recorded, on March 8, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of March 27, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI’s confirmation. In addition, the complaint was sent by express courier to the postal address given. Having reviewed the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." In any event, evidence of proper notice is provided by the evidence in the record of the Respondent’s participation in these proceedings.
3.6 On April 10, 2000, in view of the Complainant’s designation of a three-person panel, the WIPO Center appointed David E. Sorkin and John Terry to serve as Panelists in Case No. D2000-0119, having taken into consideration the panelist nominations provided by the parties and having received Statements of Acceptance and Declarations of Impartiality and Independence from each of them.
3.7 On April 10, 2000, the WIPO Center gave each party a list of five candidates for the Presiding Panelists to rank in order of preference. On April 20, 2000, the WIPO Center notified the parties that M. Scott Donahey had been appointed as Presiding Panelist and set the projected decision date as May 4, 2000. This date was later extended to May 19, 2000.
4. Factual Background
4.1 Complainant registered the trade name "C-Com" in Colorado.
4.2 Complainant is in the business of communications services in connection with telephone calling and Internet access services. Complainant's customers are located throughout the United States. Complainant has expended money to advertise its services in the telecommunications field and Complainant's mark and name have acquired considerable good will and are assets of the business. Complainant has done business under these marks for some years.
4.3 Complainant registered the service mark with the United States Patent and Trademark Office and the registration issued on January 21, 1997, for "communication services, namely long distance telephone services." A copy of the registration was attached to the Complaint as Exhibit A.
4.4 Respondent registered the domain name <ccom.com> on August 14, 1997. A copy of the Whois information concerning the domain name at issue is attached to the Complaint as Exhibit B.
4.5 Respondent has alleged that "a search on the Internet yellow pages directory, Switchboard.com yields [sic] 19 listings for companies with C COM or CCOM in their name, and a search on the popular web site AltaVista.com yield [sic] 11,413 Internet web pages containing the word CCOM."
4.6 Respondent contends that his purpose in registering the domain name at issue was to "reserve for itself a generic domain name that combines the letter 'c,' which is commonly known among Internet users as a short-hand description for 'relating to computers,' and the top level domain ('TLD') 'com,' as an abbreviation for communication and commercial, and is the most popular TLD for commercial entities."
4.7 The domain name at issue resolves to a web site which states "[t]his website is currently under construction . . . for info about partnership opportunities or domain availability, send email to email@example.com. You are visitor number:" followed by a counter which records the number of hits on the site. The majority determined these facts by entering "www.ccom.com" and reviewing the web page to which it resolved. The majority believes that this is the equivalent in a domain name case to the practice of taking judicial notice. See, e.g., the United States Federal Rules of Evidence, Rule 201.
5. Parties’ Contentions
Complainant contends that Respondent has registered as a domain name a mark which is identical to the service mark and trademark registered and used by Complainant, that Respondent has no rights or legitimate interests in respect to the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.
Respondent contends that the Second Level Domain ("SLD") name at issue is different from Complainant's service mark in that the SLD "ccom" does not contain the hyphen in "c-com." Respondent contends that there is no likelihood of confusion, that there is no evidence of actual confusion, that Complainant has failed to prove that Respondent has no rights to or legitimate interests in respect of the domain name at issue, and that Complainant has failed to prove that Respondent has registered and is using the domain name at issue in bad faith.
6. Discussion and Findings
6.1 Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." Since both the Complainant and Respondent are domiciled in the United States, and since United States’ courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States.
6.2 Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,
2) that the Respondent has no legitimate interests in respect of the domain
3) the domain name has been registered and used in bad faith.
6.3 The SDL "ccom" is not a generic name.
6.4 The majority of the Panel rejects the Respondent's contention that the domain name at issue is not identical to the Complainant's service mark. The majority of prior Panel decisions, which are consistent with United States Court decisions dealing with trademarks, have held that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark. The Channel Tunnel Group Ltd. v. Powell, ICANN Case No. D2000-0038; Seek America Networks, Inc. v. Tariq Masood and Solon Signs, ICANN Case No. D2000-0131; Hewlett-Packard Company v. Cupcake City, ICANN Case No. FA0002000093562; InfoSpace.com, Inc. v. Tenenbaum Ofer, ICANN Case No. D2000-0075; EFG Bank European Financial Group SA v. Jacob Foundation, ICANN Case No. D2000-0036; Colgate-Palmolive Company v. Charles Kasinga, ICANN Case No. FA0002000094203; Marriott International, Inc. CafÈ au lait, ICANN Case No. FA0002000093670; Slep-Tone Entertainment Corporation d/b/a Sound Choice Accompaniment Tracks v. Sound Choice Disc Jockeys, Inc., ICANN Case No. FA2002000093636; NFL Properties, Inc. v. Rusty Rahe, ICANN Case No. D2000-0128.
The majority believe that the discussion of the dissent and those cases it cites elevates form over substance . Moreover, this disagreement over what is necessary for a second level domain name to be identical to a trademark or service mark, rather than merely confusingly similar, is more than academic. If the dissent's reasoning were accepted it would be very easy in the future for a prospective cybersquatter, by inserting or deleting a hyphen, to avoid the impact of the holding in Shirmax Retail Ltd./Detaillants/Shirmax LTEE v. CES Marketing Group, Inc., Case No. AF0104 (sometimes referred to as the "thyme.com case").
In the thyme.com case, the Panel found that if it were determined that a domain name is identical to a mark, then such a determination would satisfy the first of the three prong test for bad faith under the Policy, and there is no need to show a likelihood of confusion. If the dissent's reasoning were to be adopted, a would-be cybersquatter could simply eliminate the hyphen in "Hewlett-Packard" or insert a hyphen in "Microsoft" and thereby avoid an automatic finding of bad faith under ¶4(a)(i) of the Policy. Such conduct should not be encouraged.
6.5 Indeed, decisions have held that such conduct is in and of itself evidence of bad faith. "Bad faith on the part of the Respondents is to be inferred from using a hyphen as a device to obtain what is to all intents and purposes a domain name which is identical to Claimant’s service mark and earlier registered domain name." SeekAmerica Networks Inc. v. Tariq Masood and Solo Signs, ICANN Case No. D2000-0131.
6.6 Rule 15(a) provides in pertinent part that the "Panel shall decide a complaint on the basis of the statements . . . submitted . . . ." Complainant has stated in its certified Complaint that "[Respondent] has no rights or legitimate interest in the domain [<ccom.com>] based on [Complainant's] continuous and long prior use of its mark ccom." Complaint, ¶ 9, at 3.
6.7 Complainant's statement shifts the burden to Respondent to rebut this allegation. See, e.g., Policy, ¶ 4(c).
6.8 Respondent failed to make any of the showings described in Paragraph 4(c) of the Policy.
6.9 Moreover, Complainant's registration of its service mark preceded Respondent's registration of the domain name at issue by some seven months. Thus, at the time Respondent registered the domain at issue, it had constructive notice of Complainant's service mark. Finter Bank Zurich v. Gianluca Olivier, ICANN Case No. D2000-0091; Barney's, Inc. v. BNY Bulletin Board, ICANN Case No. D2000-0059. The Panel believes the reason for finding constructive notice is both realistic and practical. It is easy to do a trademark search online to determine whether the domain name which one intends to register is identical or confusingly similar to someone's registered mark. Indeed, Respondent performed similar searches prior to filing his Response, and Respondent found 19 listings for companies with "c-com" or "ccom" in their names and 11,413 Internet web pages containing the word, "ccom." Had Respondent, prior to registration, performed a Trade Mark search or searches similar to those he performed prior to filing the response, and had he been acting in good faith, Respondent might have registered a different name entirely.
6.10 The failure of Respondent to produce evidence sufficient to rebut Complainant's allegations entitles the Panel to conclude that Respondent has no such rights or legitimate interests in respect of the domain name at issue. Ronson, Plc v. Unimetal Sanayal ve T.A.S., ICANN Case No. D2000-0011; Parfums Christian Dior v. QTR Corporation, ICANN Case No. D2000-0023.
6.11 The most difficult question facing the Panel is whether the Respondent has registered and is using the domain name at issue in bad faith. Policy, ¶ 4(a)(iii).
6.12 Respondent's conduct does not bring it within any of the illustrations of bad faith registration and use set out in Paragraph 4(b) of the Policy. However, the majority believes that all of the facts, when taken together, are evidence of bad faith registration and use. Telstra Corporation Limited v. Nuclear Marshmallows, ICANN Case No. D2000-0003.
6.13 As set out, supra, at ¶ 6.8, Respondent had constructive notice of Complainant's registered service mark at the time that Respondent registered the domain name at issue. To the extent that Respondent has established that others have registered "ccom" as a mark in other commercial fields or geographical areas, Respondent would have had constructive knowledge of any marks registered prior to his registration of the domain name at issue.
6.14 The facts that the domain name at issue resolves to a web site at which the SLD name does not appear, that the site indicates it is "under construction," that it is suggested that the Respondent be contacted regarding domain name availability, that a counter is prominently featured which registers the number of visits to the site, and that the Respondent has failed to make a bona fide use of the domain name at issue for almost three years, when taken together constitute bad faith use.
6.15 It has been held that failure to make a bona fide use of a domain name during a two-year period following registration constitutes bad faith. Mondich and American Wine Biscuits, Inc. v. Brown, ICANN Case No. D2000-0004. The majority believes this reasoning is sound. A registrant should be given sufficient time to make preparations to use the registered domain name, but the "parking" of a domain name is evidence of bad faith registration and use. Beverages and More, Inc. v. Glenn Sober Mgmt., ICANN Case No. AF-0092.
6.16 It has also been held that the use of a counter at the web site to which the domain name resolves without other content is tantamount to an offer to sell the domain name. Home Interior & Gifts, Inc. v. Home Interiors, ICANN Case No. D2000-0010. In World Wrestling Federation v. Bosman, ICANN Case No. D1999-0001, the Panel held that under ¶4(b)(i) of the Policy, an offer to sell the domain name at issue for more than the costs incurred constituted evidence of bad faith registration and use.
6.17 Finally, the Panel refers to the decision in Ventura Foods LLC v. Pathi, ICANN Case No. AF-0136, in which the Panel held: "The Respondent must be shown to be using the domain name in bad faith. The Respondent has caused a web page to appear announcing a future web site to internet [sic] users who enter the domain name in their browsers. This is a use of the domain name, and further is a use which gives effect to the bad faith with which the name was registered."
6.18 Under all of the facts and circumstances present here, the majority finds that Respondent has registered and is using the domain name at issue in bad faith.
For all of the foregoing reasons, the majority of the Panel decides that the domain name at issue is identical to the service mark which had previously been registered by the Complainant, that the Respondent has no rights or legitimate interests in respect of the domain name at issue, and that the domain name at issue has been registered and is being used in bad faith. Accordingly, the Panel requires, pursuant to paragraph 4(i) of the Policy, that the domain name at issue be transferred to the Complainant.
M. Scott Donahey
Chernow Communications, Inc. v. Jonathan D. Kimball
Case No. D2000-0119
I respectfully dissent from the decision of the majority of this panel.
The domain name registered by Respondent, "ccom.com," is plainly not identical to Complainant's trademark for long distance telephone services, "C-COM," and under the circumstances presented in this proceeding I would not find it confusingly similar to Complainant's trademark.
A domain name that incorporates an unhyphenated variant of a hyphenated trademark is not identical to the trademark. Draw-Tite, Inc. v. Plattsburgh Spring Inc., ICANN Case No. D2000-0017 (WIPO Mar. 14, 2000) (holding that "drawtite.com" is confusingly similar but not identical to trademarks "DRAW TITE" and "DRAW-TITE"); see also Pep Boys Manny, Moe & Jack of Cal. v. E-Commerce Today, Ltd., ICANN Case No. AF-0145 (DeC May 3, 2000) (holding that "pep-boys.com" is confusingly similar but not identical to trademark "PEP BOYS"); Gateway, Inc. v. Pixelera, Inc., ICANN Case No. D2000-0109 (WIPO Apr. 6, 2000) (holding that "gate-way.com" is confusingly similar but not identical to trademarks "GATEWAY" and "GATEWAY.COM"); A.P. Møller v. Web Society, ICANN Case No. D2000-0135 (WIPO Apr. 15, 2000) (holding that "maersksealand.com" and "maersk-sealand.com" are confusingly similar but not identical to trademarks "MAERSK" and "SEA-LAND"); Durham Herald Co. v. Erwin S., ICANN Case No. FA94312 (NAF Apr. 14, 2000) (holding that "heraldsun.com" is confusingly similar to trademark "The Herald-Sun," without addressing issue of identicality); Creo Products Inc. v. Website in Development, ICANN Case No. D2000-0160 (WIPO May 1, 2000) (holding that "creo-scitex.com" is confusingly similar to trademark "CREOSCITEX," without addressing issue of identicality).
It is true that there have been UDRP decisions that reach a contrary result, including the decisions cited by the majority. In most of those cases, however, identicality has been at most an alternative basis for the panel's holding. The panels in five cases found both identicality and confusing similarity. See Channel Tunnel Group Ltd. v. Powell, ICANN Case No. D2000-0038 (WIPO Mar. 17, 2000); SeekAmerica Networks, Inc. v. Masood, ICANN Case No. D2000-0131 (WIPO Apr. 13, 2000); Colgate-Palmolive Co. v. Kasinga, ICANN Case No. FA94203 (NAF Feb. 28, 2000); Marriott International, Inc. v. Cafй au lait, ICANN Case No. FA93670 (NAF Feb. 9, 2000); and NFL Properties, Inc. v. Rahe, ICANN Case No. D2000-0128 (WIPO Apr. 26, 2000). In Hewlett-Packard Co. v. Cupcake City, ICANN Case No. FA93562 (NAF Mar. 31, 2000), the respondent's domain name was spelled differently than the complainant's trademark, and the panel found it "phonetically identical to and confusingly similar to" the trademark. In Slep-Tone Entertainment Corp. v. Sound Choice Disk Jockeys, Inc., ICANN Case No. FA93636 (NAF Mar. 13, 2000), the panel found the respondent's domain name "virtually identical" to the complainant's trademark based upon a likelihood of confusion. In only two of the cases cited by the majority, InfoSpace.com, Inc. v. Ofer, ICANN Case No. D2000-0075 (WIPO Apr. 4, 2000), and EFG Bank European Financial Group SA v. Jacob Foundation, ICANN Case No. D2000-0036 (WIPO Mar. 22, 2000), did the panels find identicality without also finding confusing similarity.
It seems obvious to me that there cannot be many different domain names that are all identical to the same trademark. If Complainant's trademark is identical to a domain name, that domain name is "c.com," or perhaps "c-com.net" or "c-com.com." But it is not simultaneously identical to all three of these, and it certainly cannot be identical to them and also to "c-com.org," "ccom.com," "ccom.net," "c-c-o-m.com," "c--com.com," and numerous other permutations of these characters and top-level domains.
Furthermore, I see no need to interpret the identicality requirement so liberally, since the UDRP applies to domain names that are confusingly similar as well as those that are identical. As noted in Shirmax Retail Ltd. v. CES Marketing Group Inc., ICANN Case No. AF-0104 (DeC Mar. 20, 2000), identicality merely relieves the trademark owner of the need to prove that confusion is likely. In particular, a domain name that merely adds or subtracts a hyphen from a trademark is almost certain to be found confusingly similar to that trademark, but it clearly is not identical to the trademark.
The domain name and trademark at issue in this case are so similar that confusion seems almost inevitable. Yet Complainant has not even alleged that Respondent's domain name is confusingly similar to its trademark. Complainant's only allegation on the issue of identicality or confusing similarity is as follows: "Kimball's domain name, 'ccom.com,' is identical to Chernow's registered trademark CCOM." Of course, Complainant's trademark is "C-COM," not "CCOM," although the discrepancy appears more likely to be a typographical error than a deliberate attempt to mislead the panel. Nonetheless, the fact remains that Complainant has alleged identicality but has not alleged confusing similarity.
Complainant may have elected not to pursue a claim of confusing similarity for strategic reasons, or (perhaps more likely) due to oversight. Had Complainant chosen to raise the issue of confusing similarity, Respondent might well have been able to present a plausible counterargument. Identicality and confusing similarity are two distinct theories -- confusing similarity is not merely a lesser included version of identicality, and alleging one of these does not automatically allege the other. In any event, Complainant was represented in this proceeding by capable legal counsel, and I see no need to supplement the allegations that Complainant actually made with others that Complainant chose not to include, or to afford Complainant a second opportunity to allege what frankly is an obvious component of a prima facie case under the UDRP.
I would hold that Complainant failed to satisfy the first element of the UDRP, identicality or confusing similarity.
With regard to the second element, I agree with the majority's conclusion that Complainant has met its burden of proving that Respondent has no rights or legitimate interests in respect of the domain name at issue.
Finally, with regard to the third element, I would find that Complainant has failed to meet its burden of proving that Respondent has registered and is using the domain name in bad faith.
The majority finds bad faith registration and use based upon the totality of circumstances in this case, even though Respondent's conduct admittedly does not satisfy any of the illustrations set forth in Paragraph 4(b) of the Policy. This case bears so little resemblance to Telstra Corp. v. Nuclear Marshmallows, ICANN Case No. D2000-0003 (WIPO Feb. 18, 2000), cited by the majority to support this proposition, that a comparison of the two cases would be pointless. The only fact properly before this panel that is even relevant to the question of bad faith registration (apart from Respondent's statement that he was unaware of Complainant's trademark when he registered the domain name) is that Respondent registered the domain name "ccom.com" on August 14, 1997, nearly seven months after Complainant obtained its trademark registration for "C-COM." The majority notes that the domain name at issue here resolves to a web site that suggests that the name may be for sale, and that Respondent has failed to make a bona fide use of the domain name for almost three years. However, neither of these facts is properly before the panel, and indeed neither fact has even been alleged by Complainant.
The existence of a prior trademark registration does not automatically render a domain name registration in bad faith. In Finter Bank Zurich v. Olivieri, ICANN Case No. D2000-0091 (WIPO Mar. 23, 2000), cited by the majority, the respondent had offered two domain names for sale to the complainant only twelve days after he registered them. In Barney's, Inc. v. BNY Bulletin Board, ICANN Case No. D2000-0059 (WIPO Apr. 2, 2000), the other decision cited by the majority on this point, the panel inferred bad faith registration of the respondent's domain name from the fame and presumably the distinctiveness of the complainant's mark, not merely from the fact that the trademark registration predated the domain name registration.
To the extent that Mondich v. Brown, ICANN Case No. D2000-0004 (WIPO Feb. 16, 2000), holds that bad faith registration need not be proved if a domain name owner fails to make "bona fide use" of the name for two years, I believe the decision is contrary to the clear language of the UDRP, which requires that both registration and use be in bad faith. See, e.g., World Wrestling Federation Entertainment, Inc. v. Bosman, ICANN Case No. D1999-0001 (WIPO Jan. 14, 2000) (inferring bad faith registration from registrant's attempt to sell domain name to complainant three days after registering it). Passively holding or "parking" a domain name for an extended period may well be relevant to bad faith use, but it does nothing to show that the name was originally registered in bad faith. In Beverages & More, Inc. v. Glenn Sobel Mgt., ICANN Case No. AF-0092 (DeC Mar. 9, 2000), the panel considered the respondent's "admissions, evasive tactics, gratuitously vituperative and wholly unsupported allegations about the purported motives and actions of opposing counsel, as well as the other facts and circumstances adduced by Claimant" in concluding that the respondent had registered its domain name in bad faith. Similarly, in Telstra Corp. v. Nuclear Marshmallows, the panel found bad faith registration based in part upon the respondent's deliberate attempts to conceal its identity and the fact that the respondent must have known at the time that it registered the domain name that it could not possibly make legitimate use of the name.
I do not believe there is a sufficient basis in this record to support a finding that Respondent has registered or is using the domain name in bad faith.
Since I believe that Complainant has failed to meet the first and third requirements set forth in the UDRP, I would deny its request for relief. I therefore respectfully dissent from the decision reached by my fellow panelists.
David E. Sorkin
Dated: May 18, 2000
1. It is curious that, in the middle of panel deliberations, the Respondent (or his agent or assignee) changed the link to the web site, so that www.ccom.com now resolves to a site offering computer products for sale copyrighted by vstore.com. Such changes in conduct following the onset of proceedings cannot be allowed to affect their outcome. See, e.g., Ingersoll-Rand v. Frank Gully, d/b/a Advcomren, ICANN Case No. D2000-0021; Ventura Foods LLC v. Pathi, ICANN Case No. AF-0136.
2. For example, the first case cited by the dissent, Draw-Tite, Inc. v. Plattsburgh Spring Inc., ICANN Case No. D2000-0017 is cited for its holding "that ‘drawtite.com’ is confusingly similar but not identical to trademarks ‘DRAW TITE’ and ‘DRAW-TITE.’" However it is instructive to read the Panel’s language on this point:
While the domain name DRAWTITE.COM is not identical to Complainant’s registered trademarks DRAW TITE and DRAW-TITE and Design, this Panel finds that the subject domain name is confusingly similar to the Complainant’s registered trademarks. Addition or deletion of a hyphen or space between the two words of the mark makes an insubstantial difference to the appearance, pronunciation and meaning of the terms.