The plot thickened, however, when it became clear that the initial Respondent registered the disputed domain
Faced with these facts, the Panel had to acknowledge that "[s]ometimes in similar circumstances, it is difficult to prove bad faith, as the Respondent cannot be expected to have known of the Complainant or the Complainant’s trademark rights." With that said, the Panel made the best with what it had, namely, the fact that the Complainant registered its futuerebazaar.com domain name
It is clear that the Panel did not have satisfactory evidence of the Complainant's common law rights in its mark (as opposed to its domain name) prior to the Respondent's registration of the disputed domain. The Panel had plenty of other evidence of bad faith conduct, however, and the absence of a response emphasizing the timing issue really did in Respondents here. In circumstances such as these where there is ample evidence of bad faith use, but not bad faith registration, it may be more desirable to file an ACPA claim in a U.S. District Court. While a UDRP complaint requires both bad faith registration and use, the ACPA merely requires bad faith use, registration, or trafficking in a domain.