The Panel finds the disputed domain name to be confusingly similar to the Complainant's MOUNT GAY trade mark, based on a visual and aural comparison of the disputed domain name and the trademark. See Wal-Mart Stores, Inc. v. Traffic Yoon, WIPO Case No. D2006-0812, the test being whether Internet users would be likely to wonder whether there is an association between the domain name and the trademark owner: see SANOFI-AVENTIS v. Jason Trevenio, WIPO Case No. D2007-0648.
The Panel finds that the MOUNT GAY mark is distinctive and well known in many countries. The Complainant’s assertions that the Respondent is not commonly known by the disputed domain name and is not affiliated with the Complainant are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
Although the disputed domain name was registered only recently and has not been used for an active website, these circumstances do not preclude a finding of bad faith registration and use: see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, paragraph 3.2 and Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
Taking into account that the Complainant’s trademark is well known; the absence of a Response; and the failure of the Respondent to reply to the Complainant’s cease and desist letter, the Panel concludes that the Complainant's mark must have been in the Respondent's mind when registering the disputed domain name and that the Respondent did so with intent to divert Internet users away from the Complainant's website. Accordingly the Panel finds that the disputed domain name was registered and is being used in bad faith.
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