Complainant is Mattel, Inc., El Segundo, CA, USA ("Complainant") represented by William Dunnegan, of Perkins & Dunnegan. Respondent is Organization, Hollywood, CA, USA ("Respondent").

The domain name at issue is <magiceightball.com> registered with Tucows, Inc.

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 12, 2001; the Forum received a hard copy of the Complaint on June 15, 2001.

On June 19, 2001, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <magiceightball.com> is registered with Tucows, Inc. and that Respondent is the current registrant of the name. Tucows, Inc. has verified that Respondent is bound by the Tucows, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On June 19, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 9, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@magiceightball.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On July 16, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

Complainant requests that the domain name be transferred from Respondent to Complainant.

A. Complainant asserts that the <magiceightball.com> domain name is confusingly similar to Complainant’s federally registered MAGIC 8 BALL mark, that Respondent has no rights or legitimate interests with respect to the <magiceightball.com> domain name and that Respondent registered and used the <magiceightball.com> domain name in bad faith.

B. Respondent did not file a response in this proceeding.

Since 1963, Complainant has used its MAGIC 8 BALL mark in connection with its famous novelty item. Complainant registered its MAGIC 8 BALL mark on the Principal Register of the United States Patent and Trademark Office as Registration No. 743,727 on January 15, 1963. Complainant has been in continuous use of its famous MAGIC 8 BALL mark since its registration. Complainant renewed its trademark application on January 15, 1983.

Respondent registered the <magiceightball.com> domain name on December 17, 1999 and has used the disputed domain name to link to a website offering various products for sale on the Internet.

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical to or confusingly similar to a trademark or service mark in which Complainant has rights;

(2) Respondent has no rights to or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Complainant has established that it has rights in the MAGIC 8 BALL mark. Respondent registered a domain name, <magiceightball.com>, that has the same phonetic sound as Complainant’s MAGIC 8 BALL mark. When spoken, there is no distinction between Complainant’s mark and the disputed domain name. Respondent’s registration of a domain name that is phonetically indistinguishable from Complainant’s mark, makes the disputed domain name confusingly similar to Complainant’s MAGIC 8 BALL mark. See YAHOO! Inc. v. Murray, D2000-1013 (WIPO Nov. 17, 2000) (finding that the domain name <yawho.com> is confusingly similar to the Complainant’s YAHOO mark).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied; Complainant has established that the Respondent registered a domain name that is confusingly similar to Complainant’s mark.

Complainant has established in this proceeding that it has rights to and legitimate interests in the MAGIC 8 BALL mark. Respondent did not come forward to demonstrate that it has rights or legitimate interests in MAGIC 8 BALL mark that is contained in its entirety in the <magiceightball.com> domain name. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("[i]n the absence of a response, it is appropriate to accept as true all allegations of the Complaint"). Furthermore, under the Rules, the Panel will presume that Respondent has no rights or legitimate interests with respect to a disputed domain name where Respondent fails to submit a response. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

The only use that Respondent has made of this domain name is to link the <magiseightball.com> domain name to another website, assumedly for commercial gain. This is not a bona fide offering of goods or services such as would tend to show rights in the Respondent. See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).

No evidence in the record suggests that Respondent is commonly known by the mark contained in its entirety within the domain name in issue and Respondent has not come forward to establish that it is commonly known by the <magiseightball.com> mark and domain name. Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Respondent’s legitimate interest must exist prior to the registration of the domain name and not after continued use).

Furthermore, no evidence demonstrates that Respondent is making a legitimate noncommercial, or fair use of the <magiceightball.com> domain name pursuant to Policy ¶ 4(c)(iii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding that use of the domain name to direct users to other, unconnected websites does not constitute a legitimate interest in the domain name).

The Panel finds that Complainant has rights to and interests in the mark contained in its entirety within the disputed domain name and that Respondent has no such rights to or legitimate interests in the mark and domain name. Policy ¶ 4(a)(ii) has been satisfied.

Respondent registered and used the disputed domain name to attract, for commercial gain, Internet users to Respondent’s website. The facts permit the inference that Respondent created a likelihood of confusion with Complainant’s MAGIC 8 BALL mark. This is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the Respondent linked the domain name to a website that offers a number of web services); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where Respondent registered the domain name <bigtex.net> to infringe on Complainant’s good will and attract Internet users to Respondent’s website).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied; Respondent registered and used the domain name in issue in bad faith.

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted. Accordingly, it is Ordered that the <magiceightball.com> domain name be transferred from Respondent to Complainant.

Hon. Carolyn Marks Johnson, Panelist

Dated: July 30, 2001