Nominet UK Dispute Resolution Service
DRS 02802
RuggedCom Inc. v. LANstore Inc.
Decision of Independent Expert

1.	Parties:
Complainant:	RuggedCom Inc. 
Country:		CA

Respondent:	LANstore Inc.
Country:		US

2.	Domain Name:
ruggedcom.co.uk (“the Domain Name”)
3.	Procedural Background:
15/07/2005	Dispute entered into system
21/07/2005	Hardcopies received in full 
21/07/2005	Complaint validated
21/07/2005	Complaint forwarded to Respondent
12/08/2005	Electronic Response matched
12/08/2005	Response hardcopies received
12/08/2005	Response forwarded to Complainant
24/08/2005	No Reply received
24/08/2005	Mediation initiation documents generated
10/10/2005	End of Mediation without resolution documents generated
20/10/2005	Fees for Expert Decision received from Complainant
21/10/2005	Mr Iain M Tolmie selected as Expert
3.1.	On the 21st October 2005, I (Iain M. Tolmie, the undersigned, “the Expert”) was contacted by the Nominet Dispute Resolution Service and I confirmed to them that:
“I am independent of each of the parties. To the best of my knowledge and belief, there are no facts or circumstances, past or present, or that could arise in the foreseeable future, that need be disclosed as they might be of a such a nature as to call in to question my independence in the eyes of one or both of the parties.”
3.2.	I was appointed as the Independent Expert for this Case as from 27th October 2005 to respond on or before 10th November 2005.
4.	Outstanding Formal/Procedural Issues:
4.1.	The usual mediation period was extended at the discretion of the DRS Mediator.
4.2.	There are no outstanding formal or procedural issues.
5.	The Facts:
5.1.	This is a dispute between a Canadian registered company (RuggedCom – Complainant) and a United States registered company (LANstore – Respondent).  Neither party has offered any evidence that it trades in the UK or EU.
5.2.	The Complainant is in the possession of a Canadian trademark (finally registered 31st March 2005) and a US trademark (finally registered 6th July 2004) in the name RuggedCom.  The Complainant also owns the domain name “ruggedcom.com” which was registered on 7th February 2001.
5.3.	The Respondent is the owner of the domain “lanstore.com” which was registered on 24th March 1998 and “ruggedcom.net” which was registered on 8th November 2004.   The Domain Name (in dispute) “ruggedcom.co.uk” redirects to “ruggedcom.net”.
5.4.	From my own search, the domain “ruggedcom.net” is in dispute via the WIPO Domain Name Dispute Resolution Service (D2005-0760 apparent commencement date 10th August 2005).
5.5.	From the evidence supplied, both parties operate in the same market supplying similar products – namely the provision of computer communications products, and especially Ethernet devices.
6.	The Parties’ Contentions:
6.1.	It is usual for the Expert to summarise the submissions but in this case I have largely left the wording intact, only removing repeated allegations or additional expansion.
Complainant
6.2.	The Complainant’s submissions (made on its behalf by an agent) are as follows:
I confirm that Domain Name(s) in dispute are identical or similar to a name or mark in which I have Rights.
I confirm that Domain Name(s) in the hands of the Respondent is an Abusive Registration.
[8.] This dispute is based on the Canadian and U.S. Registered Trade Marks: RUGGEDCOM and the corporate name RuggedCom. The domain name is identical or confusingly similar to a trademark in which the Complainant has rights;
 [11.] RuggedCom asserts that it has rights in the registered trade mark, “RUGGEDCOM”, since before the date of registration of the domain name by the registrant on November 8, 2004, because RuggedCom used the trade mark as both a trademark and a trade name prior to this date, and, RuggedCom secured US registration 2861221 for the mark RUGGEDCOM on July 6, 2004 as evidence of its rights in the name RUGGEDCOM.
[12.] RuggedCom also uses its trade mark “RUGGEDCOM” as part of its corporate name. RuggedCom, Inc. 
[13.] RuggedCom has been promoting its trade mark, “RUGGEDCOM” since its incorporation in February 2001. RuggedCom has spent on average, between tradeshows, marketing consultants, website development, and advertising approximately $150,000 to $250,000 (USD) per year over the past four years. In total, RuggedCom has spent up to $1,000,000 (USD) promoting the trade mark “RUGGEDCOM”.
 [15.] RuggedCom, has over the past four years, sold approximately $14 Million (USD) worth of Industrial Ethernet product. RuggedCom’s website is a main source of information and advertising for RuggedCom’s products and more importantly the RUGGEDCOM brand. The Website generates approximately 75% of RuggedCom’s sales. RuggedCom’s website, www.ruggedcom.com, receives on average over 200,000 hits per month from potential customers. 
[16.] RuggedCom has been operating the website www.ruggedcom.com since it was registered on February 7, 2001. The website is used to direct customers to RuggedCom products and provide information about RuggedCom to potential clients.
[17.] The Registrant’s domain name Ruggedcom.co.uk is “identical” to RuggedCom’s trade mark “RUGGEDCOM”. 
[18.] RuggedCom asserts that because the domain name is identical to the mark “RUGGEDCOM”, a person having imperfect recollection of the Complainant would likely mistake the Registrant’s domain name for that of the Complainant’s or mistake the Registrant’s domain name as belonging to the Complainant based on the identical appearance, sound or the idea suggested between the Complainant RuggedCom and the domain name Ruggedcom.co.uk.
[19.] RuggedCom submits that the Registrant’s domain name Ruggedcom.co.uk is also “confusingly similar” to the Complainants mark “RUGGEDCOM” because the Registrant’s domain name so nearly resembles this mark in appearance, sound and ideas suggested by the mark that it is likely to be mistaken for it. 
[21.] RuggedCom has become known to both customers and competitors, and in particular the registrant as RUGGEDCOM. 
[22.] The disputed domain name uses RuggedCom’s trade mark RUGGEDCOM in its entirety without any variation which would likely lead to confusion between RuggedCom.com and Ruggedcom.co.uk. 
[23.] The Respondent sells similar products as RuggedCom and this would further confuse a person viewing the website into believing that Ruggedcom.co.uk is related to the Registered Trade Mark “RUGGEDCOM”, the domain name RuggedCom.com or the Company RuggedCom Inc. 
[26.] RUGGEDCOM has been in the business of designing and manufacturing computer peripheral equipment including Ethernet Switches, Serial Device Servers, Media Converters and Layer 3 Routers since February 2001 and continues to design and manufacture similar communications equipment to date. 
[27.] LANstore was incorporated in the state of California on July 27, 2004 by the registered agent Frank S. Madren of 47350 Westing House Drive, Fremont, California. LANstore operates as a retailer of computer peripheral equipment specializing in industrial Ethernet products including media converters, disc switches, serial-to-ethernet and industrial bridges in direct competition with RUGGEDCOM. 
[33.] The Registrant, its related entity GarrettCom and RUGGEDCOM are each in the business of designing and manufacturing communications and networking equipment. RuggedCom and GarrettCom are direct competitors in the emerging Industrial Ethernet market. The companies compete in several sectors including: Electric Power, Industrial Automation, Transportation Systems and Military. RuggedCom is the recognized industry leader in substation hardened Ethernet and communications networks. The businesses are known to each other as competitors and should be considered competitors for the purpose of this Complaint. 
[34.] The Registrant has used and continues to use the domain name, Ruggedcom.co.uk, in bad faith to re-direct internet users to its website, www.lanstore.com, where it offers similar products in direct competition with the Complainant RuggedCom. The Registrant’s website Ruggedcom.co.uk was discovered by RuggedCom through Craig MacPhereson, a marketing consultant, on March 17, 2005 and was found to be very similar to the LANstore webpage. Shortly thereafter the Registrant placed the website “Under Construction”. Once negotiations broke down, the Registrant started up the website Ruggedcom.co.uk as a “quasi-information site” directing users to its website by a direct link which is shown on page 3 in the screen printout of the Registrant’s website attached as Annex 7 hereto. 
[35.] RuggedCom submits that Registrant registered the domain name Ruggedcom.co.uk primarily for the purpose of disrupting the business of the Complainant, who is a competitor of the Registrant. The Complainant therefore submits that the registration of Ruggedcom.co.uk should therefore be found to be made in “bad faith”. 
[36.] RuggedCom asserts that the Registrant has no “legitimate interest” in the domain name, because the Registrant never used mark in association with its own wares or services and only used the domain name in bad faith to confuse customers of RuggedCom by 1) redirecting users to its own website; and 2) selling products in direct competition with RuggedCom. As such, the Registrant is using the domain name Ruggedcom.co.uk in bad faith to re-direct internet users to www.lanstore.com where it sells products in direct competition with RuggedCom. 
[37.] The Complainant requests the Administrative Panel appointed in this administrative proceeding issue a decision that ruggedcom.co.uk be transferred to Ruggedcom Inc., the Complainant.
Respondent
6.3.	The Respondent’s submission (made on its behalf by an agent) is as follows:
1. On or about July 27, 2005 Respondent received the hardcopy Complaint with annexes forwarded by Nominet UK, along with a cover letter stating that the response was due 12 August 2005.
2. Respondent objects to the Complaint and asks that the Expert not grant the Complainant the remedy that it has requested. Relief is unavailable under the September 2004 Dispute Resolution Service Policy (“Policy”) where a Complainant relies on a name or term which is wholly descriptive of its business. As shown below, “rugged” and “ruggedcom” are generic terms for Complainant’s business and its products. Further, Respondent’s registration of “ruggedcom.co.uk” is not abusive in any event. 
3. Respondent is an industrial Ethernet seller that supplies hardened networking equipment for the factory, carrier-Ethernet, and outdoor markets. Respondent’s industrial Ethernet products are rugged, feature-rich, and offer extended temperature. Its products include hardened media converters, DC switches, device servers, and industrial wireless bridges. 
4. According to the Complaint, Complainant “operates as a designer and manufacturer of networking hardware including Ethernet switches, hubs, media converters, repeaters, concentrators and transceivers.” Complaint, Paragraph 31. Complainant claims that it sells products in several sectors, including electric power, industrial automation, transportation systems, and military. Complaint, Paragraph 33. It states that that it sells hardened Ethernet and communications networks. Ibid. RELIEF IS UNAVAILABLE UNDER THE POLICY The Domain Name is Comprised of Generic Industry Terms. 
5. “Rugged” and “hardened” Ethernet are terms frequently used in the networking and communications industry to distinguish “office-grade” products from products that are designed for industrial organizations. Networking products that are implemented in industrial sites are characterized as being impervious to dust and foreign materials, are able to withstand extreme temperatures, and are able to survive hitting or bumping--in other words, “rugged.” Without this “rugged” characterization, manufacturers of industrial Ethernet equipment are more likely to be lumped into the office networking commodity category where price is often the main selling determinant. LANstore products are viewed in the industry as “rugged” and have “rugged” characteristics. Instances where LANstore uses the term “rugged” or its derivatives in connection with its products appear at http://www.lanstore.com/telecom.htm and http://www.lanstore.com/outdoor.htm. Samples of such use by LANstore predating LANstore’s notification of this dispute are attached collectively as Annex 1. 
6. The term “rugged” in connection with Ethernet products, including “rugged communications,” “rugged computers,” “rugged switches,” and “rugged gateways,” has achieved such currency in the networking and communications industries that these terms have become generic terms that identify, and name, a particular genus of product. Complainant itself characterizes itself as a “developer of ruggedized networking and communications technology ….” Annex 2. 
7. Numerous instances of such generic use of “rugged” as “rugged communications,” “rugged computers,” or similar formulations are easily found. A search done on the Google search engine for the term “rugged computer” yielded no fewer than 20,900 results. A few such search results are attached as Annex 3. 
8. Similarly, a Google search turned up some 259 instances of “rugged communications.” A few such search results are attached Annex 4. 
9. A Google search of “rugged Ethernet” produced 827 results. A few such search results are attached as Annex 5. 
10. By way of example, an instance of the term “rugged computer” appears on the webpage located at www.lxe.com/us/company/default.aspx. A copy of that web page is attached as Annex 6. On it, a company named “LXE” profiles its “rugged computer,” speaks of its “rugged, industrial computers” that it has been building for over 30 years, and extols the toughness of its “rugged computers.” 
11. As a further example, attached as Annex 7 is a printout of the webpage for DRS Technologies. Annex 7 contains information concerning the company’s MC50A rugged computer product, a “1 ATR general-purpose rugged computer . . . .” 
12. Another example of the term “rugged computer” used in a generic sense is attached as Annex 8. It is a press release announcing Golden Gate Capital’s acquisition of Itronix, “A Rugged Computer Vendor.” 
13. Obviously, given over 20,000 search results one can identify a huge number of other instances of the use of the term “rugged computer” to described a particular type of computer product. Likewise, one can point to many instances of the use of “rugged” to name particular types of communications equipment. 
14. For example, in a June 2005 press release Data Path announced a contract to provide the U.S. Army a “rugged communications gateway.” Similarly, on its website Ericsson describes its “rugged communications switches.” A page from the Sigtec website announces a “rugged communications gateway ….” Copies of the foregoing webpages are attached collectively as Annex 9. 
15. A sampling of other instances of the term “rugged” used to name computer, networking or communications equipment is attached as Annex 10. 
16. Complainant itself has apparently purchased advertising denoting itself as a purveyor of “seriously rugged communications switches, servers, media converters.” See Annex 11. 
17. Various providers of rugged communications and rugged computer systems, besides Complainant, have adopted domain names containing the term “rugged.” For example, www.rugged.com is apparently held by Aitech. See Annex 12. Similarly, www.ruggedcom.nl and www.ruggedcom.be are held by a Dutch Ethernet concern that offers communications equipment similar to that provided by Complainant and Respondent. Additionally, www.ruggedcom.fr is a French Internet Services Provider named Amen. Annex 13 includes pages from www.ruggedcom.nl, www.ruggedcom.be. and www.ruggedcom.fr. Complainant Has No Valid Trademark Rights In “Ruggedcom.” 
18. The alleged trademark rights that Complainant claims in the domain name ruggedcom.co.uk are invalid because, as shown, the terms “rugged” as well as the related terms “rugged computer,” “rugged communications,” and their derivatives or abbreviations, are commonly used generic names for particular types of products sold in Complainant’s industry. 
19. The generic name of a product--what the product is--can never function as a trademark to indicate origin. Therefore, a seller cannot appropriate a generic name of a thing and claim exclusive rights in it as a trademark for that thing. Here, Complainant attempts to do just that. Complainant’s United States and Canadian trademark registrations are for “communication routers, switches, gateways, computers and modems.” See Annexes 2 and 3 to the Complaint. Complainant claims a trademark in “Ruggedcom” precisely in connection with the generically-named products described above.
 20. The law regards generic names as free for all to use. See, e.g., Singer Manufacturing Co. v. June Manufacturing Co., 163 U.S. 169 (1896), and the British decisions cited therein, attached as Annex 14. Buyers of Complainant’s products and Respondent’s products understand by “rugged” and “rugged com” a certain product or type of product, namely, industrial equipment having certain characteristics necessary for use harsh environments. 
21. Complainant may protest that it claims trademark rights in a combination of the “rugged” and “com.” However, abbreviations of a generic name which still convey to buyers the generic connotation of the abbreviated name remain generic. For example, the United States Patent and Trademark Office found “mass flow” to be a generic noun when used as the name of a measurement taken by mass flowmeters and as an equally unprotected generic adjective when used with the mass flowmeters that measure mass flow of liquids. See Micromotion, Inc. v. Danfoss A/S, 49 U.S.P.Q.2d 1628, 1998 W.L. 988200 (Trademark Trial & App. Bd. 1998). Similarly, “MOGAS” was held to be a non-registerable term for motor gasoline. Exxon Corp. v. Motorgas Oil & Refining Corp., 219 U.S.P.Q. 440, 1983 WL 50158 (T.T.A.B. 1983). American courts have found other abbreviated or shortened versions of generic terms to be generic. See, e.g., Loglan Inst., Inc. v. Logical Language Group, Inc., 962 F.2d 1038, 22 U.S.P.Q.2d 1531 (Fed.Cir.1992) (LOGLAN is a generic abbreviation of the generic name “logical language”); Madison Reprographics, Inc. v. Cooks Reprographics, Inc., 552 N.W.2d 440, 41 U.S.P.Q.2d 1905 (Wis.App.1996) (finding “repro” to be a generic abbreviation for the generic name “reprographics” for a reproduction and printing service); Martell & Co. v. Societe Anonyme De La Benedictine, etc., 116 F.2d 516 (1941) (finding “B and B” for benedictine and brandy to be merely a recognizable abbreviation of the generic name of the liquor). Copies of these cases are attached as Annex 15. 
22. Results of dictionary searches for “com” indicating the use of that term to denote communications and computers are attached as Annex 16. 
23. Thus, Complainant has no valid trademark rights in “rugged” or “ruggedcom.” 
24. Moreover, Paragraph 1 of the Policy provides that “a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant's business.” Complainant’s claimed rights are based on a name and term that is wholly descriptive of its business, namely, rugged communications and computers. Isndeed, “rugged” and “ruggedcom” are generic names for products of both Complainant and many others in the industry. Therefore, the relief sought is unavailable under the Policy. Respondent’s Registration is Not Abusive. 
25. The registration in the hands of the Respondent is not abusive in any event:
a. As shown, the name inherent in the domain name is one that Respondent is legitimately connected to or entitled to use because it is a generic term for common products in Complainant’s and Respondent’s industry. 
b. In addition, Respondent has purchased a number of domain names that include common industrial Ethernet terms, in order to develop web sites directed to potential customers or persons interested in learning more about industrial Ethernet products. Other such domain names that Respondent has reserved are the following: (1) lanstore.co.uk, (2) poeswitch.com, (3) ruggedlan.com, (4) ruggedpoe.com, (5) rugged.bz, (6) industrialethernetstore.com, (7) fieldswitch.com, (8) edgeswitch.com, (9) converterswitch.com, and (10) es42.com. To the best of Respondent’s knowledge, none of these domain names contain or are comprised of the marks of any third party. Respondent similarly reserved ruggedcom.co.uk for legitimate purposes. 
c. The Complaint, on its face, asserts that Respondent was using the name in relation to a genuine offering of goods or services, namely industrial Ethernet products. Respondent reserved the name in November 2004, months before it was notified in approximately March 2005 of the Ruggedcom’s dispute. In its Complaint, Complainant has alleged that it only learned of ruggedcom.co.uk in March 2005, and that prior to that time the ruggedcom.co.uk website “was found to be very similar to the LANstore webpage.” See Complaint, Paragraph 34. 
d. By all appearances, Complainant is using the DRS in bad faith because it cannot properly assert trademark rights in the generic “rugged” and “ruggedcom,” as it seeks to do apparently in order to monopolize terminology for certain primary products and product characteristics in the area of industrial communications and networking gear. 
e. Even were Complainant to contest the compelling evidence of the domain name’s genericness submitted herewith, it has been stated that in cases where there are significant conflicts of fact and evidence in relation to a domain name which may be generic the Policy should be exercised with caution, or not at all. See Glue Dots International v. Fantes-Tak Ltd [2003] Nominet DRS 1159 (17 November 2003), at Paragraphs 7.17-7.21 (declining to make findings of abusive registration).
Complainant’s Reply
6.4.	The Complainant has not made a Reply, though it was notified by Nominet of its right to do so.  
7.	Discussion and Findings:
General
7.1.	This is a case where the Complainant alleges that the Respondent is misusing the Complainant’s company name in the Domain Name, hence confusing prospective customers, and misdirecting the Complainant’s customers to the Respondent’s web pages.  The Respondent has asserted in return that the Complainant’s company name is both generic and descriptive and hence cannot be reserved solely to the Complainant.  The Complainant has a “.com” domain, the Respondent a “.co.uk” domain.  This is the second case of this particular type which I have been asked to decide – see also DRS 02204 Comtec Enterprises Ltd v. Mr Mark Corden t/a Comtec (“comtec.co.uk”).   
7.2.	Nominet through its Dispute Resolution Service (“DRS”) provides a simple and accessible administrative procedure for dealing with the majority of straightforward mistakes or abuses which can occasionally arise (as explained in Nominet’s DRS Policy and DRS Procedure see http://www.nominet.org.uk/DisputeResolution/AboutTheDrs/).  This administrative procedure is limited in its scope by the defined DRS Policy and is not (for example) a suitable forum for arguing the finer points of trademark law.
7.3.	It may well be that there are substantive issues at law as to the standing of the RuggedCom trademark registrations and/or the use of the name “ruggedcom” by the Respondent in the light of those registrations.  The appropriate fora to settle those issues will be the courts of Canada and the USA.  In this Decision, I shall restrict myself to considering the DRS Policy only.
7.4.	The Respondent undertook the condition of complying with the DRS  Policy and DRS Procedure when registering the Domain Name.  The Complainant undertook to comply with the DRS Policy and DRS Procedure when submitting the Complaint.
7.5.	The Nominet web site contains extensive help for Complainants and Respondents which explains in detail (with examples) how to submit a Complaint or Response.  It gives clear reminders of what appropriate evidence should be submitted.  It is also strongly emphasises that it is the Complainant’s responsibility to prove its case.
7.6.	Of particular relevance here, when discussing Generic or Descriptive Domain Names (§4 of the Typical Cases guidance) Complainants are warned: “If you are complaining about a name which might be argued to be generic or descriptive, you should explain in detail why it is not”.  
7.7.	I should therefore comment upon the fact that the Complainant has submitted a case more directed to the wording and concepts of the  ICANN Uniform Domain Name Dispute Resolution Policy (applicable for example to “.com” and “.net” complaints) than the Nominet DRS Policy (applicable to all “.uk” registry complaints).  This does not necessarily invalidate the case made, but the grounds for complaint and other matters are somewhat different and it does make it more difficult for the Expert to draw appropriate conclusions.  One would expect professional representatives to make cases in terms of the appropriate Policy.
Burden of Proof
7.8.	In order for a Complainant to succeed he must (under Paragraph 2 of the DRS Policy) prove to the Expert, on the balance of probabilities, both:
i	that he has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
ii	that the Domain Name, in the hands of the Respondent, is an Abusive Registration as defined in Paragraph 1 of the Policy.
7.9.	Rights and Abusive Registration are defined in the DRS Policy as:
Rights includes, but is not limited to, rights enforceable under English law.  However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant's business;
Abusive Registration means a Domain Name which either:
i) was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainants Rights; OR
ii) has been used in a manner which took unfair advantage of or was unfairly detrimental to the Claimant’s Rights.
Complainants Rights
7.10.	It is established practice under the DRS Procedure that the “Rights” test is regarded as having a low threshold.  The process is designed such that the expert will only proceed to the examination of the “Abusive Registration” leg of the test if the “Rights” leg is satisfied. In this particular case, with the Respondent arguing that the Domain Name is generic and descriptive, the approach to the analysis of the cases as presented becomes rather different – since the emphasis is much more on the “Rights” leg of the test and the examination becomes more rigorous.  It therefore unfortunate that the Complainant has chosen not to Reply to the Response – since the Complaint as it stands does not envisage or deal with the arguments raised by the Respondent.
7.11.	The Complainant produces evidence of ownership of two trademarks in respect of RuggedCom (though I believe the final registration date of the Canadian trademark makes it irrelevant, since that date is later than the date on which the Domain Name was registered – the act of filing conveys no rights). The Complainant also relies upon the established use of the company name, RuggedCom, which it alleges was incorporated in February 2001 (producing no evidence to that effect other than the registration date for “ruggedcom.com”). 
7.12.	Hence the set of letters “RuggedCom” is the Complainant’s business name and was also a registered US trademark at the relevant time that the Domain Name was registered.  “ruggedcom” is the Domain Name in dispute – after removing (as is usual) the “.co.uk”.  Since domain names only use lowercase letters then “RUGGEDCOM” (trademark), “RuggedCom” (business name) and “ruggedcom” are all typographically equivalent.  It would be simple, and in most cases logical, to move from one to the other and say that they are similar, and in most cases sufficient evidence of the prolonged business use of the name and/or the pre-existence of the trademark would be sufficient to establish the necessary Rights to satisfy the DRS Policy.
7.13.	However, Rights do not necessarily automatically accrue just because there is a correspondence between the company name and the Domain Name.  There are some important exceptions, for example:
7.13.1.	Where the Complainant’s rights arose after the registration of the Domain Name in dispute;
7.13.2.	Where the Domain Name is generic or a name or term which is wholly descriptive of the Complainant’s business;
7.13.3.	Where there is an acronym involved (see the Nominet guidance to Complainants on Rights in a Name or Mark - “5) If you are claiming rights in an acronym (e.g. Automaton Example Ltd claiming rights in AEL.co.uk) you should provide specific evidence of why that acronym is associated with you, and not merely a generic jumble of letters”).
7.13.4.	And it should be noted that (the DRS Policy §4)...the Respondent may demonstrate in its Response that the Domain Name is not an Abusive Registration ….[by showing that] ii) The Domain Name is generic or descriptive and that the Respondent is making fair use of it.
7.14.	In this case, the Respondent has specifically raised the issue of whether the Complainant can claim appropriate Rights, since the Respondent makes the case that the Domain Name is both generic and descriptive of the Complainants business.
7.15.	“ruggedcom” is not strictly an acronym (Oxford English: acronym n a word, usually pronounced as such, formed by the initial letters of other words (e.g. ernie, laser, NATO)).  “ruggedcom” may just be a collection of letters or it may be a contraction of two or more words; certainly the Respondent suggests that it is a contraction and the Complainant uses the form RuggedCom – perhaps indicating a two-part “word”.  The Complainant has not provided any explanation of the derivation or the use of the style “RuggedCom” and has made no Reply to the Respondent’s case dealing with the issue. The Respondent has produced a RuggedCom press release which clearly shows “RuggedCom Industrial Strength Networks” and which describes itself as “a leading developer of ruggedized networking and communications technology”.
7.16.	In my opinion the nub of this case arises from the use of “ruggedcom” by both parties.  The point I must decide is whether “ruggedcom” is either simply generic or is a contraction of words which as a result may be considered as “a name or term which is wholly descriptive of the Complainant’s business”.  Whilst the Complainant gives me no assistance in understanding why “ruggedcom” has been used as its company name, the Respondent maintains that:

“The term “rugged” in connection with Ethernet products, including “rugged communications,” “rugged computers,” “rugged switches,” and “rugged gateways,” has achieved such currency in the networking and communications industries that these terms have become generic terms that identify, and name, a particular genus of product. Complainant itself characterizes itself as a “developer of ruggedized networking and communications technology”.
7.17.	The Respondent has provided detailed Annexes to his case containing supporting Google searches, copies of other web pages where the word “rugged” forms part of the domain name, and lists of definitions of the abbreviation “com”.  Whilst it is not expected of me, I have carried out similar searches and checked the contents of the Respondent’s submissions.  I am satisfied that the points made by the Respondent are valid.  For example, the owner of “rugged.com” is Aitech which “is a leading supplier of rugged computer systems optimized for harsh environments”, which describes itself as “part of the Ai-Rugged Group”, and which has a copyright statement on its web page covering 1995-2005 – hence a presumption of operating for at least that period.  There is also a “rugged-pc.com” which is owned by a UK company (Rugged Technologies Ltd.) supplying “certified Industrial Computer & Rugged Portable hardware solutions”.  See also the Respondent’s paragraphs 12-14 in section 6.3 above.
7.18.	Having regard to the evidence submitted by the Respondent, and my own searches, I have formed the opinion that “rugged” is in commonplace use in the computer and communications industry and has a recognisable meaning within that industry, and that “com” is a recognised contraction of “computer(s)” or “communication(s)” both within the industry and more generally. I therefore consider “ruggedcom” to be generic.  A term is a word used to express a definite concept.  In the absence of an explanation from the Complainant, “ruggedcom” seems to me to be a term to express the concept of “rugged computers” or “rugged communications”.  Given the nature of the goods and services both parties are supplying, I see no reason to doubt that “ruggedcom” could (in both cases) be viewed as a contraction of “rugged (or ruggedised) com(munications)”. 
7.19.	I note that the Complainant uses the style RuggedCom, implying (to my mind) a concatenation of two words.  If “RuggedCom” was read as “Rugged(ised) Communications” it would result in the company name  (and hence the Domain Name) being wholly descriptive of the Complainant’s business.
7.20.	It is not for me to comment upon or examine the US and Canadian trademarks held by the Complainant.  However in this case, under these specific circumstances, having regard to the evidence before me, and having regard to the DRS Policy: I find that the domain name “ruggedcom” is both generic (is applicable to a class or group) and a name or term which is wholly descriptive of the Complainant's business and hence that the Complainant cannot rely upon it to establish Rights..  
7.21.	I therefore find that the Claimant has not established the necessary Rights in the name “ruggedcom” for the purposes of the DRS Policy and this Decision.
Abusive Registration
7.22.	Having found that the Complainant has not established to my satisfaction that it has Rights in respect of a name or mark which is identical or similar to the Domain Name, I do not need to examine any allegations of an Abusive Registration.
8.	Decision:
8.1.	For the reasons I have set out above, I find that the Complainant has not established Rights in respect of a name or mark which is identical or similar to the Domain Name.
8.2.	I therefore determine that NO ACTION should be taken on the Domain Name registration.
8.3.	Despite the comments by the Respondent, I decline to find that the Complaint was brought in bad faith since the Complainant holds trademark registrations and is entitled to try to protect them.

______________________                                     Date:  4thNovember 2005 
Iain M. Tolmie (“the Expert”)