WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
magicJack LP v. Domains By Proxy, LLC / JP Schulz
Case No. D2013-0334
1. The Parties
The Complainant is magicJack LP of West Palm Beach, Florida, United States of America, represented by Arnold & Porter, United States of America.
The Respondent is Domains By Proxy, LLC / JP Schulz of Scottsdale, Arizona, United States of America, and Heidelberg, Germany, respectively, represented by Grossman, Tucker, Perreault & Pfleger PLLC, United States of America.
2. The Domain Name and Registrar
The disputed domain name <magicjacksupport.com> is registered with GoDaddy.com, LLC. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 19, 2013. On February 20, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 20, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 21, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 25, 2013.
The Respondent sent an email communication to the Center on February 21, 2013.
The Center verified that the Complaint together with the amended 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 on February 26, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 18, 2013. The Response was filed with the Center on March 15, 2013.
The Complainant submitted a supplemental filing to the Center on March 19, 2013. The Respondent submitted a supplemental filing to the Center on March 20, 2013.
The Center appointed James A. Barker as the sole panelist in this matter on April 4, 2013. The Panel finds that it was properly constituted. 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.
4. Factual Background
The Complainant markets a telephone service, which operates through a USB device which it has developed, known as a “magicJack”.
The Complainant is the trade mark registrant for United States Patent and Trademark Office Registration (USPTO) No. 3446818 dated June 10, 2008 (filed April 14, 2006) MAGICJACK (word) in class 9 for telecommunications equipment and Registration No. 3618510 dated May 12, 2009 (filed May 8, 2008) MAGICJACK (word) in classes 9 and 38 for VOIP related software. First use in commerce was claimed from May 31, 2007 in respect of both registrations.
The Complainant operates a website at “www.magicjack.com”. On that website, the Complainant provides information about its “magicJack” product and online customer support.
The disputed domain name was registered on July 23, 2008.
The Complainant provides screenshots (as at February 6, 2013) of the Respondent’s website at the disputed domain name. The website includes the banner “magicJack and MagicJack Plus Support, Reviews, FAQs and Hacks” and the subbanner, “magicJack and MagicJack Plus Unofficial Technical Support. Your Magic Jack and Magic Jack Plus phone service information resource”. In the middle of the page is an apparent advertisement (located in approximately the same place on each page, but which has different content in different screenshots) followed by a list of “Public magicJack FAQs (Read this First)”. The banner advertisement, in various screenshots, seems randomly generated. The Respondent also provides screenshots of its website as at March 14, 2013 which are substantially similar to those provided by the Complainant. There is no dispute that the Respondent’s website has offered substantially similar services since it was established in 2008. While neither party provided substantial past evidence on this point, the Panel visited the “waybackmachine” website, which indicated that the Respondent’s website has been in continuous operation (with largely the same look and feel) since 2008.
5. Parties’ Contentions
The Complainant makes the three allegations under paragraph 4(a) of the Policy.
Firstly, the Complainant contends that the disputed domain name is confusingly similar to its MAGICJACK trade mark in which it claims registered rights. This creates a likelihood of initial interest confusion with the disputed domain name. The Complainant says it has made a substantial investment in developing its technology over the past several years, and spent a substantial amount on advertising its products and services. The Complainant provides evidence of media articles referring to its products. The Complainant says that the disclaimer on the Respondent’s website does not dispel confusion because that disclaimer is both inconspicuous and ambiguous.
Secondly, the Complainant says that the Respondent has no rights or legitimate interests in respect of the disputed domain name. According to information in the Complaint, the website at the disputed domain name displays a heading “magicJack and MagicJack Plus Support, Reviews, FAQs and Hacks”. Further, the website provides a forum where Internet users and owners of the Complainant’s products can ask questions, seek information on “Features coming to Magic Jack”, and access “Magic Jack Technical Support”. The Complainant also provides evidence that this website displays pay-per-click advertisements, including for the Complainant’s competitors. The Complainant says that the Respondent has registered the disputed domain name to draw Internet users to its website by capitalizing on the association with the Complainant’s mark. The Respondent is not making any of the legitimate uses of the disputed domain name illustrated in paragraph 4(c) of the Policy.
Thirdly, the Complainant contends that the disputed domain name was registered and is being used in bad faith, as described in paragraph 4(b)(iv) of the Policy. The Complainant says that the Respondent was well-aware of the Complainant’s trademark rights – the disclaimer on the Respondent’s website is evidence of this. The Complainant’s mark is well-known. The Respondent has attempted to conceal its identity to avoid these proceedings. The disputed domain name is obviously indicative of the Complainant’s products such that the Respondent’s user would inevitably be lead to confusion. The Respondent’s website includes ‘pay-per-click’ advertisements which, the Complainant says on information and belief, the Respondent is paid for.
The Complainant says that it only discovered the disputed domain name in December 2012. The Complainant’s counsel sent a “cease and desist” letter to the Respondent on January 3, 2013 (identified as 2011 in the Complaint, which the Panel has taken to be a typographical error). The WhoIs database indicates that the registrant information was changed on January 13, 2013 to reflect “Domains By Proxy” as the Registrant.
The Respondent claims that shortly after the Complainant launched its products and services, the Complainant shut down its official technical online forum. The Respondent claims to have wanted to fill this void, to provide an unofficial support forum in 2007. The Respondent says that it has invested substantial time and resources for this purpose. Within the first year of the operation of this website, the Respondent says that it became so popular that it had to change domain hosting providers to handle the high volume of Internet traffic. Accordingly, the Respondent registered the disputed domain name in 2008. The then-CEO of the Complainant joined that forum in 2008, and other employees of the Complainant joined that forum after the Respondent’s registration of the disputed domain name. The Respondent says that its website has now garnerned over 38,000 users.
The Respondent acknowledges receiving the “cease and desist” letter from the Complainant. The Respondent says that in the weeks before and after the receipt of that letter, it received offers to purchase the disputed domain name “on behalf of an undisclosed principal, likely the Complainant”. The Respondent declined to entertain these offers and elected to use a privacy service to prevent any further unwanted contact. The Respondent replied to the Complainant’s “cease and desist” letter on January 15, 2013 stating that it provided legitimate technology support and that it was not its intention to create confusion.
The Respondent says that the Complainant is barred under a Laches defense due to years of conscious and deliberate inaction in making a Complaint.
While the Response itself does not address the issue of whether the disputed domain name is confusingly similar to the Complainant’s mark, an attachment to the Response (a letter dated January 15, 2013 sent to the Complainant by the Respondent’s counsel) states that there is no confusing similarity that amounts to trademark infringement. This, it is stated, is because the website is conspicuously identified as an “unofficial” site.
The Respondent says that it has a right and legitimate interest in the disputed domain name because it is using it in connection with a bona fide offering of services. The Respondent suggests that it is making a “nominative fair use”; it is using the disputed domain name to communicate the nature of its services. In this respect, the Respondent says that it genuinely offers technology support in connection with the Complainant’s products and does not operate a “bait and switch” scheme. The Respondent denies that the disclaimer on its website is ambiguous. The Respondent refers particularly to the test in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903, for where legitimate interests may be identified in a distributorship arrangement.
In relation to bad faith, the Respondent concedes that it knew of the Complainant’s mark. However the Respondent says this is irrelevant because it is making a nominative fair use of the disputed domain name.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
In considering these elements, paragraph 15(a) of the Rules provides that the Panel shall decide the Complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable. These elements are discussed in turn below, immediately after consideration of two procedural issues regarding the filing of supplemental submissions by the parties, and the laches (or delay) defense raised by the Respondent.
A. Supplementary filings
Both parties made unsolicited further filings in this case. The Panel has decided to admit them.
The Complainant’s supplemental filing refutes the Respondent’s statement that the Complainant’s former CEO, along with some of the Complainant’s employees, used the Respondent’s website. The Complainant provides a declaration of that former CEO who denies sending the emails attributed to him by the Respondent and attached to the Response, and denies having ever created a profile on the Respondent’s website. The Complainant states that the Respondent’s evidence is inaccurate or fabricated. The Complainant also denies the allegations that the Complainant asked a person named in the Response to make an offer for the disputed domain name. The Complainant also seeks to reargue matters raised in the Complaint, including that the Respondent’s website is not exclusively associated with the Complainant’s products.
The Respondent’s supplemental filing denies that it fabricated evidence relating to the Complainant’s former CEO and employees of the Complainant. The Respondent provides additional information from a person who it says admits to being an employee of the Complainant. This supplemental filing otherwise denies the further allegations made in the Complainant’s supplemental filing. In relation to a “sub-forum” available on the Respondent’s website relating to alternative products to those of the Complainant’s, the Respondent says that this forum is not intended to lure users to alternative products and comprises only 3% of forum posts and is, as such, de minimus.
Neither the Policy nor the Rules explicitly provide for supplemental filings to be made by either party. A panel has the discretion to admit or invite further filings under paragraphs 10(a), (b), (d), and 12 of the Rules. Previous panels have considered that such submissions should only be admitted in exceptional circumstances, such as where the party could not reasonably have known the existence or relevance of the further material when it made its primary submission; that if further material is admitted, it should be limited so as to minimize prejudice to the other party or the procedure; and that the reasons why the panel is invited to consider the further material should, so far as practicable, be set out separately from the material itself. See Mejeriforeningen Danish Dairy Board v. Cykon Technology Limited, WIPO Case No. D2010-0776.
Generally following this approach, this Panel has decided to admit both parties’ supplemental filings. In this case, the legitimacy of the Respondent’s business is at issue. The Complainant could not reasonably have anticipated material which it considered had no evidential basis. The Complainant’s further submission is limited. The Respondent has replied and, as such, has not been denied the opportunity to respond.
For convenience, references to “the Complaint” and “the Response” below are inclusive of the parties’ supplemental submissions.
As noted above, the Respondent claims that the Complaint is barred because the Complainant delayed bringing these proceedings. The Respondent suggests that the reasons for this is that the Complainant had new management from December 2012, which took a different view of the Respondent’s conduct.
As noted above, the disputed domain name was first registered in 2008. This means that the disputed domain name was registered more than 5 years before the Complainant filed the Complaint. The Complainant provides no explanation as to why it took so long to file the Complaint.
However, as this Panel has discussed in other cases, a delay in bringing a complaint does not provide a defense per se under the Policy: Chocolaterie Guylian, Naamloze Vennootschap (N.V.) v. Zeugma, WIPO Case No. D2010-2256. While a complainant’s delay may make it more difficult to prove its case, particularly under paragraphs 4(a)(ii) and (iii) of the Policy, delay itself is not a matter that relates directly to any of the issues which a complainant must prove under paragraph 4(a) of the Policy. In these circumstances, the Panel has not drawn adverse implications against the Complainant on this issue alone.
The non-applicability of the defense of laches (i.e. undue delay) in UDRP proceedings has long been recognized by UDRP panels, over many years and is supported by a large body of jurisprudence. A finding of its applicability would be against that large body of jurisprudence. See e.g., in addition to this Panel’s earlier-mentioned decision in Chocolaterie Guylian, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.10, and cases cited therein. While this Panel is aware that a small number of UDRP panelists have, on occasion, sought to put this question at issue (see e.g. Laminex, Inc. v. Yan Smith, NAF Claim No. FA1470990), this Panel sees no compelling reason to disrupt or depart from years of well-settled UDRP jurisprudence on this point.
This does not mean that a delay may not be relevant in this proceeding, to the extent that it may relate particularly to the matters the Complainant must provide under paragraph 4(a)(ii) or (iii) of the Policy. To the extent the issue of delay is relevant in these respects, the Panel has addressed it below.
C. Identical or Confusingly Similar
The first issue under paragraph 4(a)(i) of the Policy is whether the Complainant has rights in a mark and, if so, whether the disputed domain name is identical or confusingly similar to that mark.
The Complainant provided evidence of its registered rights and, as such, the Panel finds that the Complainant has established those rights. Those rights have been recognized in previous decisions under the Policy. See magicJack LP v. Nhan Bui, WIPO Case No. D2009-1053.
The Panel also finds that the disputed domain name is confusingly similar to the Complainant’s mark.
The Complainant’s registered mark is entirely and prominently incorporated in the disputed domain name. Prior panels have found that the incorporation of a complainant’s trademark in a disputed domain name can be sufficient for a finding of confusing similarity. See e.g. Nokia Group v. Mr. Giannattasio Mario, WIPO Case No. D2002-0782. Added to this, the Complainant’s mark is the first-appearing element in the disputed domain name. The addition of the descriptive word “support” does little to distinguish the Complainant’s mark. As such, the Panel considers that Internet users would be confused by the association between the disputed domain name and the Complainant’s mark.
For these reasons, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark.
D. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to establish that the Respondent has no rights or legitimate interests in the disputed domain name. Once a Complainant establishes a prima facie case against the Respondent under this ground, the burden shifts to the Respondent to rebut it. The overall burden of proof remains with Complainant. See e.g. Document Technologies, Inc. v. International Electronic Communications, Inc., WIPO Case No. D2000-0270.
The Complainant has established a strong prima facie case. The Respondent has also put forward a substantial Response. The competing evidence relates to the issue of whether the Respondent can have rights or legitimate interests, based on a bona fide offering of services which uses the Complainant’s mark as a descriptor of those services.
There was no dispute in this case that the Respondent is actually offering the services it describes and has done so since 2008. Rather, the dispute centers on whether the Respondent’s offering is bona fide. The Respondent says it is, based on its use of the disputed domain name in connection with a users’ forum relating to the Complainant’s product. The Complainant says that it is not, based on the allegation that the Respondent is using the website to advertise products of the Complainant’s competitors, and because the Respondent does not include an adequate disclaimer on its website. The Complainant also refers to the Respondent’s lack of trademark registrations, the absence of permission from the Complainant, and that the Respondent is not known by the disputed domain name. The Complainant says that the Respondent is seeking to capitalize on the reputation of the Complainant’s mark.
The Panel can accept that the Respondent has no relevant trademark registrations, no explicit permission from the Complainant to use its mark, and is not commonly known by the disputed domain name. The Respondent did not seek to assert otherwise. These facts however do not, in themselves, prove that the Respondent has no rights or legitimate interests.
Other grounds in the Complaint relate to the well-established test under the Policy of whether a use is bona fide, in circumstances where a respondent is a “re-seller” of a complainant’s goods. The test of whether such a use is bona fide was set out in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903. Relevant to the claims made in the Complaint, the tests in Oki Data make it clear that a use is bona fide if the facts suggest the following:
1. A respondent must actually be offering the goods or services at issue;
2. A respondent does not corner the market in all domain names or deprives the trademark owner of reflecting its own mark in a domain name.
3. A respondent must take steps to prevent confusion by making clear in its use of the domain name that it is not the trademark owner, even if it offers legitimate goods, by accurately disclosing the registrant’s relationship with the trademark owner; i.e. it may not, for example, falsely suggest that it is the trademark owner, or that the website is the official site, or that it is an authorized or exclusive agent.
4. A respondent must use the website to sell only the trademarked goods; otherwise, it could be using the trademark to bait internet users and then switch them to other goods;
These tests are cumulative. That is, a respondent must demonstrate all of them to demonstrate a right or legitimate interest. There is no dispute that the Respondent in this case is actually operating the “chat” website it claims to support. Neither is there an allegation or evidence that the Respondent has sought to “corner the market” in relevant domain names or prevent the Complainant, as the trademark owner, from reflecting its own mark in a domain name. However, the Complainant claims, in effect, that the Respondent fails the third and fourth tests outlined above.
In relation to the third test (the issue of a disclaimer), the Complainant says that the disclaimer on the Respondent’s website is ambiguous, and so not sufficient to avoid a finding against the Respondent. However, the Panel considers that it is clear that the Respondent’s website is not affiliated with the Complainant. As noted in the Response, the Respondent’s site is clearly stated to be an “unofficial” website. What else can this represent but a disassociation from the Complainant? There is otherwise little in the Respondent’s website which might confusingly suggest that it is associated with the Complainant.
In relation to the fourth test, the Complainant says that the Respondent is using the website to advertise products of the Complainant’s competitors. The Respondent argued that this aspect of its website is not substantial, particularly having regard to the overall focus of the website relating to the Complainant’s products. However, the Panel notes that the evidence of the Respondent’s website in the Complainant (screenshots of the Respondent’s website) variously indicates prominent advertisements which apparently relate to products that may compete with the Complainant’s. These include prominent advertisements for “Internet Phone System”, “Best VOIP Provider”, “Network fax server software”, as well as other products such as “Shop apparel” and advertisements for discount airfares.
While it is uncontested that the Respondent is not a “re-seller” of the Complainant’s products, the Respondent’s website relates to the provision of advice to support those products. The Respondent’s website does not appear to seek a commercial advantage for specifically offering those services, but still finds a commercial advantage (through advertising) associated with that service. The fact that the advertising might, as argued by the Respondent, be “randomly generated based on Google algorithms” does not release the Respondent from responsibility. Ultimately, the Respondent is in control of its own website, either directly or by allowing such advertising to be presented.
This leads to what the Panel thinks is the central issue: What is the purpose of the Respondent’s website? The Respondent says that it is to provide a technical support forum. This apparently is what the website does. But the Panel is not convinced that the Respondent was motivated by altruism to set up such a website. The Respondent similarly does not claim that it was so motivated. Rather, the circumstances of this case suggest that the Respondent obtains revenue from the advertising on its website. The Respondent provided no evidence of obtaining a commercial advantage in any other way. The Respondent appears to have a commercial interest in generating traffic to its website. It seems reasonable to infer that traffic to the Respondent’s website will be attracted by the reputation of the Complainant’s mark, as incorporated in the disputed domain name. The corollary is that the Respondent was motivated to register the disputed domain name because of its trademark value. The advertising on the Respondent’s website appears to be a significant commercial feature, notwithstanding that, for users, the website may have another function. Such significant commercial features cannot simply be set aside in assessing any rights or legitimate interests.
There is, however, an additional complication. This is the directly conflicting evidence of whether the Complainant’s former CEO and past employees were aware of and have used the Respondent’s website. On of the basis of this past use, the Respondent claims to be making a bona fide use of the disputed domain name. The Respondent does not draw a clear conclusion or implication from this evidence. The Panel has inferred that the Respondent makes this argument to suggest that the Complainant was aware of, and implicitly authorized (or at least did not object to) the Respondent’s registration and use of the disputed domain name. Had there been such an authorization, the Respondent might establish a right or legitimate interest, despite its failure to meet the Oki Data tests outlined above
The Panel admits to finding this conflicting evidence issue difficult to resolve. The Respondent provides apparently various evidence of email correspondence from people purporting to be employees of the Complainant, including its former CEO. In some cases, this evidence includes messages from the Complainant which were posted to the Respondent’s website by third parties. However, the Respondent also provides evidence that people identifying themselves as employees of the Complainant sent messages in 2008 and 2009 directly through the Respondent’s forum. The Complainant denies the truth of the Respondent’s evidence in its supplemental submission. The Complainant says that the Respondent has failed to check the facts, or has fabricated them, and provides a declaration of its former CEO in support (although not of the previous employees identified in the Response, or a denial that people by those names were in fact its employees).
It is fundamental that proceedings under the Policy are intended to provide an expeditious process to resolve claims of cybersquatting. Proceedings of this kind are limited in the ability of a panel to test evidence and seek further information. Within the limitations of these proceedings, it is not possible for this Panel to conclusively decide which version of the events is true. As relevantly noted by the panel in Randan Corp. v. Rapazzini Winery, WIPO Case No. D2003-0353: “Dueling declarations of this type pose a unique problem in proceedings under the Policy given the lack of discovery, cross-examination and live testimony at which credibility determinations can be made…The Panel must nevertheless do the best it can to resolve the disputed facts on the paper record…If, because of these inherent limitations, the Panel gets it wrong, the parties still are free to pursue their dispute in court, where all of the procedural protections missing from the proceedings under the Policy are available.”
On balance, the Panel considers that, even if the Respondent’s evidence is true, it is equivocal as to whether the Complainant implicitly authorized the Respondent to register a domain name which incorporated its mark. At best, the evidence indicates that some employees of the Complainant posted short technical responses to questions posted for users of the Respondent’s forum. This evidence, while not helping the Complainant’s case, does not strongly suggest that the Complainant consented to the Respondent’s registration and use of its mark in the disputed domain name. Further, by not obtaining a clear consent, the Respondent must or should have been aware that its registration of the disputed domain name was at risk of being challenged by the Complainant.
For these reasons, the Panel considers that this evidence does not displace the finding that the Respondent lacks rights and legitimate interests, for the reasons outlined above.
E. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy next requires the Complainant to prove that the Respondent has registered and used the disputed domain name in bad faith. Paragraph 4(b) of the Policy sets out a number of illustrative circumstances which may be evidence of bad faith for the purpose of paragraph 4(a)(iii). These include:
“(i) circumstances indicating that you have registered or you have acquired the disputed domain name primarily for the purposes of selling, renting or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly to the disputed domain name; or
(ii) you have registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding disputed domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
It is apparent that the Complainant relies on paragraphs 4(a)(b)(iv). For similar reasons to those set out above in relation to paragraph 4(a)(ii) of the Policy (rights and legitimate interests), the Panel finds that the Respondent has registered and used the disputed domain name in bad faith. (See, e.g., Barnes and Noble College Bookstores, Inc. v. Leasure Interactive, WIPO Case No. D2001-1216, where the panel found that that lack of rights or legitimate interest may, in appropriate cases, be relevant in determining bad faith.)
The Panel also finds that the use of a privacy service in this case further supports its finding of bad faith registration. Although a use of a privacy service is not, in itself, indicative of bad faith, the timing of the use of the privacy service by the Respondent came shortly after being contacted by the Complainant in early January 2013 concerning this dispute. This timing is suggestive that the Respondent’s use of the privacy service was designed to frustrate the process against it.
These findings do not, however, mean that the evidence is all one-way. The Complainant provided little explanation as to why it took so long to file a complaint. It may be that the Complainant was not, as it claims, aware of the disputed domain name until late 2012. However, the Complaint does not clearly explain how it was that the Complainant would have been unaware of a substantial “chat” site relating to its products.
However, on the balance of all the evidence, the Panel finds that the disputed domain name was registered and 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 <magicjacksupport.com> be transferred to the Complainant.
James A. Barker
Date: April 18, 2013