WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ORION CORPORATION v. Jang, Dong
Case No. D2012-2184
1. The Parties
The Complainant is ORION CORPORATION of Seoul, Republic of Korea, represented by Barun IP & Law, Republic of Korea.
The Respondent is Jang, Dong of Shelton, Connecticut, United States of America, represented by himself.
2. The Domain Name and Registrar
The disputed domain name <chocopie.com> is registered with Omnis Network, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 5, 2012. On November 5, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 5, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced November 8, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response November 28, 2012.
The Center received supplemental filing from the Complainant by email on November 23, 2012.
The Response was filed with the Center November 27, 2012 and November 29, 2012 respectively.
The Respondent sent a communication by email to the Center, on December 7, 2012, indicating that it had found additional supporting documents pertaining to its response and requesting an extension of the due date for Response to December 15, 2012, in order to translate them in English.
The Center replied to the Respondent, on the same day, informing that the Panel when duly appointed would have been informed of the Center’s receipt of any Supplemental Filing and that it would have been in the sole discretion of the Panel to determine whether to consider and/or admit the Supplemental Filing in rendering its decision, and whether to order further procedural steps, if any.
The Center appointed Luca Barbero, Moonchul Chang and James W. Dabney as panelists in this matter on December 28, 2012. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Having reviewed the case file, the Panel issued, on January 4, 2013, an Administrative Procedural Order (hereinafter referred to as the “Panel Order No. 1”), requesting:
“1. the Complainant to provide its comments in relation to the Respondent’s submissions as to the alleged non-distinctiveness of CHOCOPIE in the United States in 1998 (including any license or coexistence agreements that may exist concerning CHOCOPIE) and as to any negotiations that occurred between Complainant and Respondent prior to the filing of the present Complaint and any use of CHOCOPIE in the United States by complainant prior to 1998;
2. the Respondent to provide documents that may corroborate his statement that he registered the disputed domain name because he “wanted to manufacture and produce goods with the name of chocopie in the U.S. market”, including documents evidencing preparation to use the disputed domain name for such a purpose”.
The Center notified the Panel Order No. 1 to the parties on January 4, 2013. In the meantime, on January 4, 2013, the Center had received the supplemental filing from the Complainant by email.
On January 11, 2013, the Center received the Complainant’s submissions pursuant to the Panel Order No. 1. The Respondent’s reply to the Panel Order No.1 was received by the Center by email on January 12, 2013. The Complainant sent to the Center additional submissions by email on January 15, 2013.
4. Factual Background
The Complainant, Orion Corporation, was founded in 1956 in the Republic of Korea with the name Tong Yang Confectionery and changed its name into Orion Corporation in 2003. The Complainant is one of the biggest confectionary companies in the Republic of Korea, which produces biscuits, pies, chewing gum, chocolates, etc. and sells them both in the Republic of Korea and around the world, especially in China, Vietnam, and the Russian Federation.
The Complainant started producing confectionary under the trademark CHOCOPIE in April 1974 and registered the trademark CHOCOPIE with respect to “biscuits, pie, etc.” in class 30 in many countries since 1994. The Complainant submitted trademark certificates for CHOCOPIE, where the mark is reproduced in a stylized form, in various countries. Amongst others, certificates have been submitted for the following trademarks: Algerian Trademark No. 053763, filed on January 26, 1997; Australian Trademark No. 779605, filed on June 21, 1996; Austrian Trademark No. 170468, filed on January 9, 1997; Canadian Trademark No. 555,211, filed on March 30, 1999; French Trademark No. 96631430, filed on June 25, 1996; German Trademark No. 39628183, filed on June 26, 1996; Italian Trademark No. 00779911, filed on January 15, 1997; South African Trademark No. 01129, filed on January 30, 1996; United States Trademark No. 2086200, filed on October 11, 1994 and registered on August 5, 1997, claiming first use in 1974 commercial use as of the beginning of 1990, andNo. 3351832, filed on April 26, 2007 and registered on December 11, 2007.
The Complainant operates its official web site at the domain name “www.chocopie.co.kr”, which was registered on May 15, 1998.
The disputed domain name <chocopie.com> was registered on March 6, 1998 and is redirected to the Respondent’s web site “www.keeclean.com”, promoting cleaning services.
5. Parties’ Contentions
The Complainant states that CHOCOPIE is a well-known trademark in the Republic of Korea as well as abroad and submits the following supporting documents and statements:
- Excerpts from a book titled, “Trace of 40 years of Tong Yang Confectionery (currently, ORION CORPORATION)”, published in 1997, containing information on the volume of sales of the Complainant’s product in the Republic of Korea in April 1987 (USD 18,300,000.00), in April 1990 (USD 27,300,000.00), in January 1992 (USD 39,200,000.00) and in December 1996 (USD 48,600,000.00) and indicating that the Complainant’s amount of export of Chocopie products during 1996 amounted to USD 40,000,000.00, with exports in thirty countries;
- printouts of a publication “Expanding the Influence of ORION” showing that the Complainant has extended the range of business of Chocopie products since 1992, currently targeting the three major international markets in China, Vietnam and the Russian Federation;
- an article from the Korea Economic Daily dated October 28, 2009, reporting that, in 2008, “CHOCOPIE recorded sales of 80,000,000,000 KRW (USD 73,300,000.00) in Korea, 135,000,000,000 KRW (USD 123,700,000.00) in China, 24,000,000,000 KRW (USD 22,000,000.00) in Vietnam and 38,000,000,000 KRW (USD 34,800,000.00) in Russia”;
- an article from Seoul Economic Daily dated January 31, 2011 reporting that “according to the result of ORION’s temporary record, the sale in Vietnam for CHOCOPIE was proximately 110,000,000,000 KRW (USD 100,000,000.00) for the year 2010. The sales record of 26,800,000,000 KRW in Vietnam for 2007 skyrocketed to 56,200,000,000 KRW in 2008 and 92,700,000,000 KRW in 2009”;
- an article from Financial News reported on November 1, 2011 stating that that “ORION was famous for CHOCOPIE, and that CHOCOPIE was currently being sold around the world in more than 60 countries. In China, CHOCOPIE recorded sales of 100,000,000,000 KRW (USD 91,600,000.00) in 2010. In Russia, CHOCOPIE recorded sales of 40,000,000,000 KRW (USD 36,640,000.00) in 2010. Also, in Vietnam, CHOCOPIE recorded sales of 39,000,000,000 KRW (USD 35,700,000.00). In Iran, its popularity led to sales of 6000 boxes of CHOCOPIE in a single Carrefour store in just one month”;
- an article from Herald Economic dated July 18, 2012 reporting that “a television series titled “Falling Skies” produced by famous Steven Spielberg featured CHOCOPIE as a main prop in a kissing scene. Also, it was reported that CHOCOPIE was being sold 140,000,000 of pies each month in the world. And, CHOCOPIE recorded sales of 105,000,000,000 KRW (USD 96,200,000.00) over the past year in Korea”.
- statements published on the Complainant’s web site as to the consumer recognition of the Complainant’s trademark CHOCOPIE in China:
“CHOCOPIE, the most recognized and symbolic pie in Korea and also expanding overseas, was first embraced in the global markets by China. In July 2004, KOTRA (Korea Trade-investment Promotion Agency) conducted a consumer awareness survey on Korean brands in Beijing, Shanghai, Guangzhou, the three major cities in China, asking Chinese consumers if they knew about ORION’s CHOCOPIE. 55% of the answers were ‘yes’. In January 2002, the Chinese newspaper, People’s Daily and China Central Television (CCTV) conducted a consumer survey in all major cities in China, and according to their results, ORION’s CHOCOPIE took the number 1 spot in terms of market share for pie products in China, beating the company in second place by 58.2%. And, ORION CHOCOPIE has continuously taken over the top spot in major cities in China for cake products according consumer surveys”;
- statements published on the Complainant’s web site as to the market share of the Complainant’s Chocopie products in Vietnam:
“In the Vietnamese market, ORION’s most celebrated product ‘ORION CHOCOPIE’ is currently taking up 60% of the market share for pie products exclusively (AC Nielson, August)”;
- an excerpt of a book titled “Global Report” published by the Complainant stating that “recently at a Carrefour shop in Tehran, Iran, ORION CHOCOPIE set a new record of selling 6,000 boxes in just one month. This record has an incredible meaning behind the fact that it is the best sales record to occur at a single store since ORION was introduced overseas, something that has never been achieved even in Korea”.
The Complainant also states that, since the release of Chocopie products, Orion has sold, in total, approximately 14,200,000,000 of pies under the brand CHOCOPIE worldwide.
With reference to the distinctiveness of its trademark, the Complainant rebuts the Respondent’s statements that CHOCOPIE is no longer protected as a trademark since, notwithstanding the fact that it was determined that the sign CHOCOPIE had lost its distinctiveness as a trademark by a decision of the Patent Court of Korea on July 8, 1999, CHOCOPIE is still protected as a trademark, and recognized as a distinctive sign, with respect to the goods in class 30 in many countries.
The Complainant also highlights that the trademark CHOCOPIE was registered in the United States on August 5, 1997 with USPTO concerning the goods “pie and cookies, namely chocolate covered marshmallow filled sandwich cookies” in class 30 and states that, since United States trademarks are registered after a thorough examination of the USPTO, the registration of the trademark CHOCOPIE in the United States is in support of the fact that CHOCOPIE itself was considered as a source identifier and that CHOCOPIE was not descriptive of the nature of the designated goods in class 30.
The Complainant also states that the Respondent registered the disputed domain name when the registration of the trademark CHOCOPIE was valid in the United States as well as before the decision rendered by the Patent Court of Korea on July 8, 1999.
The Complainant also submitted that an opposition that had been filed against the trademark CHOCOPIE (Appl. No. 1,002,706) by the Complainant’s competitor Lotte Confectionery was rejected by the Canadian Intellectual Property Office on January 23, 2006 because the trademark CHOCOPIE was not deemed clearly descriptive of the character or quality of the goods in class 30, such as “biscuits, wafers, etc.” covered by the trademark.
The Complainant contends that the disputed domain name is identical to its trademark CHOCOPIE as it incorporates the Complainant’s prior registered trademark CHOCOPIE in its entirety.
As to the Respondent’s lack of right or legitimate interest in the disputed domain name, the Complainant states that the Respondent has no connection or affiliation with the Complainant and that it has not received any license or consent to use the trademark CHOCOPIE in a domain name or in any other manner.
The Complainant also states that the Respondent has never been known by the disputed domain name and has no right or legitimate interest in the trademark CHOCOPIE or the company name Chocopie.
The Complainant asserts that the Respondent’s use is contrary to bona fide offering of goods or services and legitimate interests, as the Respondent has used the trademark CHOCOPIE in the disputed domain name to cause confusion among Internet users between the disputed domain name and the Complainant’s official web site ”www.chocopie.co.kr” and to divert users to its web site “www.keeclean.com”, which is not related to Chocopie. The Complainant also states that the Respondent is plainly seeking to trade on the goodwill and reputation of the trademark CHOCOPIE.
As to bad faith registration, the Complainant states that the Respondent undoubtedly had knowledge of the Complainant’s famous trademark CHOCOPIE at the time of the registration of the disputed domain name. The Complainant further states that, when a well-known mark such as CHOCOPIE is used as a domain name by an entity that has no legitimate relationship with the trademark, this circumstance it is sufficient to demonstrate bad faith.
The Complainant also states that the disputed domain name is being used in bad faith, as the Respondent is intentionally misleading Internet users by using the disputed domain name in order to divert them to a totally different web site that has no association with Chocopie, published at the domain name <keeclean.com>, that promotes the activity of a company called Keeclean Management Inc. The Complainant states that the Respondent may thus generate unjustified revenues for luring in the consumers, and is illegitimately capitalizing on the fame of the trademark CHOCOPIE.
The Complainant also informs the Panel that it contacted the Respondent by email showing interest in the acquisition of the disputed domain name and that the Respondent’s representative replied requesting an amount of USD 110,000.00 for the transfer of the disputed domain name. The Complainant states that, since the Complainant determined that the Respondent’s proposed “transfer fee” to be exorbitantly high, it sent it a counter-proposal of KRW 50,000,000 (approximately USD 47,375.00) and, since the Respondent rejected the Complainant’s proposal, there was no more negotiations between the parties prior to filing of the Complaint.
The Respondent rebuts the Complainant’s contentions, stating that the disputed domain name is not identical or confusingly similar to the Complainant’s domain name <chocopie.co.kr>.
With reference to the Complainant’s trademark rights on CHOCOPIE, the Respondent states that decisions issued by the Court of Patents and by the Supreme Court in the Republic of Korea, stated that CHOCOPIE is not protected as a trademark and the Complainant cannot, therefore, invoke exclusive rights on it.
On this point, the Respondent states that also other confectionery companies in South Korea use CHOCOPIE as part of their trademarks, such as LOTTE CHOCOPIE, CROWN CHOCOPIE, HAITAI CHOCOPIE, and BINGLE CHOCOPIE. The Respondent also submitted that the Complainant’s competitor Lotte Confectionery Co, Ltd is the owner of a registered trademark for CHOCOPIE in China. In view of the above, the Respondent concludes that no company can claim trademark rights on CHOCOPIE as it is used by various entities as a common noun.
The Respondent states that it registered the disputed domain name legitimately in March 1998 as it had spent most of its life in the Republic of Korea and dreamed to manufacture and produce goods with the name “Chocopie” in the United States.
Regarding the Complainant’s statements as to the Respondent’s request for monetary compensation in return of the disputed domain name, the Respondent contends that the Complainant has intentionally approached it in bad faith and reiterates that the Respondent has no intent of confusing users.
The Respondent also submitted an Affidavit of Certification (translated from Korean into English and notarized by an attorney in Seoul), in which a Korean agent explained the negotiation the Respondent had with the Complainant as to the disputed domain name. Regarding such declaration, the Respondent asserts: “Complainant lured the Respondent into believing that the Complainant was to compensate the Respondent with $120,000.00USD. However, this was purely an attempt to entrap the Respondent and tried to gather as much evidence to portray the Respondent with having Bad Faith”.
6. Discussion and Findings
According to paragraph 15(a) of the Rules: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or a service 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.
A. Identical or Confusingly Similar
The first requirement that the Complainant needs to satisfy according to paragraph 4(a)(i) of the Policy is to provide evidence of identity or confusingly similarity with a trademark in which the Complainant has established rights.
In the case at hand, the Complainant relies on the trademark CHOCOPIE, which has been registered in several countries of the world, as per trademark certificates enclosed as annexes to the Complaint.
As mentioned in the paragraphs above, the Respondent submitted that the Complainant cannot invoke exclusive rights on CHOCOPIE since the Complainant’s trademark has been declared vulgarized in the Republic of Korea. To corroborate its assumptions, the Respondent also indicated that other companies own trademarks containing the wording “chocopie” in Korea and that the company Lotte Confectionery Co, Ltd is the owner of a trademark CHOCOPIE in other jurisdictions.
As a preliminary note, the Panel underlines that Policy is aimed at resolving disputes concerning allegations of abusive domain name registration and use and that, therefore, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. See, along these lines, Southwestern Association for Indian Arts, Inc. v. Indian Art of America and A. Mata, WIPO Case No. D2009-1774, citing Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store, WIPO Case No. D2002-0774 and Weber-Stephen Products Co. v. Armitage Hardware, WIPO Case No. D2000-0187. The Complainant registered its trademark in many jurisdictions including United States, even though it failed to protect its exclusive trademark right of Chocopie from Lotte at the patent court of the Republic of Korea. The Panel basically support the arguments and decisions of previous UDRP cases that the Complainant provides in the second supplemental filing.
Despite the fact that the trademark CHOCOPIE has been declared vulgarized in the Republic of Korea, the Panel notes that trademark registrations for CHOCOPIE have been granted by trademark offices in many countries of the world, including in the United States, where the Respondent is now based.
The Panel reviewed the decision cited by the Complainant, Owens Corning Fiberglas Technology, Inc v. Hammerstone, WIPO Case No. D2003-0903, in which it was stated: “Respondent, however, does appear to dispute that Complainant has any rights in the term "Cultured Stone," contending that the term is generic. The Panel notes, however, that Complainant owns a registration for the mark CULTURED STONE and that such registration carries with it a presumption that the mark is valid, i.e., not generic. Giving due deference to the determination of the United States Patent and Trademark Office, the administrative agency charged with responsibility for determining the registrability of marks, and in the absence of any evidence to the contrary, the Panel concludes that Complainant has rights in the mark CULTURED STONE”.
The Panel also reviewed the decision issued by the Canadian Trademark Opposition Board in 2006, which rejected an opposition brought by Lotte Confectionery Co., Ltd against the Complainant’s application for CHOCOPIE in Canada. Said decision highlighted the general principle in trademark law that marks considered to be descriptive in one or more jurisdictions might be considered to be only suggestive in another country and, therefore, can be protected as registered trademarks.
See, along these lines, Al Ghurair Group LLC v. Ghurair Group, WIPO Case No. D2004-0532 (“In this context, it is important to note that the Policy makes no distinction between localized and wide spread trademark rights. The Complainant thus need not establish exclusive rights across all territorial boundaries, only a bona fide basis for making the complaint. It is thus sufficient that the Complainant establish that, at the time of filing the complaint, it has some rights in a trademark anywhere in the world”) and Deutsche Telekom AG v. Oded Zucker, WIPO Case No. D2004-0749 (“The internet is an international medium and it has been held in numerous decisions that a complainant can rely on trade mark rights in countries other than those of the respondent or registrar. In any case, neither party in this case suggests that the Respondent intends to restrict his use of the Domain Names to countries where the Complainant does not have rights. According to the Complainant, the Respondent intends to exploit them by sale to the Complainant; if this is correct (a point which is discussed below), the Respondent’s intention is directed towards Germany and other countries where the Complainant has rights. According to the Respondent, he intends to use the Domain Names for a venture connected to trade in tea products and related merchandise. Even if credence is attached to this (also discussed below), it may be noted that he does not suggest that the business would be limited to countries where the Complainant does not have rights. The Panel therefore rejects the Respondent’s contention based on the territoriality of the Complainant’s rights”).
In light of the above, this Panel finds that the Complainant has satisfied its burden of proving ownership of trademark rights in CHOCOPIE and its identity to the disputed domain name, for the purpose of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests.
The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent may establish a right or legitimate interest in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
It is well-established that the burden of proof lies on the complainant. However, satisfying the burden of proving a lack of the respondent’s rights or legitimate interests in respect of the disputed domain name according to paragraph 4(a)(ii) of the Policy is potentially quite onerous, since proving a negative circumstance is always more difficult than establishing a positive one.
Accordingly, in line with the UDRP precedents, it is sufficient that the Complainant show a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name in order to shift the burden of production on the Respondent. If the Respondent fails to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy or on any other basis, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003 0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110; MetAmerica Mortgage Bankers v. Whois ID Theft Protection, c/o Domain Admin, NAF Claim No. FA852581; Banco Itau S.A. v. Laercio Teixeira, WIPO Case No. D2007-0912; Accor v. Eren Atesmen, WIPO Case No. D2009-0701).
In the case at hand the Complainant has made a prima facie case and the Respondent has failed to raise any convincing circumstance that could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name.
The Panel observes that there is no relation, disclosed to the Panel or otherwise apparent from the record, between the Respondent and the Complainant. The Respondent is not a licensee of the Complainant, nor has the Respondent otherwise obtained an authorization to use the Complainant’s trademark. There is also no indication before the Panel that the Respondent is commonly known by the disputed domain name.
The Respondent also failed to demonstrate that it made preparations to use the disputed domain name in connection with a bona fide offering of goods or services, or that it intends to make a legitimate, noncommercial or fair use of the disputed domain name. In fact, as mentioned above, the Respondent stated that it registered <chocopie.com> in 1998 as it spent most of its life in the Republic of Korea and it dreamt to manufacture and produce goods with the name “Chocopie” in the United States in the future. However, the Respondent, even after receipt of the Panel Order No. 1, in which the Respondent was specifically requested to provide documents that may corroborate its statements, has not submitted any evidence showing that it took concrete steps to use the disputed domain name in connection with such a project and the disputed domain name has been merely redirected to the Respondent’s web site “www.keeclean.com”, promoting cleaning services.
Thus, in light of the above, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name, in accordance with paragraph 4(ii) of the Policy.
C. Registered and Used in Bad Faith
In assessing bad faith requirement, the Panel preliminarily considers that, according to the evidence on records, chocolate snacks under the trademark CHOCOPIE were initially produced by the Complainant in 1970 and, due to the success of the products, other companies started producing its own products under the same trademark, that the Complainant apparently initially failed to contest, permitting the vulgarization of the trademark in the Republic of Korea, that was declared by the Korean Patent Court in 1999.
Notwithstanding said decision, which was issued after the registration of the disputed domain name, the Panel finds that, in the present case, the Complainant has provided evidence that the trademark was, both prior to the registration of the disputed domain name and subsequent to that date, well-known in the Republic of Korea and internationally.
In light of the above and of the fact that the Respondent, although currently living in the United States, is a national Korean, spent most of its life in the Republic of Korea and explicitly stated that it registered the disputed domain name to produce its own Chocopie products, the Panel finds that the Respondent was, more likely than not, aware of the Complainant’s trademark at the time of registration.
Moreover, the Respondent stated that the disputed domain name was acquired with the purpose of promoting its business in the United States, where CHOCOPIE was already registered since several years as a trademark by the Complainant. Therefore, the Respondent acted with intent to profit from a name that was identical to valid trademark in multiple jurisdictions, and, according to this Panel, this circumstance is an element from which it can also be inferred bad faith under the Policy.
In addition, since the Respondent has substantially not used the disputed domain name for at least 14 years and no evidence has been submitted by the Respondent as to any possible preparation to use of it in connection with its alleged production of Chocopie in the United States notwithstanding the specific request in the Panel Order No.1, this Panel finds that it is thus highly likely that the Respondent registered the disputed domain name with the intent to derive profit from the sale of it, as detailed in the paragraphs above.
In view of the above, the Panel finds, on balance, that the disputed domain name was registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <chocopie.com> be transferred to the Complainant.
James W. Dabney
Date: February 7, 2013