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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Al Ghurair Group LLC v. Ghurair Group

Case No. D2004-0532

1. The Parties

The Complainant is Al Ghurair Group LLC, Dubai, United Arab Emirates, represented by Mr. Marwan Mohd M. Kiswani, United Arab Emirates.

The Respondent is Ghurair Group, Greensboro, North Carolina, United States of America, represented by Mr. Peter J. Willsey and Mr. Adam L. Barea, United States of America.

2. The Domain Names and Registrar

The disputed domain names <alghurair.com> and <ghurair.com> (the “Domain names”) are registered with Dotster, Inc.

3. Procedural History

The complaint was filed by e-mail with the WIPO Arbitration and Mediation Center (the “Center”) on July 20, 2004, and in hard copy on July 22, 2004. On July 21, 2004, the Center by e-mail formally acknowledged receipt of the complaint.

On July 21, 2004, the Center by email transmitted to Dotster, Inc. a request for registrar verification in connection with the domain names at issue. On July 22, 2004, Dotster, Inc. by e-mail transmitted to the Center its verification response notifying the Center of the absence of a copy of the complaint, and confirming that the Respondent is listed as the Respondent and providing the contact details for the administrative, billing, and technical contact. On July 27, 2004, in response to a notification by the Center that the registrar had yet to receive a copy of the complaint, the Complainant by e-mail transmitted the requested copy of the complaint to Dotser, Inc. The Center verified that the complaint now satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the complaint, and the proceedings commenced on July 28, 2004. In accordance with the Rules, paragraph 5(a), the due date for response was August 17, 2004. The response was filed with the Center on August 18, 2004. On August 19, 2004, the Center formally acknowledged receipt of the response.

The Center appointed Madeleine De Cock Buning as the sole panelist in this matter on August 23, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

On August 24, 2004, the Complainant by e-mail filed a reply to the response with the Center. The same day, the Respondent by e-mail filed a rejoinder to the aforementioned reply.

On August 30, 2004, the Panel issued Procedural Order No. 1 requesting the Complainant to submit evidence relative to the use of “(al)ghurair” as a registered trademark or in a manner that would generate unregistered trade mark rights and permitting the Respondent to file a response to any evidence thus submitted.

On September 4, 2004, the Complainant requested an extension of time to submit evidence as requested in the Procedural Order No. 1. On September 7, 2004, the Panel granted an extension of seven days.

On September 9, 2004, the Respondent by e-mail filed an objection to the Procedural Order No. 1 and the Complainant's request for an extension of time as described above.

On September 13, 2004, the Complainant by e-mail filed supplementary evidence as requested by the Procedural Order No. 1, as well as its reply to the Complainant's objection thereto.

On September 20, 2004, the Respondent by e-mail filed a response to the supplementary evidence submitted by Complainant.

On September 28, 2004, The Panel issued Procedural Order No. 2, allowing the Respondent to submit an amended response to the complaint, permitting the correction of defects in the response and permitting the Complainant a final reaction limited to any statements and evidence not previously submitted.

On October 5, 2004, the Respondent filed an amended response pursuant to Procedural Order No. 2.

On October 12, 2004, the Complainant filed a reaction to the amended response pursuant to Procedural Order No. 2.

On October 12, 2004, the Respondent filed a response to Complainant’s October 12, 2004, reaction.

On October 13, 2004, the Complainant filed an objection to the Respondent’s October 12, 2004, response.

4. Factual Background

The Complainant is a holding company, which conducts and controls a significant number of companies that operate in a variety of sectors of the United Arab Emirates business community. These companies include the Al Ghurair Center, established in 1980, the Al Ghurair Printing and Publishing House Co. L.L.C., established in 1986 as well as Al Ghurair Real Estate, established in 1997.

The Complainant owns a United Arab Emirates trademark, registered on June 23, 1999, under number 21468, consisting of a logo formed by four outward pointing arrows, for the class 36 (real estate services).

No information has been provided about the nature - if any - of the business activities carried out by the Respondent, or by Mr. Suhail Ahmed who in the past has acted on behalf of the Respondent.

The disputed domain names <alghurair.com> and <ghurair.com> were registered on June 1, 1998, and June 2, 1998, respectively (the “Domain names”). The Domain names have not been and are not connected to an active internet site. The Domain name <ghurair.com> is currently parked at “www.zoneedit.com”.

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The Complainant lists a vast number of companies which it (in)directly controls and which are identified by its trademark. Some of these companies incorporate the word (al) ghurair in their trade names, such as “Al Ghurair Centre”, “Al Ghurair Printing and Publishing House Co. L.L.C.” and “Al Ghurair Real Estate”. Others lack this incorporation, such as “Bank of Oman”, “Arabian Mix Co. L.L.C.” and “Union Mosaic Company”.

The Complainant contends that the name “ghurair” has become a highly distinguished symbol of success, and that usage of “ghurair” as a domain name is both identical as well as confusingly similar to its trade name.

In its reply to the response, the Complainant, referencing the significance and size of its business activities, argues that the trade name “al ghurair” has achieved the status of a common law trademark. As such, it distinguishes the services and products with respect to inter alia real estate and management services offered by itself as well as by its subsidiaries.

In its supplemental filing pursuant to Procedural Order No. 1, the Complainant submits a report containing market research into the brand awareness of the general public of one or more of the goods and services rendered under the name “al ghurair”. According to the report, when prompted, 94.5% of the Dubai residents were able to associate “al ghurair” with at least one of its products or services, and half of the Dubai residents have been aware of the Al Ghurair shopping mall for more than ten years. Based on the foregoing, the Complainant asserts that “al ghurair” is a well-known trademark identifying shopping malls, real estate services and other services thus constituting a common law trademark generating unregistered trademark rights.

Rights or Legitimate Interests

The Complainant asserts that in the absence of any results yielded from an online search into the database of the Department of the Secretary of State of North Carolina for a business name containing the word “ghurair”, the Respondent does not carry out any commercial activity under the name Al Ghurair. The company is therefore non-existent and thus lacks legal capacity.

An online search using Google into “ghurair group”, the name of the Respondent, yielded no results other than those referencing the Complainant. The non-existent Respondent is thus unknown by the Domain name. Furthermore, for the past six years since the registration of the Domain names, no goods or services have been offered under the Domain names. No active website is connected to <alghurair.com>, whilst <ghurair.com> is connected to a free parking page by ZonEdit. Consequently, the Respondent has no rights or legitimate interests in the Domain names.

Registered and Used in Bad Faith

With respect to the registration of the Domain names, the Complainant points out that the Respondent’s address featuring in the registration record in fact belongs to a company by the name of Mouthshut. One of the contact addresses provided on its internet site “www.mouthshut.com” is a Dubai address. Hence, according to the Complainant, this establishes the fact that the address of the Respondent, as provided in the registration records, belongs to a company which has a presence or representation in Dubai. This company would therefore understand the value, credibility and brand equity of “ghurair”.

By thus registering the Domain names, the Respondent moreover prevented a vast number of online customers and business associates from contacting one of the world’s largest business conglomerates, thereby causing inconvenience and loss of business to the Complainant. The fact that the Domain names point to a blank page and a free parking page respectively furthermore distorts and tarnishes the Complainant’s trade name and trade mark.

The Complainant furthermore alleges that the Respondent has denied that it offered to transfer the Domain names to the Complainant for the amount of USD 5,000, which indicates that the Respondent is seeking substantial and unrealistic compensation in excess of the direct out of pocket expenses incurred in registering the two Domain names.

Finally, the Respondent supposedly violated its Domain Registration Agreement by (1) giving false and improper information to the registrar; (2) using a name not related to the Respondent; (3) using an address of another business, namely Mouthshut.com; and (4) using a trade name that is non existent.

B. Respondent

Identical or Confusingly Similar

The Respondent contends that the Complainant failed to establish that the Complainant’s use of the terms “al ghurair” and “ghurair” as trade names created actual trademark or service mark rights in the terms.

The Respondent does acknowledge the Complainant’s rights in the registered trademark as described above. However, in the absence of either the term “al ghurair” or “ghurair” in this exclusively figurative trademark, the Respondent argues that the Complainant failed to establish registered trademark or service mark rights in these terms.

The Respondent furthermore argues that the Complainant failed to establish common law trademark or service mark rights in the term “(al) ghurair”. According to the Respondent, the Complainant merely succeeded in establishing its trade name rights in these terms. However, the Complainant did not manage to establish that the term “(al) ghurair” acquired secondary meaning in the eyes of the public with respect to the Complainant and its offerings. The mere fact that the Complainant operates companies on a worldwide basis under the name “Al ghurair Group” alone is, according to the Respondent still, insufficient to establish this prerequisite of a common law trademark or service mark finding.

The Respondent also alleges that the term “(al) ghurair” lacks inherent distinctiveness which therefore renders it unsuitable as a trademark or service mark.

In its objection to the procedural order and request for extension the Respondent argues that parties may only submit further pleadings upon request of the Panel, and that these should only be requested in “exceptional circumstances”. Only cases involving the discovery of evidence not reasonably available at an earlier stage, or a new legal authority, or arguments of the other party which could not be anticipated, are at hand, can a case be qualified as “exceptional”, thus allowing additional submissions. A failure on the part of the Complainant to submit minimally satisfactory evidence of rights in a trademark or service mark does not constitute an exceptional or proper circumstance for the Panel to request further information from the Complainant. Moreover, according to the Respondent still, the Panel failed to substantiate why an “exceptional case” requiring additional submissions would be at hand.

Finally, the Respondent argues that the restriction in the procedural order limiting the right of the Respondent to comment exclusively on any supplemental evidence submitted by the Complainant, amounts to procedural unfairness. According to the Respondent, it precludes the Respondent from addressing other matters raised in the Complaint which it elected not to address by focusing on the issue of legitimate rights in the trademark instead.

In its response to the supplementary evidence submitted by the Complainant, the Respondent argues that the Complainant failed to establish any (un)registered trademark rights in the term “ghurair” given the fact that the report submitted focused exclusively on the term “al ghurair”. Combined with its arguments as contained in the response, the Respondent therefore asserts that the transfer of the domain name <ghurair.com> would not be warranted.

With respect to the domain name <alghurair.com>, the Respondent argues that in the absence of the recognition of the concept of a common law trademark in the United Arab Emirates, the Complainant could never succeed in establishing a common law trademark right in the term “al ghurair” within that territory as required in the present proceedings.

Rights or Legitimate Interests

The Respondent asserts that it has legitimate business plans for the Domain names, in that it previously proposed to further unnamed business partners that they adopt the term “ghurair” as a component of a name for a software related enterprise. Furthermore, the Respondent claims that it is still exploring the feasibility of using this term of Arabic origin “in today’s business environment”.

Registered and Used in Bad Faith

The Respondent argues that by virtue of the Complainant initiating negotiations on the transfer of the Domain name, its offer or counter-offer per definition did not amount to evidence of registration and/or use in bad faith.

6. Discussion and Findings

Preliminary issue

The first issue to be addressed is whether the Panel will consider the reply filed by the Complainant and the rejoinder filed by the Respondent on August 24, 2004.

Although the Rules provide for the submission of the complaint by the Complainant and the response by the Respondent, no express provision is made for supplemental filings by either party, except in response to a deficiency notification or if requested by the Center or the Panel.

However, under the Rules, the Panel shall conduct the administrative proceeding in such as manner as it considers appropriate (paragraph 10(a)). Moreover, the Panel has the discretion to determine the admissibility, relevance, materiality and weight of the evidence (paragraph 10 (d)).

The Panel holds the view that accepting the Complainant’s reply and the Respondent’s rejoinder does not prejudice either party in any manner, but merely serves to clarify certain issues hitherto obscure. The Panel, in exercising its sole discretion, therefore allows both supplemental filings.

(See e.g. Victor Chandler Limited and International Sports Marketing Limited v. Thierry Leray, WIPO Case No. D2002-0624; Voigtlдnder GmbH v. John Voigtlander, WIPO Case No. D2003-0095).

Moreover, in deciding on the procedural aspects of this case, the Panel bears the object and purpose of the UDRP mechanism in mind. Contrary to certain other domain name dispute resolution proceedings, such as those governing the adjudication of <.nl> domain names, with respect to domain name disputes falling within its scope, the UDRP mechanism is geared towards the settlement thereof in such a manner that laymen need not resort to professional legal assistance in conducting the proceedings.

With a view thereto, the Panel issued Procedural Order No. 1, thereby elucidating the difference between trademarks and trade names, thus enabling the Complainant to bear this distinction in mind when filing its supplementary evidence. Subsequently, the Respondent used the opportunity given, to file a reaction to the evidence thus submitted. Both parties having now had equal opportunities to bring their view with respect to the “identical or confusingly similar” requirement to the fore, the debate on this issue from this point in the proceedings was now closed.

Bearing in mind the “extra” opportunity given to the Complainant and subsequent reaction by the Respondent with respect to the aforementioned requirement, the Panel, upon its request, granted the Respondent an “extra” opportunity to clarify its view on the two remaining issues as hand, namely the “rights or legitimate interest” and “registered and used in bad faith” requirements by issuing Procedural Order No. 2.

However, the Respondent did not use this opportunity to file supplementary evidence on these two remaining issues, but attacked once more the “identical or confusingly similar” arguments of the Complainant. Consequently, given the absence of any new statements or evidence submitted on the issues required, the Panel decides not to consider the Respondent’s amended response. As a result, the subsequent documents filed, namely the Complainant’s reply to the amended response, the Respondent’s comments and Complainant's objection thereto, are all superfluous and thus left aside.

The merits of the case;

In accordance with Paragraph 4(a) of the Policy, in order to succeed in this proceeding and to obtain the transfer of the Domain names, the Complainant must prove that each of the three following elements are satisfied:

1. The Domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section 6.A);

2. The Respondent has no rights or legitimate interest in respect of the Domain names (see below, section 6.B); and

3. The Domain names were registered and are used in bad faith (see below, section 6.C).

Pursuant to Paragraph 15(a) of the Rules, the panel shall decide the Complaint on the basis of the statements and documents submitted in so far as admitted by the Panel as outlined above; and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

A. Identical or confusing Similar

The key issue in the present case, is whether the Complainant possesses rights to a trademark. In the absence of a registered trademark, the Panel is asked to resolve the question whether or not the Complainant’s alleged unregistered trademark “ghurair” is a trademark to which the Policy applies.

It is clear that the Policy is not limited in its application to registered trademarks; unregistered trademarks are also within its scope. It is, therefore, possible for an action to be brought under the Policy, in relation to an unregistered word, phrase or string of characters, but only so long as the unregistered mark is a “trademark”. For the unregistered mark to constitute a “trademark”, it must function as a trademark. That is to say, the unregistered mark must perform the function of distinguishing the goods or services of one person in trade from the goods or services of any other person in trade. (Brisbank City Council v. Warren Bolton Consulting Pty Ltd, WIPO Case No. D2001-0047.)

In this context, it is important to note that the Policy makes no distinction between localised and wide spread trademark rights. The Complainant thus need not establish exclusive rights across all territorial boundaries, only a bona fide basis for making the complaint. (UEFA v. Funzi Furniture, WIPO Case No. D2000-0710); (Australian Trade Commission v. Matthew Reader, WIPO Case No. D2002-0786).

It is thus sufficient that the Complainant establish that, at the time of filing the complaint, it has some rights in a trademark anywhere in the world. (Advanced Magazine Publishers Inc. v. Computer Dazhong, WIPO Case No. D2003-0668); (Kabushiki Kaisha ASTY and Kabushiki Kaisha F.D.C. Products v. Li Hai, WIPO Case No. D2003-0963).

To this effect, pursuant to Procedural Order No. 1, the Complainant submitted a brand awareness survey carried out among a diversified group of Dubai residents into the level of awareness of the various products and services provided by the Complainant under the term “(al) ghurair”. These include shopping malls, real estate, monetary exchange / financial services, aluminum profiles, schools, university and foods. With respect to the Al Ghurair shopping mall, the report shows a top of mind awareness of 76.6%, and an overall awareness of 94.8% of the respondents to the survey. The overall awareness of the Al ghurair University amounted to 53.4%; of the monetary and financial services 38.6%, and real estate 24.2% of the respondents to the survey.

Based on the foregoing, the Panel is satisfied that the Complainant uses the term “(al) ghurair” in such an manner as to distinguish its goods and services offered thereunder from those of its competitors.

However, in addition to the foregoing, for the Complainant to successfully rely on its usage of the term “(al) ghurair” as an unregistered trademark, it is necessary for the Complainant to show that he has rights therein. In other words, the national legal system of the United Arab Emirates where the Complainant uses the term “(al) ghurair” in the above manner, must provide for the protection of unregistered trademarks (Generalitat de Catalunya v. Thomas Wolf, Wolf Domains, WIPO Case D2002-1124).

Without purporting to elaborate on the protection of intellectual property within the United Arab Emirates, it suffices to say that in the absence of any registered trademark rights, this country’s legal system allows for a certain reliance on unregistered trademark rights in case of a dispute, if one of the entities can prove prior use, which is exactly what Complainant did. Inter alia through its awareness survey, Complainant furthermore showed that “(AL) GHURAIR” is a well-known trademark.

In conclusion, the Panel finds that the Complainant has rights in the (unregistered) word mark “(AL) GHURAIR” (the Mark).

The disputed domain names are <alghurair.com> and <ghurair.com>.

The Policy requires the Domain names to be “identical or confusingly similar” to the Complainant’s mark “(AL) GHURAIR”.

To this effect, the Panel recalls that the Policy places no limitation on the operative extent of the Mark, which the Complainant must show the Domain name(s) to be identical or confusingly similar to (Funskool(India) Ltd. v. funschool.com Corp., WIPO Case No. D2000-0796).

In the present case, the domain names <ghurair.com> and <alghurair.com> are identical to the Mark.

For these reasons, the Panel finds that the domain name <ghurair.com> and <alghurair.com> to be identical to the Mark.

B. Rights or Legitimate Interests

While the overall burden of proof is on the Complainant, the element of possible rights or legitimate interests of the Respondent in the disputed domain names involves the Complainant proving matters, which are often peculiarly within the knowledge of the Respondent. It involves the Complainant preforming the negative. This should, as indicated correctly in, Julian Barnes v. Old Barn Studios, WIPO Case No. D2001-0121 be approached as follows: the Complainant makes the allegation and puts forward what he can in support (e.g. he has rights to the name, the Respondent has no rights to the name of which he is aware, he has not given any permission to the Respondent). Unless the allegation is manifestly misconceived, the Respondent has to demonstrate his rights or legitimate interests in respect of the Domain names under paragraph 4(c) of the Policy.

According to Policy Paragraph 4(c), the following circumstances, if proved, demonstrate the Respondent’s rights or legitimate interests in the Domain names:

(i) The Respondent used or demonstrably prepared to use the Domain names or corresponding names in connection with a bona fide offering of goods or services prior to notice of the dispute; or

(ii) the Respondent (as an individual, business, or other organisation) has been commonly known by the Domain names, even if it has not acquired trademark rights; or

(iii) the Respondent is making a legitimate non-commercial or fair use of the Domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant’s Mark.

In the present case, the Panel finds that the Respondent failed to demonstrate his rights or legitimate interest in respect of the Domain names, since:

(i) The Respondent registered the domain names <alghurair.com> and <ghurair.com> on June 1, 1998, and June 2, 1998, respectively. However, during the 6 years following their registration, the Respondent failed to connect the Domain names to an active website. The parking of the domain name <ghurair.com> at “www.zoneedit.com” does not qualify as such.

Moreover, the Respondent’s assertion that it had legitimate business plans for the Domain names, in that it had proposed to further unnamed business partners that they adopt the term “ghurair” as a component of a name for a software related enterprise, is too vague.

With a view to Procedural Order No. 2, the Respondent was granted ample opportunity to further substantiate this claim by elaborating on this alleged intention and the submission of evidence in support thereof. The Panel thus draws an adverse inference from the Respondent’s failure to do so.

(ii) The Complainant asserts that in the absence of any results from an online search into the existence of a business operating under the name “ghurair group” within North California, it can be derived that the company is non-existent.

By contrast, the Respondent has not provided any information about the nature if any of its business activities to rebut the Complainant’s assertions. The Respondent has thus failed to demonstrate that its business has been commonly known by the Domain names.

Policy paragraph 4(c)(iii) is not applicable, given the absence of an active internet site connected to the Domain names.

In conclusion, the Panel finds that in the light of the absence of demonstrable preparation to use the Domain names, as well as the absence of evidence that the Respondent has been commonly known by the Domain names or that the Domain names are derived from a trademark in which the Respondent has rights, the Respondent lacks both rights as well as legitimate interest in the Domain names.

C. Registered and Used in Bad Faith

Policy paragraph 4(a)(iii) requires the Complainant to prove that the Respondent registered and has used the disputed domain name in bad faith. The language of Policy paragraph 4(a)(iii) requires that both bad faith registration and bad faith use be proved.

Policy paragraph 4(b) provides that the following circumstances are deemed to be evidence that a Respondent has registered and used the Domain names in bad faith:

(i) circumstances indicating that the Respondent has registered or has acquired the Domain names primarily for the purpose of selling, renting, or otherwise transferring the Domain names registration to the Complainant who is the owner of the Mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain names; or

(ii) the Respondent has registered the Domain names in order to prevent the owners of the Mark from reflecting the Mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the Domain names primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the Domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s Mark as to the source, sponsorship, affiliation or endorsement of its website or location or of a product or service on its website or location.

In the present proceedings, Policy paragraph 4(b)(i) applies. The Complainant relies on several credible arguments in support of the fact that at the time of registration of the Domain names, the Respondent was aware of the rights of the Complainant to the Mark. The Respondent subsequently failed to address this allegation.

Furthermore, the Complainant alleges that the Respondent refused to accept their offer of the amount of USD 5,000 for the transfer of the Domain names in compensation of the direct out of pocket costs. The Respondent acknowledges this fact, but seeks to rely on the claim that the initiation of negotiations by the Complainant of the transfer of the Domain names per definition precludes the Respondent’s refusal thereof from consisting an act of bad faith.

This argument is flawed. For bad faith to be found under Policy paragraph 4(a)(i), it is immaterial whether or not the Respondent initiated the offer to sell the Domain names. Rather, it is clear from the facts of the case that an offer or solicitation was inevitable. The conclusion is supported by the Respondent’s decision not to connect <alghurair.com> to an active internet site and to “park” <ghurair.com>, thus passively holding the Domain names (SAir Group v. Pat Reinhardt, WIPO Case No. D2000-0482), which in itself has been held to amount to use of those Domain names in bad faith (Telstra Corporation v. Nuclear Marshmallows, WIPO Case No. D2000-0003).

Based on the foregoing, the Panel finds that the Respondent registered and uses the Domain names in bad faith within the meaning of the Policy.

7. Decision

In the light of the above findings, the Panel’s decision is as set out below.

∙ The Domain names <ghurair.com> and <alghurair.com> are identical to the Complainant’s Mark (see paragraph 4(a)(i) of the Policy).

∙ The Respondent has no rights or legitimate interests in the Domain names <alghurair.com> and <ghurair.com> (see paragraph 4(a)(ii) of the Policy).

∙ The Domain names <alghurair.com> and <ghurair.com> were registered and are used in bad faith (see paragraph 4(a)(iii) of the Policy).

∙ This Panel directs that the Domain names <alghurair.com> and <ghurair.com> be transferred to the Complainant.

Madeleine De Cock Buning
Sole Panelist

Date: November 4, 2004