ARBITRATIONANDMEDIATION CENTER

EXPERT DETERMINATION LEGAL RIGHTS OBJECTION
Right At Home v. Johnson Shareholdings, Inc.
Case No. LRO2013-0030

1. The Parties
Objector is Right At Home of Omaha, Nebraska, United States of America represented by
Faegre Baker Daniels LLP, United States.
Respondent/Applicant is Johnson Shareholdings, Inc. of Racine, Wisconsin, United States, representedby Steven M. Levy, United States (the “Respondent”).

2. The applied-for gTLD string
The applied-for gTLD string (the “String”) is <.rightathome>.

3. Procedural History
The Objection was filed with the WIPO Arbitration and Mediation Center (the “WIPO Center”) on
March 13, 2013, pursuant to the New gTLD Dispute Resolution Procedure (the “Procedure”).
In accordance with Article 9 of the Procedure, the WIPO Center has completed the review of the Objection
on March 21, 2013 and has determined that the Objection complies with the requirements of the Procedureand the World Intellectual Property Organization Rules for New gTLD Dispute Resolution for Existing Legal
Rights Objections (the “WIPO Rules for New gTLD Dispute Resolution”).
In accordance with Article 11(a) of the Procedure, the WIPO Center formally notified Respondent of the
Objection, and the proceedings commenced on April 17, 2013. In accordance with Article 11(b) and relevant
communication provisions of the Procedure, the Response was timely filed with the WIPO Center on
May 15, 2013.
The WIPO Center appointed Robert A. Badgley as the Panel in this matter on June 13, 2013. The Panelfinds that it was properly constituted. The Panel has submitted the Statement of Acceptance andDeclaration of Impartiality and Independence, as required by the WIPO Center to ensure compliance with
Article 13(c) of the Procedure and Paragraph 9 of WIPO Rules for New gTLD Dispute Resolution.

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4. Factual BackgroundRespondent Johnson Shareholdings, Inc. is a wholly-owned subsidiary of S.C. Johnson & Son, Inc. (“SCJohnson”). SC Johnson, which has existed for decades, is a major manufacturer of various consumer
household products, in areas including house cleaning, pest control, air care, shoe care, and food storage,
with famous brand names such as Windex, Pledge, Glade, Raid, Ziploc, and Kiwi. SC Johnson generates
more than USD 9 billion in annual sales, and its products are made, marketed, and sold in many countries.
SC Johnson has used the mark RIGHT@HOME (stylized) to provide housekeeping information in the fields
of cleaning, arts and crafts, interior decorating, cooking, landscape gardening, and space management for
closets, garages, and crawl spaces. SC Johnson’s first use in commerce for these various fields ofinformational activity range between 2008 and 2010, and this mark was registered with the United States
Patent & Trademark Office on November 2, 2010.
Respondent asserts, and there is no evidence to the contrary in the record of this case, that Objector neverobjected to SC Johnson’s registration or use of the RIGHT@HOME mark prior to the commencement of thisLRO proceeding.
By agreement effective April 1, 2012, SC Johnson licensed use of the RIGHT@HOME mark and other marks
to Respondent and authorized Respondent to seek gTLD registrations for various character strings including“rightathome”.
In its application to register the String, Respondent stated:“The intended future mission and purpose of the .RIGHTATHOME gTLD is to serve as a trusted,hierarchical, and intuitive namespace provided by SC Johnson for SC Johnson’s customers, andInternet users in general. …
The .RIGHTATHOME gTLD is intended to be one of those .BRAND gTLDs, with the goal of protecting
SC Johnson’s online presence and identity; expanding its marketing and promotion efforts; providing
a secure channel for Right@Home(TM) content, and offering a platform through which to consolidate
many of the intellectual property activities of SC Johnson.”
Respondent also maintains a website at <rightathome.com>, at which site one finds recipes, cooking tips,
food storage tips, coupons for SC Johnson’s various products, and so forth.
Objector describes itself as an “international franchise organization” based in the United States and founded
in 1995. Objector provides home healthcare services in more than 250 locations on six continents.
The home care services offered by Objector include meal preparation, medication reminders, dressing andbathing assistance, cleaning, errands, and the like.
Objector markets its services under the RIGHT AT HOME mark, which is registered in the United States andseveral other countries. Objector also holds numerous international registrations for stylized marks featuring
the words RIGHT AT HOME – IN HOME CARE & ASSISTANCE. Objector first used the mark RIGHT ATHOME to identify and distinguish its services in commerce in 1995.
According to Objector’s president, RIGHT AT HOME is the company’s “only manner of identifying itself to theconsuming public, and has been since 1995.” Respondent also operates a website at <rightathome.net>.
Respondent notes that various third parties have registered domain names <rightathome.biz>,<rightathome.us>, <rightathome.mobi>, <rightathome.info>, <rightathome.org>, <rightathome.co.uk>, and<rightathome.de>, and asserts that Objector has never objected to the use of these domain names by suchthird parties.

page 3As Objector points out, there are various third parties using the marks RIGHT AT HOME or RIGHT@HOME(word or stylized) for various goods or services including pharmaceutical services, home improvement andrestoration services, and child-safety products.
According to Objector, it made contact with Respondent prior to commencing this LRO proceeding, but theparties were unable to reach an amicable resolution.

5. Parties’ Contentions
A. Complainant/Objector
Objector raises arguments under each of the eight non-exclusive factors relevant to a determination under
the Procedure, which are set forth below in the respective discussion of each of those factors. On a larger
scale, though, Objector raises a few overarching points. First, Objector asserts that allowance of the String
could result in third-party registrations of domain names and “could easily result in the proliferation of
domains that infringe the rights of Objector.” According to Objector, this prospect will create a “considerable
burden of constant vigilance with respect to the gTLD.” Also, Objector further stresses that the mark RIGHTAT HOME is its only way of identifying itself to the consuming public.
B. Respondent/Applicant
Respondent also raises points under each of the eight non-exclusive factors, as will be set forth below. In
addition, Respondent stresses that its contemplated use of the String is entirely legitimate, and that
Respondent and Objector offer goods and services in decidedly different spheres of commercial activity.
Respondent also argues that Objector’s fear of having to undertake heightened vigilance to police its
trademark rights is misplaced, and that vigilance is in any event a burden that any mark owner must willingly
shoulder.

6. Discussion and Findings
For the reasons set forth below, the Panel concludes that this Legal Rights Objection is unavailing andshould not be sustained.
Objector bears the burden of proof. Procedure, Section 3.5. The prefatory comments to the eight factors to
be considered by a Panel under the LRO Procedure state that the Panel:… will determine whether the potential use of the applied-for gTLD by the applicant takes unfair advantage ofthe distinctive character or the reputation of the objector’s registered or unregistered trademark or service
mark (‘mark’), … or unjustifiably impairs the distinctive character or the reputation of the objector’s mark …,
or otherwise creates an impermissible likelihood of confusion between the applied-for gTLD and theobjector’s mark…
Procedure, Section 3.5.2. The use of the terms “unfair,” “unjustifiably,” and “impermissible” as modifiers,
respectively, of “advantage,” “impairs,” and “likelihood of confusion” in Section 3.5.2 suggests that there must
be something more than mere advantage gained, or mere impairment, or mere likelihood of confusion for an
Objection to succeed under the Procedure. It seems, rather, that there must be something untoward – even
if not to the level of bad faith – in the conduct or motives of Respondent, or something intolerable in the stateof affairs which would obtain if the Respondent were permitted to keep the String in dispute.
The foregoing concepts are not uniformly defined or understood in the international trademark community.
Indeed, the word “unfair” in the context of “unfair competition” is a notoriously elusive concept. An excellent
and colorful discussion of the quicksilver quality of that term may be found in McCarthy’s treatise, wherein it
is observed: “The word ‘unfair’ is no more precise than many other legal terms whose purpose is to give

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discretion to a judge, such as ‘reasonable’ or ‘adequate.’” J. Thomas McCarthy, McCarthy on Trademarks
and Unfair Competition 4th (Thomson Reuters/West) Section 1:8.
To aid interpretation of this general concept, the Procedure sets forth eight non-exclusive factors whichshould be considered by the Panel when applying the Section 3.5.2 standards to the facts of this case.
These factors may be viewed collectively as analytical proxies for the more general concepts discussed
above. The Panel underlines that as these 8 factors are stated to be nonexclusive, it thereby leaves room
for the interpretation of this general concept. It also bears noting that the relevant importance of each factor
is not fixed in advance of the Panel’s inquiry; rather, depending on the facts and circumstances of eachcase, some factors may prove more significant than others. Deciding a case under the LRO Procedure isnot simply a matter of tallying the factors (e.g., 5-3) and declaring the winner on that basis.
With the foregoing understanding of how the concepts and factors of the LRO Procedure work together, thePanel reaches the following findings and conclusions under the eight factors.
1. Whether the applied-for gTLD is identical or similar, including in appearance, phonetic sound, or
meaning, to Objector’s existing mark.
The parties essentially agree that the String here is at least similar in all relevant respects to Objector’s
RIGHT AT HOME mark. The Panel finds that the word “at” and the symbol “@” are essentially synonymous
in Internet parlance and concludes that this factor weighs in favor of Objector.
2. Whether Objector’s acquisition and use of rights in the mark has been bona fide.
Respondent does not seriously dispute for purposes of this proceeding that Objector’s use of, and rights in,
its RIGHT AT HOME mark are bona fide. The Panel finds that this factor weighs in favor of Objector.
3. Whether and to what extent there is recognition in the relevant sector of the public of the sign
corresponding to the gTLD, as the mark of Objector, of Applicant/Respondent or of a third party.
On the record here, there is little doubt that a relevant sector of the public associates the RIGHT AT HOME
mark with Objector’s home care services. The record also supports the conclusion that some sector of the
public associates the RIGHT@HOME mark with Respondent’s parent SC Johnson. As noted above, thatmark is duly registered and has been used for several years in commerce to provide information regarding
various household products and activities. The web pages accessible at SC Johnson’s“www.rightathome.com” site also appear very well developed.
Objector also points out that certain third parties have made use of the RIGHT AT HOME or RIGHT@HOME
marks in the fields of pharmaceuticals, home remodeling, and child-safety products. Respondent assertsthat such third-party use actually undercuts Objector’s argument. The Panel agrees. It seems common
ground in this proceeding that a variety of companies have used RIGHT AT HOME or RIGHT@HOME to
identify and distinguish goods or services in a variety of fields, and seem to have coexisted in theirendeavors. Objector has not, as far as this record reveals, objected to SC Johnson’s use of
RIGHT@HOME, or SC Johnson’s operation of a website at “www.rightathome.com”, or the third-party usesof RIGHT AT HOME and RIGHT@HOME marks.
The Panel finds that this factor favors Respondent.
4. Applicant’s/Respondent’s intent in applying for the gTLD, including whether
Applicant/Respondent, at the time of application for the gTLD, had knowledge of Objector’s mark, or
could not have reasonably been unaware of that mark, and including whether Applicant/Respondent
has engaged in a pattern of conduct whereby it applied for or operates TLDs or registrations in TLDs
which are identical or confusingly similar to the marks of others.

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The Panel first observes that, while the Parties did not specifically address the question whether Respondent
was actually aware of Objector’s mark at the time it applied for the gTLD, it seems fair to infer that
Respondent, or at least its parent SC Johnson, had such knowledge. SC Johnson is a major corporation
with a wide variety of successful brands, and corresponding trademarks. It is difficult to imagine Respondentor its parent being unaware of Objector’s mark. In any event, Respondent does not specifically deny that it
had knowledge of Objector’s RIGHT AT HOME mark at the time it applied for the String.
Objector also asserts that Respondent should be charged with constructive knowledge of the RIGHT ATHOME mark, by virtue of the mark’s registration. The Panel need not decide whether constructive
knowledge, by itself, may be a decisive consideration under this factor of the LRO Procedure. Rather, thePanel concludes on a balance of probabilities that Respondent was probably aware of Objector’s mark.
Such knowledge, however, does not end the inquiry under this factor.
With respect to any pattern of conduct whereby Respondent has applied for or used other TLDs which areconfusingly similar to the marks of others, there is no allegation or evidence presented in this record that
Respondent has done any such thing.
Finally, with respect to the overarching concern of this factor, viz., Respondent’s intent in applying for theString, the Panel concludes that Respondent’s intent was bona fide. Respondent’s stated explanation in its
application boils down to its “goal of protecting SC Johnson’s online presence and identity; expanding its
marketing and promotion efforts; providing a secure channel for Right@Home(TM) content, and offering aplatform through which to consolidate many of the intellectual property activities of SC Johnson.” This
explanation seems quite plausible for a major marketer of numerous household consumer goods, and it
appears consistent with the marketing activities which have been undertaken at the “www.rightathome.com”
website operated by SC Johnson.
In sum, the Panel finds nothing untoward in Respondent’s intent here. This factor favors Respondent.
5. Whether and to what extent Applicant/Respondent has used, or has made demonstrable
preparations to use, the sign corresponding to the gTLD in connection with a bona fide offering ofgoods or services or a bona fide provision of information in a way that does not interfere with thelegitimate exercise by Objector of its mark rights.
Much of what was said above in connection with the fourth factor is equally applicable here. Respondent’s
parent has been using RIGHT@HOME as a mark and at a website for several years for legitimate purposes.
Under this head, Objector asserts that “Applicant/Respondent’s intent to open the gTLD to third party
registrations will likely result in the proliferation of domains within that gTLD that infringe upon the rights of
Objector.” By way of example, Objector notes that “a third party could register<ILoveMyMother.rightathome> or <healthcare.rightathome>.”Respondent replies that it “has used its RIGHT@HOME mark since 2009 on [sic] connection with a bona fidebusiness and Objector’s fears are unsupportable.” Respondent also states that Objector has presented noevidence that its trademark rights have been infringed by the peaceful coexistence of the parties’ respective
marks. The lack of any evidence of past abuse, Respondent argues, is suggestive that such abuse isunlikely to occur in the future.
The Panel agrees with Respondent that Objector’s professed fears are largely speculative. In any event,Objector would have legal recourse if some party registered, for instance, <healthcare.rightathome> as adomain name and used it to host a website offering home care services in competition with Objector.
This factor weighs in favor of Respondent.
6. Whether Applicant/Respondent has marks or other intellectual property rights in the sign
corresponding to the gTLD, and, if so, whether any acquisition of such a right in the sign, and use of

page 6the sign, has been bona fide, and whether the purported or likely use of the gTLD by
Applicant/Respondent is consistent with such acquisition or use.
Again, it has already been found that Respondent’s parent SC Johnson has made use of RIGHT@HOME for
several years in connection with legitimate commercial activities.
Objector’s main argument under this head is that SC Johnson, and not Respondent itself, owns the
RIGHT@HOME mark. Respondent, however, has presented sufficient evidence in the record to establishthat it is a wholly-owned subsidiary of SC Johnson and is licensed to use the RIGHT@HOME mark (and isalso authorized to apply for the String in dispute here). The Panel finds it curious that, according to Objector,
the Parties had communicated prior to the commencement of this LRO proceeding and yet they apparently
did not clarify the relationship between SC Johnson and Respondent vis-à-vis the RIGHT@HOME mark.
In any event, it is clear that this factor favors Respondent.
7. Whether and to what extent Applicant/Respondent has been commonly known by the sign
corresponding to the gTLD, and if so, whether any purported or likely use of the gTLD by
Applicant/Respondent is consistent therewith and bona fide.
While it is clear that SC Johnson owns several famous trademarks for its various household products, therecord is rather threadbare on the issue whether SC Johnson or Respondent is “commonly known” by themark RIGHT@HOME. Respondent appears to argue that its bona fide actual use of that mark in connection
with goods and services means that it has become commonly known by that mark. This argument is not
persuasive, particularly since the LRO Procedure includes separate factors for Respondent’s bona fides andthe “commonly known” factor. This confirms that the factors should not be conflated. Respondent’s
evidence on the latter factor is too thin.
The Panel concludes on the record here that this factor weighs in favor of Objector, though this factor does
not appear to be as significant as others in the context of this dispute. As should be apparent by this point,
the bona fide use by Respondent’s parent of the RIGHT@HOME mark in a commercial field different from
Objector’s is the paramount consideration emerging from this analysis.
8. Whether Applicant’s/Respondent’s intended use of the gTLD would create a likelihood ofconfusion with Objector’s mark as to the source, sponsorship, affiliation, or endorsement of thegTLD.
Objector’s main point under this head is to repeat that “Respondent’s intention to allow third parties toregister domains within the gTLD is fraught with potential for abuse given the identity between the gTLD and[Objector’s] Mark.” Objector also repeats that the Mark RIGHT AT HOME “is the only manner in which[Objector] identifies itself to a worldwide consuming public.”
The Panel observes that, while Objector undeniably holds rights in the word mark RIGHT AT HOME, it also
owns and uses the stylized mark which features the words “RIGHT AT HOME – IN HOME CARE &ASSISTANCE.” That mark on its face helps to distinguish Objector’s services from those offered by others
who use RIGHT AT HOME or some similar mark for different goods and services. Thus, it may not be
entirely accurate for Objector to claim that RIGHT AT HOME is its sole means of reaching the relevantpublic. Respondent urges the Panel to employ the multifaceted test for “likelihood of confusion” set forth in
the case In re E. I. DuPont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973). Briefly stated, the DuPont
test calls for the consideration of 13 factors, identified in shorthand terms as follows: (1) appearance, sound,connotation, and commercial impression; (2) the goods or services; (3) the trade channels used;(4) circumstances of the sales; (5) fame of the prior mark; (6) similar marks in use; (7) actual confusion;(8) concurrent use of the competing marks; (9) variety of goods; (10) market interface; (11) right to exclude
others; (12) potential confusion; (13) any other fact. The DuPont factors are not necessarily given equal
weight.

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Despite Respondent’s invitation, the Panel need not conduct a full-blown DuPont test to the facts in the
instant case, especially since certain of the considerations set forth in the DuPont test have already been
touched upon by the Panel. Some considerations emerging from a DuPont analysis may be briefly
mentioned. The fourth factor, for instance, considers whether consumers are likely to be casual andunsophisticated (and hence likely to be confused) or careful and sophisticated. In this connection, it is notreadily apparent that people seeking Objector’s home healthcare and related services, either for themselves
or for a loved one, are apt to be impulse buyers easily misled by another party using RIGHT AT HOME
(or RIGHT@HOME) as a mark in connection with unrelated goods and services.
Similarly, as respects DuPont factor (2), the Panel concludes that there is little or no overlap between thehome healthcare and related services offered by Objector and the various forms of information and related
goods (e.g., food storage tips and Ziploc bags) offered and to be offered by Respondent.
With respect to DuPont factor (5), Objector has presented no evidence supporting a conclusion in thecontext of the present proceeding that its RIGHT AT HOME mark is famous.
With respect to DuPont factors (7) and (8), the Panel notes that no evidence of actual confusion has beenpresented in this record, and this lack of evidence is underscored by several years of concurrent use of themarks RIGHT AT HOME and RIGHT@HOME by the parties.
Most of the other DuPont factors either have already been addressed, at least obliquely, or do not figure as
particularly significant in the context of this case.
In short, to the extent the DuPont test adds anything to the analysis set forth earlier, the test largely favors
Respondent.
The Panel concludes that this eighth factor under Section 3.5.2 of the Procedure weighs in favor of
Respondent.

7. Decision
For the foregoing reasons, the Panel rejects the Objection.

[signed]Robert A. Badgley
Sole Panel Expert
Date: July 3, 2013