The Complainant’s only argument in support of its assertion of bad faith is that Respondent sold the domain name for an amount higher than the registration costs, that he raised the price, and that he sells other domain names. Those facts describe a domain name speculator. Domain name speculation alone is not bad faith. Rather, to constitute bad faith, the speculation must be targeted at the trademark value of a name – in other words, Complainant must show that the Respondent is trying to profit from the value of the trademark in the sale of the domain name rather than from the descriptive value of the domain name.
Respondent has come forward with evidence that it sells other, similar domain names in the same price range, and that a third party has also sold a similar domain name in the same price range. This evidence establishes that the price sought here is not unreasonably inflated because of the value of Complainant’s trademark. Complainant has not rebutted this evidence with any argument that the other, similar domain names being sold by Respondent, and the similar domain name sold by a third party, have been sold by third parties are unfairly priced based on the value of any corresponding trademarks.
Further, although Respondent has not established that it has rights in the <drmuscle.com> domain name, the Panel finds that the components of the domain name, “Dr.” and “Muscle”, are common terms. The Panel finds Respondent’s claim credible that he registered the domain name because of the descriptive nature of those terms rather than because Respondent was targeting Complainant and its trademark. Respondent, based in Nebraska, credibly asserts that he never heard of Complainant (based in Montreal) or its trademark, and that Complainant’s app is not well known. Complainant has failed to rebut these assertions with sufficient evidence of the fame or renown of its app in Nebraska or in the United States generally, nor has Complainant adduced any evidence that would support a finding that Respondent likely was aware of Complainant or its app or its DR. MUSCLE trademark at the time he registered the domain name.
One fact that does give the Panel some pause is that Respondent, as a domain name speculator, does have some obligation under Paragraph 2 of the Policy to ensure that his domain name does not infringe or violate a third party’s rights. Respondent submitted evidence purporting to prove what a Google search in December 2018 might have shown; as discussed above, Complainant persuasively refutes the accuracy of those searches. What Respondent does not say is that Respondent actually did such searches, or took any steps to meet his obligations under Paragraph 2.
In the end, it is Complainant’s burden to show that Respondent registered and used the domain name in bad faith; it is not Respondent’s burden to prove that he did not. Although the facts around Respondent’s due diligence at the time of registration are unclear, Complainant has not adduced facts that support a finding, by the preponderance of the evidence, that Respondent did register the domain name with any bad faith targeting of the Complainant.
In any event, Respondent has not used the domain name in bad faith. There are no pay-per-click links on the website to which the domain name resolves that infringe or otherwise seek to profit from the Complainant’s trademark rights, the Respondent has not specifically attempted to sell the domain name to the Complainant, and the Respondent’s general offer of sale does not appear to reflect any bad faith intention to profit from Complainant’s trademark.
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