The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy).
The screenshot provided by the Complainant, taken on 24 July 2017, notes that the domain name has ‘just been registered’ and includes generic sponsored links (that is, there are links to e.g. ‘Chinese food’ and banner ads for web hosting). At the time of the CAC’s attempt to contact the Respondent (2 August 2017) and the Panel decision (3 September 2017), the website at the disputed domain name did not contain any content.
As in the recent decision in CAC 101495 <BOLLORE-US.NET>, there is no evidence of the non-exhaustive examples of bad faith in registration and use found in paragraph 4(b) of the UDRP, so the task for the Panel is to look at all available facts and circumstances.
It is more difficult for a Panel to find bad faith where a Complaint is made immediately after registration, especially where nothing is known about the circumstances of the Respondent (e.g. a pattern of conduct) and there is no evidence of specific fraudulent or deceptive activity (e.g. emails using a domain name purporting to come from the Complainant). However, it is clear in UDRP decisions that 'passive holding' can constitute use in bad faith, especially where a Panel cannot realistically identify a situation where use would be in good faith (see WIPO Jurisprudential Overview, para 3.2 including its summary of the 'Telstra' line of cases (D2000-0003 <TELSTRA.ORG>); see further, for example, CAC 101602 <BANCAINTESA-ONLINE.INFO>). In the present case, it would be very difficult for a Respondent to demonstrate a good-faith use of a misspelling of such a distinctive mark; if the intention were, for instance, to provide a critical analysis of the Complainant, a good faith attempt to do so could use an aspect of the mark rather than a misspelling, and ensure that users were not confused through explanatory text on the website. Here, the Panel notes that the website at the disputed domain name contained advertising for a short period, and now provides no content. Moreover, the mark in question is distinctive, and has been in use for over a century; the Respondent has provided contact details in the United States of America, where the Complainant, which has a global reputation, is active and has for a long time been active. (Compare, in this regard, the decision in CAC 101570 <KALMARPARTS.NET>, a passive holding case where use in bad faith was not made out to the satisfaction of the Panel, in particular due to the failure of the Complainant in that case to create a presumption that the Respondent must have been aware of the Complainant's rights when it registered the disputed domain names, in light of the nature of the business in question).
The Respondent has taken no positive steps, to the knowledge of the Panel, to displace the possible likelihood of confusion. Moreover, the deliberate registration of a name combining a version of the name in which rights are held creates a clear presumption of knowledge and intention. The apparent position whereby no valid postal address has been supplied does not assist the Respondent either, as it raises the possibility that steps were taken to obscure the Respondent's identity, especially in light of the very recent registration.
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