Wafu Inc. of Montreal, Quebec, Canada, was just awarded the rights to the domain name WAFU.com a domain that was registered on March 8, 2000.

The Complainant owns some trademarks in Cananda the one’s cited by the panel are dated June 23, 2008 another dated November 17, 2003.

However  “The Complainant contends that the registration date of the disputed domain name is March 8^, 2000, nearly one year after the use of the Complainant’s mark; the Respondent therefore, does not have any rights or legitimate interests with respect to the disputed domain name. ”

So although the trademarks by the panel own citations were not registered until 2003 and 2008 they seemed to accept the Complainant Assertions that it begain using the trademarks in 1998.

The domain holder did not respond and that fact coupled with the domain name not resolving doomed the UDRP.

“The Complainant also avers that the website located at the address associated with the disputed domain name does not appear to be active, thus, the Respondent has no rights or legitimate interests to keep the registration of the disputed domain name. The Complainant consequently submits that to the best of its knowledge, the Respondent is not commonly known by the disputed domain name and makes no legitimate commercial use of the said website.”

“The Panel finds that on the record, it has been established that the Respondent has not been commonly known by the disputed domain name, and thus the Panel does not recognize that the Respondent has rights or legitimate interests in the disputed domain name. ”

“Under the circumstance that the Respondent did not reply, the Panel finds that the Complainant has proven a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. See De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002-0005; see also Accor v. Eren Atesmen, WIPO Case No. D2009-0701.

Given the above circumstances, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name, and the second element of the Policy has been established.

“The Panel reviews as to whether the Complainant has proved the additional requirement that the disputed domain name “is being used in bad faith” by the Respondent. The Complainant asserts that after numerous attempts by the Complainant to communicate with the Respondent, the Complainant never received any reply with regards to the justification of the registration of the disputed domain name. ”

“The Panel notes that the Complainant offered the Respondent many opportunities to justify the presumed existence of a right or a legitimate interest in the disputed domain name, but the Respondent never answered.”

“The Complainant further submits that the Respondent’s failure to make a bona fide use of the disputed domain name for an extensive amount of time constitutes bad faith.

The Panel notes that the website resolved from the disputed domain name is clearly not in use by the Respondent or by anyone else.

There is no evidence that a website or other on-line presence is in the process of being established which will use the disputed domain name.

There is no evidence of advertising, promotion or display to the public of the disputed domain name. There is no positive action being undertaken by the Respondent in relation to the disputed domain name.”

“Nevertheless, previous UDRP decisions have recognized that inaction (e.g., passive holding) in relation to a domain name registration can, in certain circumstances, constitute a domain name being used in bad faith. Furthermore, it must be recalled that the circumstances identified in the Policy, paragraph 4(b) are “without limitation” – that is, the Policy, paragraph 4(b) expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

The Panel considers particular circumstances of the present case as below:

(i) the Complainant’s mark has a reputation and goodwill in association with the Complainant’s mark through its use in association with its business, as evidenced by its substantial use in Canada and in other countries,

(ii) the use of the Complainant’s mark predates the registration of the disputed domain name,

(iii) the Complainant’s main goods on which its mark is being used are Japanese Vinaigrettes while the Respondent is a Japanese,

(iv) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use of the disputed domain name, and

(v) the Respondent chose to ignore the Complainant’s numerous attempts to communicate with the Respondent for more than two years.

In light of these particular circumstances, the Panel concludes that the Respondent’s passive holding of the disputed domain name satisfies the requirement of the Policy, paragraph 4(a)(iii) that the disputed domain name “is being used in bad faith” by the Respondent.

As such, the Panel concludes that the disputed domain name was registered and is being used in bad faith.”