Bra company fails in domain dispute.
A & H Sportswear Co., Inc., which holds two trademarks for “Magic Bra”, has lost a UDRP case for the domain name MagicBra.com.
The domain name was registered by Hu Yanlin of Beijing in 2001 and he says was never aware of A & H Sportswear’s marks. He also said the term was descriptive in nature:
The Respondent submits that the term “magic bra†is a descriptive term which not only refers to a brassiere which will make breasts look bigger but also refers to different methods of breast enlargement such as by nutritional, sports or medial operative means and the Complainant cannot claim exclusive rights over general and descriptive words which are used in accordance with their natural meaning.
The WIPO panelist found that the domain name was confusingly similar to A & H Sportswear’s marks. But he also found that the complainant had not shown that Yanlin didn’t have rights or legitimate interests in the domain:
The Complainant asserts that its MAGIC BRA mark is well-known and that it owns exclusive rights in relation to the mark and that people would associate the mark with products produced by the Complainant and that it has not authorised the Respondent to use its mark and essentially that the Respondent is using its mark to attract traffic to its website. However, none of these bald assertions are supported by any evidence or even by circumstantial evidence which would allow the Panel to draw appropriate inferences.
If it makes A & H feel better, it’s not missing out on a lot of traffic from the domain. Yanlin claimed the domain was only getting 2 visits per day.
John Berryhill says
The complainant’s attorney should have mentioned this came up in the fight between A&H and Victoria’s Secret over “Miracle Bra”:
http://cases.justia.com/us-court-of-appeals/F3/166/191/629861/
A & H contends that the relationship between the products is further evidenced by VS’s opposition to A & H’s proposed registration of THE MAGIC BRA, a new product by A & H developed after the commencement of this lawsuit. A & H argues that because VS allegedly contends in the PTO opposition that the MAGIC BRA for swimsuits is confusingly similar to THE MIRACLE BRA for lingerie (a position it contends is contradictory to VS’s arguments here), the District Court should have considered evidence of that PTO proceeding. Inasmuch as the facts sought to be introduced were post-trial, and the MAGIC BRA mark is different than the marks at issue here, the District Court did not abuse its discretion in refusing to consider that evidence.
chandan says
may be they should wear their magic bra and file udrp 😀 to do magic