In the recent cybersquatting case of Disney Enterprises, Inc. v. ll aka Joe Comeau FA1336979 (Nat. Arb. Forum, August 31, 2010) a single member Panel was faced with a dispute over the domain www.DisneyOffer.com. Disney needs no introduction in this case. You should know who they are, unless you have been living in the one or two places where they haven’t been able to advertise or sell products and services. Either way, go to www.disney.com for anything your heart desires. Respondent filed a response to this dispute and presented some interesting arguments.

Paragraph 4(a) of the ICANN UDRP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.

The Panel quickly dispensed with the first prong, noting that the DISNEY mark is well established and that the disputed domain contained all of the mark including the additional word “offers.”

Moving to the second prong, the Panel noted that DISNEY had met its small initial burden of proving a prima facie case that Respondent lacked any rights or interests. This included claims that Respondent was not commonly known by the disputed domain. The Panel shifted the burden to Respondent and explained:

Respondent offers no evidence which might tend to show that he has rights in respect of  the domain name pursuant to Policy ¶4(c), or otherwise. Respondent offers no explanation as to why he registered a domain name which overtly references Complainant’s DISNEY trademark and he admits he has not built a website associated with the disputed domain name. Respondent states that the webpage referenced by the at-issue domain name is merely a holding page provided by the registrar, Go-Daddy. Respondent makes no claims regarding any intended use for the domain name.  Furthermore, Respondent makes no claims that he is somehow making a legitimate non-commercial or fair use of the domain name.

The Panel thus found that this second prong was proven. Moving to the third prong, bad faith, the Panel made some relevant findings. First the Paenl explained Respondent failed to present any justification that he did not register the domain name for any r3eason other then the value of the mark. Additionally, the Panel found that Respondent had registered well known domain names in the past using other marks such as EBAY and CHEVY.

The Panel found that Respondent offered to sell the disputed domain to DISNEY after recieving a cease and desist letter, which was is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(I). Respondent had argued that “If Respondent has to turn over the domain name to Complainant, it should at least in good faith have to give Respondent the renewal fees paid over the past few years.” Other interesting arguments presented by Respondent included:

Just because Complainant holds onto the name “disney” it does not have the right to squash and try to control every other holder of the word “disney” in the English speaking community or every domain name with the word “disney” in it. They own the market and brand name, but they do not own the word “disney” across the entire English language as long as those interests pose no threat or try to infringe upon their business.

Lastly, the Panel found that the disputed domain resolved to a parked site, featuring links to third parties offering competing goods and services. For all these reasons, the Panel found that DISNEY met its burden of proving all three prongs and ordered the domain be TRANSFERRED.

In the recent domain name dispute decision My Health, Inc. v. Top Tier Consulting, Inc. FA1332064 (Nat. Arb. Forum August 26, 2010) a single member Panel was faced with a dispute over the domain www.myhealth.com. Complainant is owns a trademark for MY HEALTH, related to, among other things, a website for medical professionals. Additionally, Complainant maintains a website at www.myhealthincorporated.com. Respondent filed a Response to the dispute, contending it registered the domain prior to the Complainant ever being in business.

Paragraph 4(a) of the ICANN UDRP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.

 Both parties made objections to the level of authenticity of documents required, but the Panel explained as follows: “The Panel reminds the parties of UDRP Policy Rules ¶¶ 3(b)(xv), 5(b)(ix), and 10(d), which in sum direct all parties to submit their complete evidence and that the Panel ‘shall determine the admissibility, relevance, materiality and weight of the evidence.’”

Moving onto the substance of the dispute, the Panel quickly found that the disputed domain was identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). In addressing the next prong, whether the Respondent had any rights or legitimate interests in the domain, the Panel explained that Complainant made its prima facie case. The Panel found that “Respondent’s failure to make an active use of the disputed domain name for the last three years is evidence that Respondent lacks rights and legitimate interests in the disputed domain name as Respondent is not using the disputed domain name for either a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).” The Panel also noted that the burden then shifted to Respondent to prove otherwise.

The Panel then detailed Respondents assertions about its preparations for the website as follows:

Respondent argues that it has made efforts to seek funding for its medical website and has thus demonstrated use and preparations to use the disputed domain name in connection with a bona fide offering of goods or services, namely personal healthcare and related services.  Respondent asserts that its goal has been to use the disputed domain name for a consumer healthcare portal website to put healthcare in the hands of patients and doctors, where appointments with doctors can be made, prior visits confirmed, physician consults made online, and informed decisions made when searching for a new physician.  Respondent further asserts that it has conducted a number of meetings to develop the website by either financing or joint ventures. 

Interestingly, the Panel agreed and found that these preparations were a bona fide offering of goods or services. The Panel moved onto the final prong, bad faith, and explained that there was no evidence presented by Complainant of any bad faith purchase or use of the disputed domain.

Respondent asserts, correctly, that there is no evidence that Respondent has either registered or used the domain name in bad faith as Respondent registered the disputed domain name more than fourteen months before Complainant or its MY HEALTH mark even existed.  Respondent indicates that it purchased the <myhealth.com> domain name in early February 2007 for $150,000.   Respondent further contends that this was long before Complainant’s first use of the MY HEALTH mark in mid-April 2008.  The Panel finds that Respondent’s purchase and registration of the disputed domain name nearly fourteen months before Complainant’s first use of its mark in commerce is evidence that Respondent has not engaged in bad faith registration as defined in the Policy.

The Panel, on its own noted that it could be determined that this was a case of reverse domain name hijacking, but since it was not raised nor briefed by either party it would not make such a finding. Ultimately, the Panel found that Complainant failed to establish all the elements and DENIED the request for transfer.

In the recent case of Fender Musical Instruments Corporation v. Christopher Ruth (Nat. Arb. Forum FA1333857 August 9, 2010), a single member Panel was faced with a dispute over the domain www.fendercustomshop.com. Complainant Fender Musical Instruments Corporation, is the well known seller of musical instruments, amplifiers, and accessories.  Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the FENDER mark (e.g., Reg. No. 805,075 registered on March 8, 1966). Fender maintains a website at www.fender.com. Respondent registered the disputed domain in 2003 and failed to respond to this complaint.

Paragraph 4(a) of the ICANN UDRP Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.

The Panel quickly dispensed with the first prong, noting that “Based on precedent and Complainant’s trademark registrations, the Panel finds Complainant has sufficiently proved its rights in the FENDER mark pursuant to Policy ¶ 4(a)(I).” The Panel found that Respondent merely added the descriptive phrase “custom shop “ at the end of the domain, which was not enough to distinguish it from the FENDER mark.

Moving to the second prong, the Panel explained that Fender must make a prima facie case that Respondent lacked any rights or legitimate interests in the domain. The Panel found as follows:

Here, Complainant claims Respondent made no use of, or any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.  However, Complainant fails to allege any facts related to Respondent’s use or provide any screen shots of Respondent’s resolving website.  The Panel finds Complainant’s assertions, without any supporting evidence or analysis, do not sufficiently establish Respondent lacks rights or legitimate interests in the <fendercustomshop.com> domain name.  Therefore, the Panel finds Complainant has failed to make a prima facie case showing Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii).

For these reasons, the Panel found that Fender failed to prove up its case, and the Panel declined to review the final element. Ultimately, the Panel DENIED Fender’s request for transfer of the domain.

In the recent domain name dispute decision of RapidShare AG , Christian Schmid v. N/A Maxim Tvortsov WIPO Case No. D2010-0696 (June 22, 2010) a single member Panel was faced with a dispute over the domain www.rapidbay.net. Complaint, Rapid Share is the well known file-hosting website which maintains a website at www.rapidshare.com. The respondent did not reply to the Complaint, but the domain was registered on September 22, 2009. Complainant owns a Community Trademark for RAPIDSHARE with a priority date of 2005.

Under Paragraph 4(a) of the ICANN UDRP Policy, a complainant has the burden of proving the following: (i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) That the respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) That the disputed domain name has been registered and is being used in bad faith.

The Panel addressed the first prong of the test, and noted that Complainant was unable to establish ownership rights to RAPIDBAY or to the word RAPID. The Panel compare the mark RAPIDSHARE with the disputed domain and could not find enough of a similarity. The Panel explained that there was no evidence presented by Complainant to show how the two names were confusingly similar. Interestingly, the Panel noted there was a disclaimer present on the website, based on a review of a cached page of the disputed domain, which noted they were not affiliated with RAPIDSHARE. Hoever, this was not addressed in the substantive portions of the decision. The Panel found that this prong was not met and declined to review the remainder of the prongs. The Panel ended its decision with this statement.

Where a complainant’s mark consists of a combination of two common descriptive or generic words, and only one of those words has been used in the disputed domain name, satisfying the requirements of Paragraph 4(a)(i) can be a formidable task. So it has proved in this case.

Ultimately, the Panel DENIED the request for transfer.

In the recent domain name dispute decision of World Wrestling Entertainment Inc. v. Israel Joffe WIPO D2010-0860 (July 1, 2010) a single member Panel was faced with a decision over the domains www.wrestlemania26.com, www.wrestlemania27.com and  www.wrestlemania28.com. Complaint is the well known media and sports entertainment company responsible for much of the past few decades worth of wrestling entertainment. They maintain a website at www.wwe.com. WWE claims rights to the WRESTLEMANIA mark dating back to 1985.

Respondent provided a short response to the Complaint which states in full as follows:

Cybersquatting (also known as domain squatting), according to the United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price. However if the person does not attempt to sell the name to the company, then no laws have been violated since intent to sell in bad faith has not been proven. In Virtual Works, Inc. v. Volkswagen of America, Inc. (a dispute over the domain vw.net), the [United States] Fourth Circuit Court of Appeals created a common law requirement that the cybersquatter exhibit a bad faith intent in order to confer liability. This means that domain names bearing close resemblance to trademarked names are not per se impermissible. Rather, the domain name must have been registered with the bad faith intent to later sell it to the trademark holder. This “bad faith” concept is reiterated in 15 U.S.C. § 1125 and U.S.C. § 1129. I never had any intention of selling the names to WWE and made no attempts to sell it to them. They have not proven that I tried to sell them the name, therefore no laws have been violated and I should be allowed to keep the domain names.

The Panel did not buy these arguments and explained that paragraph 4(a) provides a non-exhaustive list of examples to prove bad faith. The Panel noted that the websites were not active and through its own research appeared to never have been active. Regardless, the Panel still explored the Respondent sole reason for proving lack of bad faith and stated:

The panel in Telstra, supra, and scores of panels subsequently, have found that “warehousing” or simply registering and holding a domain name whose dominant feature is a famous mark, is use in bad faith. This is now a well-settled rule of decision in UDRP proceedings. See WIPO Overview, paragraph 3.2, Consensus View: “The lack of active use of the domain name does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether respondent is acting in bad faith. Examples of circumstances that can indicate bad faith include complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name.”

Ultimately, the Panel found that Complaint satisfied all three elements and ordered the domains be TRANSFERRED.

In a very interesting decision, a three member Panel appears to stretch the limits of what is acceptable evidence and methodology for UDRP cases. In the case of Ray Marks Co. LLC v. Rachel Ray Techniques Pvt. Ltd. FA1319966 (Nat. Arb. Forum, July 7, 2010) the Panel was faced with a dispute over the domain www.rachelray.com. Living in the U.S. most of us have all seen on t.v. or heard about Rachael Ray. She maintains a website at www.rachaelray.com  Many would even think this was a slam dunk case for her, since the disputed domain was merely missing a letter. However, Respondent put up a fight and both parties provided additional submissions. As a result the Panel was faced with making some interesting findings.

Paragraph 4(a) of the ICANN UDRP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.

Some of the relevant arguments presented by Respondent are as follows:

Respondent, Rachel Ray Techniques Private Limited, is a company incorporated in India on July 23, 2009.  Respondent offers products that involve laser ray technology.  Prior to incorporation, Respondent was operated as a partnership that began April 10, 2007….The Complaint misstates the date of the cease and desist letter.  It was sent on February 24, 2010, not February 24, 2009.  This is an attempt by Complainant to mislead the Panel by creating the impression that the letter was sent prior to Respondent’s incorporation on July 23, 2009….Respondent selected the name “Rachel Ray” for its business because the daughter of the technical partner of the original firm was named “Rachel”.  The initial name for the company was going to be “Rachel Lazer Techniques”, but, for reasons related to the practice of numerology, there was a decision to switch to “Rachel Ray Techniques”.

In the decision, the Panel presented the following findings:

Respondent is the owner of the disputed domain name, <rachelray.com>, and the date of creation is September 20, 2001.  The Respondent acquired the name some time later. Respondent is a corporation organized under the laws of India on July 23, 2009, after having been formed as a partnership on April 10, 2007.

With that in mind the Panel reviewed the elements and quickly found that the domain was identical or confusingly similar. The fascinating parts of the decision came during the examination of the second element. The Panel found that the burden was shifted to Respondent to prove it had rights or legitimate interests in the domain. It stated as follows:

Respondent claims to have formed a company in April 2007, which was incorporated in 2009, to market laser-based equipment and other items.  Respondent has supplied the Panel with scads of evidence (Annexes A through W), citing its business name on advertisements, telephone listings, invoices and Indian governmental documents, to support its contention.

However, the Complaint provided evidence that the disputed domain hosted websites that offered Complainants own trademark. Respondent chalked this up to error and lack of control over third party hosting, exclaiming that they are not technical people. Armed with that argument, the Panel made the following statement.

The Panel is presented therefore with competing claims on this issue.  UDRP proceedings provide for only limited evidentiary presentations, and it is difficult for the Panel to make fine assessments as to veracity.  One tool it can employ in this regard is to examine each party’s contentions for consistency.  On this issue, the Panel finds no inconsistency in Complainant’s assertions, whereas there is marked inconsistency with respect to those made by Respondent.  Respondent’s declaration about “not being technical people” is contradicted by Respondent earlier Additional Submission reference to its “technical partner”.  Moreover, that contradiction is heightened by Respondent’s claim to run a business that offers products “using the Technology involving Laser Rays”, which suggests that Respondent’s people must possess fairly sophisticated technical expertise.

Additionally, the Panel found that the lack of proof of sales volume or revenue in connection with products was fatal. Then the Panel turned its attention to the issue of whether Respondent was commonly known by the domain. AS stated earlier Respondents company name specifically includes the domain, but the Panel did not care.

However, it has not escaped the Panel’s notice that the date of Respondent’s origination, April 10, 2007, followed hard upon the date, March 27, 2007, of the USPTO registration of Complainant’s most basic trademark, RACHAEL RAY.  Is this coincidence or design?  Though Respondent is an Indian entity, the miracle of the Internet makes knowledge of such information as USPTO registrations almost instantaneous around the globe, and the Panel must keep in mind that the initiation of the Policy is predicated on the cunning and sophistication of global cyber-squatters. As discussed above, Respondent has provided the Panel with scant evidence of actually conducting business.  Consequently, the Panel cannot conclude that Respondent is  commonly known by that name, as is necessary for application of subparagraph 4(c)(ii).  The Panel believes that that subparagraph requires more than evidence suggesting a hastily formed “paper” company which adopts a name that is nearly indistinguishable from an established trademark and, soon after formation, acquires a corresponding domain name.

The Panel quickly resolved the bad faith element of the case. Ultimately, the Panel ruled that domain be TRANSFERRED.

There have been two interesting domain name disputes in two days, dealing with the same mark, resulting in the same manner, but for different reasons. IN the wacky world of domain name and trademark ownership, one can never really guess as to the facts and arguments presented by parties involved in disputes. In the first case, Mt. Vernon Mills, Inc. v. River City Holdings, LLC FA1325209 (Nat. Arb. Forum June 30, 2010) a single member Panel was faced with a dispute over the domain www.textraw.com. The Panel made the following relevant factual findings.

On September 8, 2006 Complainant purchased assets from the Georgia, USA corporation Textraw, Inc. which included the trademark registration for a trademark TEXTRAW which had been registered with the USPTO under number 2,710,148 on April 22, 2003. On November 28, 2009 the TEXTRAW trademark was cancelled. Complainant had no registered TEXTRAW trademark at the date of filing its complaint. In March 2009 Respondent obtained the domain name <textraw.com> through Complainant. Respondent makes no active use of the domain name.

Paragraph 4(a) of the ICANN UDRP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.

In light of the findings the Panel reviewed the first element and found that Complainant did not have adequate common law rights, since they failed to present evidence of adequate sales, advertising etc. or show that the mark has secondary meaning. By failing to satisfy the first element, the decision was essentially done, but the Panel chose to review the remainder of the elements. Ultimately the Panel DENIED the request for transfer.

In the second domain name dispute, Mt. Vernon Mills, Inc. v. River City Holdings FA1325214 (Nat. Arb. Forum, July 1, 2010) a single member Panel also DENIED a request for transfer regarding two domains, www.textraw.net  and www.textraw.org. The Panel noted that the parties entered into an agreement on March 16, 2009 which expired on March 15, 2010. The Domain Names were registered by Respondent during the course of that agreement. Complaint had filed a Notice of Opposition to Respondent’s application for federal trademark rights in TEXTRAW. A search of the USPTO records shows that on December 3, 2009 two applications were filed for TEXTRAW (Ser. No. 77885495 and 77885343) by a company named Synco Turf, LLC. The Panel also noted that Complaint has filed other court proceedings related to the ownership and the trademark in Court of Common Pleas, Greenville County, South Carolina, C.A. No. 2010-CP-23-4101.

In light of the court case and the TTAB case, the Panel explained that those proceedings will be critical to the outcome of this UDRP decision. As a result the Panel DENIED the relief requested by Complainant, without prejudice and may seek to refile a Complaint after the other proceedings are finished.

Walk over to any college campus bar and just say the words JAGER BOMB and you will likely get mixed reactions of joy and pain from the students. For years the JAGER BOMB has been a popular drink at bars across the country, and around the world. The people at Mast-Jaegermeister AG know this and made sure to get protection for this famous mixed drink. They have a registration for the JAGER BOMB mark and filed a UDRP domain dispute for the domain www.jager-bomb.com. In Mast-Jaegermeister AG v. John Marzlak FA1317337 (Nat. Arb. Forum, May 18, 2010) a single member Panel agreed with the liquor manufacturer and agreed to transfer the domain. Complainant maintains a website at www.jager.com.

The decision did highlight one relevant fact, which had respondent provided a response may have been fleshed out in more detail. The disputed domain was being used to promote the sale of Jager Bomb Shot Cups. Complainant made note of this and the Panel explained:

Respondent capitalizes on the confusingly similar domain name to attract Internet users seeking Complainant’s website to a website offering plastic cups for consumers to use with Complainant’s product.  Therefore, the Panel finds that such diversionary use of the disputed domain name for Respondent’s own commercial gain does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). 

There wasn’t anything too exciting or different about this decision. One side note, the domain www.jagebomb.com is parked with “coming soon” text and an info@jagerbomb.com email address. The domain has a privacy service so it is unclear whether Complainant owns it or whether it will be developed. Complainant appears to operate or at least authorize a website devoted to cups just for Jager bombs, namely www.jagerbombcups.com.

For those of you who don’t know, a company has a Federal Registration for the mark HOT RUSSIAN BRIDES. Complainant maintains a website at www.hotrussianbrides.com and they have previously been successful in using the UDRP to get some domains, such as www.hotrussianbrides.org, www.hotrussionbrides.com and www.hotrusianbride.com. However, they have also now lost two consecutive domain disputes when trying to get domains when their mark was incorporated into a  “post-domain.”

In the most recent case of Romantic Tours, Inc. v. LiquidNet US LLC (Whois Protection Dept.)  c/o Whois Agent FA1316585 (Nat. Arb. Forum, May 17, 2010) a single member panel was faced with a dispute over the domain www.agencyscams.com. Complainant alleged that the disputed domain contained information about Complainant and services which Complainant offered. What was interesting about this case though was Complainant’s allegations are based, not on the TLD (top level domain), but instead on the following post-domain: www.agencyscams.com/why/hotrussianbrides.

The Panel recognized that Complainant had a trademark registration for the mark HOT RUSSIAN BRIDES, but did not find the disputed domain to be confusingly similar to the mark. The Panel cited to Complainant’s previous earlier UDRP loss Romantic Tours, Inc. v. Whois Privacy Prot. Serv., Inc., FA 1316557 (Nat. Arb. Forum Apr. 28, 2010) (“The Panelist notes that the UDRP does not offer relief for infringements via use of registered trademarks in post-domains and that the proceedings under the UDRP may be applied only to domain names.”). For this reason the Panel found that the identical or confusingly similar prong was not met and therefore there was no need to review the remaining elements.  The Panel DENIED the request for transfer.

Let this be another lesson to domain dispute attorneys, simply having a U.S. trademark registration is not always enough. In the recent domain name dispute of A & H Sportswear Co., Inc. v. Hu Yanlin (WIPO D2010-0476, May 12, 2010) a single member Panel was faced with an interesting international dispute over the domain www.magicbra.com. Complainant is the manufacturer and designer of women’s apparel. Complainant is the owner of two trademark registrations for MAGIC BRA, 2756417 and 3335611 dating from as early as 1994. The Respondent filed a response and raised numerous objections. Some of Respondent noteworthy arguments include the following:

[T]he term “magic bra” is a descriptive term which not only refers to a brassiere which will make breasts look bigger but also refers to different methods of breast enlargement such as by nutritional, sports or medial operative means and the Complainant cannot claim exclusive rights over general and descriptive words which are used in accordance with their natural meaning….Complainant has no registered trade mark rights in China and to his knowledge does not sell its MAGIC BRA products in that country….[E]ven in the United States there appears to be several trade marks which incorporate the words “magic bra” and therefore even in the United States the term is common or descriptive…..

Interestingly when on looks at the USPTO database, there is another company who has two other trademark registrations, MAGIC BRA COLLECTION SWIM (Reg. No. 3552163) and MAGIC BRA COLLECTION (Reg. No. 3593248). The owner of those marks appears to maintain a website at www.magicbraswim.com. As Respondent noted, it does not appear as though Complainant is operating a website of their own.  The Panel agreed with the Respondent noting as follows:

The Complainant asserts that its MAGIC BRA mark is well-known and that it owns exclusive rights in relation to the mark and that people would associate the mark with products produced by the Complainant and that it has not authorised the Respondent to use its mark and essentially that the Respondent is using its mark to attract traffic to its website. However, none of these bald assertions are supported by any evidence or even by circumstantial evidence which would allow the Panel to draw appropriate inferences.

The Panel accepted Respondent’s assertions that it did not know about Complainant before registering the domain. Additionally, the Panel noted that since the disputed domain was written entirely in Chinese, and Complainant had failed to provide any evidence of registration or use in China, it would be unlikely to compete with Complainant. The Panel recognized that it was being used for a prking site, it was unclear to the Panel if that domain had been parked since its registration and if so, why Complainant waited seven years to complain. The Panel found that the two operated in separate geographical markets and found Complainant failed to submit evidence of bad faith. For all these reasons, the Panel DENIED the request for transfer.