A good illustration of the need to show bad faith at the time of registration and how an otherwise apparently strong case can fail if this is not proved is:
China Care Foundation, Inc. v. Choi Yun Gul (Nov 10, 2010) WIPO Case No. D2010-1208.
The disputed domain name was <chinacare.com>. The Complainant, a US company had a US trademark in CHINA CARE.
The sole contested issue in this case was whether the Respondent had registered the domain name in bad faith, when the trademark relied on was registered on February 13, 2007 and the domain name was registered on September 4, 2001.
The Complainant had an uphill battle showing that the Respondent knew of the trademark at the time of registration of the domain name or had any form of bad faith intention at that time.In fact its materials occurred in 2004, ie after the registration of the domain name. Moreover there was almost no evidence that the Complainant had used the mark in 2000 or 2001, In fact, as the panellist put it, the case was not made out that:
“…the Respondent 1) knew or should have known, or even could have known about the Complainant’s mark; 2) intended to capitalize on the Complainant’s mark; and 3) did not merely register the Disputed Domain Name because of some genuinely generic or descriptive meaning or purpose wholly unconnected with the Complainant or its competitors at the time of registration. In fact, there is not even evidence to show that the Respondent was, at the very least, aware of the Complainant’s existence, or of its competitors, and of the likelihood that the Complainant would soon obtain the relevant trademark rights.”
The Complaint was therefore dismissed. Again, this case shows not only that evidence must be produced to validate all issues, but that in particular the evidence must prove that the Respondent registered the domain name in bad faith, as well as used it in bad faith.