Proceedings Boomerang. . .

Both Complainant and Respondent are involved in the production and/or marketing of vodka.  On November 10, 2005, Complainant filed its earliest application for trademark registration of the word "Boomerang".  The disputed domain name, "boomerangvodka.com", was registered by Respondent on October 7, 2005 and resolves to a website hosted by the registrar and mainly featuring links to what purport to be sites associated with vodka.

Although the registration of the disputed domain name pre-dates Complainant's earliest application for trademark registration of "Boomerang", Complainant contended that it had started trading earlier than that in 2005 and acquired common law rights.  Fatal to its claim, Complainant failed to submit any evidence as to the alleged nature and extent of the Complainant's purported trade and the Panel was unable to make any finding of common law rights.  Notwithstanding, Complainant overcame the first element of the Policy and established a trademark in which it had rights and which were identical to the disputed domain name, by virtue of its Australian registration of the mark "Boomerang" which came through on June 26, 2006.

Despite this, the Complaint was denied as Complainant failed to satisfy the Panel that the disputed domain name was registered and was being used in bad faith.  In so finding, the Panel pointed to Complainant's failure to produce any evidence of its allegations that it had established common law rights pre-dating the domain name registration or that Respondent had learned of Complainant's trademark through a distiller with whom both parties had dealings and that Respondent, a competitor, registered the domain with the intention of blocking the Complainant and disrupting Complainant's business.  In sharp contract, Respondent went to some lengths to respond to the Complaint and filed an affidavit in which its managing member deposed as to why he selected the domain name ('"Boomerang" is an ordinary word apt to indicate Australia as the geographic source of Respondent's vodka') and expressly denied Complainant's allegations.