Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the disputed domain name is identical or confusingly similar to the Complainant's trademark; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
1. The Panel accepts that the disputed domain name is confusingly similar to the Trademark as it fully incorporates the Trademark and differs from it only in the lack of apostrophes, which cannot be reproduced in a domain name anyway. Further, it is well established that the specific top-level domain name generally is not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between the complainant's trademark and the disputed domain name.
2. The Complainant has substantiated that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel finds that the Complainant has fulfilled its obligations under paragraph 4(a)(ii) of the Policy. The Respondent did not deny these assertions in any way and therefore failed to prove any rights or legitimate interests in the disputed domain name.
Based on the evidence before the Panel, the Panel cannot find any rights or legitimate interests of the Respondent either. In particular, the Respondent’s use of the disputed domain name to forward Internet users to a pay-per-click parking page does not constitute a bona fide offering of goods and services under paragraph 4(c)(i) of the Policy.
3. With regard to the bad faith registration element, having carefully considered the facts contained in the case file, the Panel finds that the Complainant has not provided sufficient evidence with regard to the Respondent’s actual knowledge of the Complainant’s trademark rights at the moment of time the Respondent registered the disputed domain name and that, therefore, the Complainant failed to meet its burden of proof in this regard.
The disputed domain name includes the words "pop in" and "cooking", which are terms of the English language. Furthermore, the omission of the letter "g" at the end of the word "cooking" corresponds to colloquial English. As a result, the Panel considers that the term "pop in cookin" is not inherently highly distinctive but rather a generic and descriptive term.
Based on the facts and the evidence provided by the Complainant, the Respondent must not necessarily have been aware of the Complainant when registering the disputed domain name. The disputed domain name was registered on February 8, 2011, and the Complainant had just one registered trademark in Japan at that time. The Complainant has not provided any evidence with regard to the use of its trademark in 2011, neither in relation to Japan, where its trademark was registered back then nor to the USA, where the Respondent is located. In particular, the Complainant has not provided any turnover figures or advertising expenditure which would evidence any use of the Trademark in the USA or even in Japan in 2011. The fact that the Complainant's trademark is now used in the USA and can be found in search engines does not allow conclusions to be drawn as to what the situation was like in 2011. Such evidence is not sufficient for a finding that the Respondent was probably aware of the Complainant’s trademark at the time of the registration of the disputed domain name.
Consequently, the Panel concludes that the third element of the Policy has not been met on the present record in these Policy proceedings and that the Complaint must be denied.
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