Complainant is required under Paragraph 4(a)(i) of the Policy to prove that the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights. Complainant claims common law service mark or trademark rights arising from its New York Stock Exchange ticker symbol. Yet, Complainant's claim of common law rights is supported only by the existence of a ticker symbol whose sole use is alleged to be with investors in the context of investing. Furthermore, MRX has been a registered trademark of Alcon Laboratories, a company in Complainant's business field, pharmaceuticals, since September 15, 1981, and Complainant traded under a different ticker symbol until 1998, three years after the registration of the domain name in dispute. Complainant has not made a persuasive showing of proving that it has trademark rights in a mark that is confusingly similar to the domain name. The Panel finds that Complainant has failed to establish that the MRX ticker symbol functions as a common law trademark in which Complainant has rights. The Panel questions whether mere use of a stock ticker symbol with investors can ever rise to the level of creating common law "trademark rights" within the meaning of Paragraph 4 of the Policy because the ticker nickname use is not use of a brand name to identify the particular product or service of the proprietor. In any event, a finding that a stock ticker symbol has been used in a trademark sense sufficient to give rise to common law rights would require more compelling proof than has been presented by the Complainant here.
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