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 Respondent has registered the disputed domain name through a proxy service, though it is clear to the Panel that this Respondent has registered many domain names with a similar pattern of similarity to the Complainant's marks and activities. As Panels have repeatedly held in these cases, the Complainant's mark is clearly well known and would have been known by any Respondent - and this Respondent in particular - at the point of registration.
The Panel also notes the Complainant's reference to the decision in WIPO Case No. D2000-0003, Telstra Corporation v Nuclear Marshmallows, where the doctrine of 'passive holding' is outlined, and the fact that the disputed domain name is not presently being used other for a default or parking page (though at the time of this decision, it appears as if a 'redirect' to a page with automatically generated links is now in place). The present case fits the criteria for passive holding well. If one applies the summary found in the WIPO Jurisprudential Overview, version 3.0, para 3.3, all aspects are found: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity, and (iv) the implausibility of any good faith use to which the domain name may be put.
The Panel can also conclude that, at least in recent days through the application of redirection, the Respondent 'intentionally attempted to attract, for commercial gain, Internet users to its website', by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site (paragraph 4(b)(iv) of the Policy).
Moreover, the Respondent has manifestly engaged in a pattern of conduct of registering domain names containing the marks of others including the Complainant’s mark. As such, this Panel also finds that the activities of the Respondent meet the requirements set out in paragraph 4(b)(ii) of the Policy (registering a domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent has] engaged in a pattern of such conduct).
|