1 Pro bono counsel appointed pursuant to an order of this Court issued on June 24, 2010. The Court expresses its appreciation of Mr. Rosen’s service as appointed counsel in this civil case. 1 10-292-cv (L) Webadviso v. Bank of America
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

## SUMMARY ORDER
Rulings by summary order do not have precedenti al effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1 .1. When citing a summa ry order in a document filed with this court, a party must cite eith er the Federal Appendix or an electronic database (with the notation “summary order”). A party ci ting a summary order must serve a copy of it on any party not represented by counsel. 1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthou se, 500 Pearl Street, in the City of New York, 3 on the 26 thday of October, two thousand eleven. 4 5 PRESENT: 6 7 J OSÉ A. C ABRANES , 8 J OSEPH M. M C L AUGHLIN , 9 D EBRA ANN LIVINGSTON , 10 Circuit Judges

. 11

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 12 J. TAIKWOK YUNG WEBADVISO , 13 14 Plaintiff-Appellant , 15 16 -v.- Nos. 10-292-cv (L) 17 10-1307-cv (Con) 18 B ANK OF AMERICA C ORP ., M ERRILL L YNCH , 19 20 Defendants-Appellees

. 21

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 22 23 FOR APPELLANT: D AVID N. R OSEN , David Rosen & 24 Associates, P.C., New Haven, CT. 1 25 26 FOR APPELLEE: C HARLES A. B URKE(Jacob S. 27 Wharton, on the brief ), Womble 28 Carlyle Sandridge & Rice, PLLC, 29 Winston-Salem, NC; (John 30 Maggio, on the brief ) Condon & 31 Forsyth LLP, New York, NY. 32 332 Appeal from a judgment of the United States District Court for the Southern District of New 1 York (Denny Chin, Judge ). 2
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4
DECREED that the judgment of the District Court be AFFIRMED

. 5
6 Plaintiff-appellant J. Taikwok Yung Webadvis o (“Yung” or “Webadviso”) appeals from a 7 judgment granting summary judgment to defend ants-appellees Bank of America Corp. and Merrill 8 Lynch on Yung’s petition for declaratory judgment and on the appellees’ counter-claims of trademark 9 infringement, 15 U.S.C. § 1114, unfair competition, id. § 1125(a), trademark dilution, id. § 1125(c), 10 cybersquatting, id. § 1125(d), and injury to business reputation, N.Y. Gen. Bus. Law § 360- l . We assume 11 the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. 12
13
DISCUSSION 14
A. Standard of Review 15 We review the District Court’s decision to grant summary judgment sua sponte to the defendants 16
de novo

. Schwan–Stabilo Cosmetics GmbH & Co. v. PacificLink Int’l Corp. , 401 F.3d 28, 31 (2d Cir. 2005). 17 Summary judgment is appropriate where the available facts show that “there is no genuine dispute as to 18 any material fact and [a party] is entitled to judgme nt as a matter of law.” Fed. R. Civ. P. 56(a); see also 19 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986); Gallo v. Prudential Residential Servs., LP , 22 F.3d 20 1219, 1223 (2d Cir. 1994). Courts have the discretion to grant summary judgment sua sponte, so long as 21 the court “‘determine[s] that the party against whomsummary judgment is rendered has had a full and 22 fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried. . . .’” 23
Schwan–Stabilo Cosmetics , 401 F.3d at 33 (quoting Ramsey v. Coughlin , 94 F.3d 71, 73-74 (2d Cir. 1996)); see 24 also Celotex Corp. v. Catrett , 477 U.S. 317, 326 (1986) (observing that “district courts are widely 25 acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party 26 was on notice that [it] had to come forward with all of [its] evidence.”). 273 Summary judgment was granted in this case following the District Court’s sua sponte order to 1 show cause. The record shows that the District Court, after entering the order to show cause, granted 2 plaintiff a full and fair opportunity to be heard. 3
B. The Anticybersquatting Consumer Protection Act 4 The Anticybersquatting Consumer Protection Act (“ ACPA”), 15 U.S.C. § 1125(d), was enacted 5 in 1999 to protect consumers and holders of dist inctive trademarks from “cybersquatting,” which 6 “involves the registration as domain names of we ll-known trademarks by non-trademark holders who 7 then try to sell the names back to the trademark owners. ” Sporty’s Farm L.L.C. v. Sportsman’s Mkt., Inc. , 8 202 F.3d 489, 493 (2d Cir. 2000). To successfully assert a claim under the ACPA, a plaintiff must 9 demonstrate that (1) its marks were distinctive at the time the domain name was registered; (2) the 10 infringing domain names complained of are identical to or confusingly similar to plaintiff’s mark; and (3) 11 the infringer has a bad faith intent to profit from that mark. See 15 U.S.C. § 1125(d)(1)(a). The first two 12 elements are not seriously disputed on appeal. 13 With respect to the “bad faith” element, the ACPA lists nine non-exclusive factors for courts to 14 consider in determining whether a domain name registrant has acted in bad faith: 15 [1] the trademark or other intellectual property rights of the [registrant], if any, in the 16 domain name; 17 [2] the extent to which the domain name cons ists of the legal name of the [registrant] 18 or a name that is otherwise commonly used to identify that [entity]; 19 [3] the [registrant’s] prior use, if any, of the domain name in connection with the 20 bona fide offering of any goods or services; 21 [4] the [registrant’s] bona fide noncommercial or fair use of the mark in a site 22 accessible under the domain name; 23 [5] the [registrant’s] intent to divert customers from the mark owner’s online location 24 to a site accessible under the domain name that could harm the goodwill represented by the 25 mark, either for commercial gain or with the intent to tarnish or disparage the mark, by 26 creating a likelihood of confusion as to the so urce, sponsorship, affiliation, or endorsement of 27 the site; 28 [6] the [registrant’s] offer to transfer, sell, or otherwise assign the domain name to the 29 mark owner or any third party for financial gain without having used, or having an intent to 30 use, the domain name in the bona fide offering of any goods or services, or the [registrant’s] 31 prior conduct indicating a pattern of such conduct; 32 [7] the [registrant’s] provision of material and misleading false contact information 33 when applying for the registration of the domain name, the [registrant’s] intentional failure to 34 maintain accurate contact information, or the [r egistrant’s] prior conduct indicating a pattern of 35 such conduct; 36 [8] the [registrant’s] registration or acquisition of multiple domain names which the 37 [registrant] knows are identical or confusingly similar to marks of others that are distinctive at 38 the time of registration of such domain names . . ., without regard to the goods and services of 39 the parties; and 402 The statute also sets forth a “bad-faith safe harbor” provision where the defendant “believed and had reasonable grounds to believe that the use of the domain name was a fair use or othe rwise lawful.” 15 U.S.C. § 1125(d)(1)(B)(ii); see Diarama Trading Co. v. J. Walter Thompson U.S.A., Inc. , No. 01 Civ. 2950, 2005 WL 2148925, at *13 (S.D.N.Y. Sept. 6, 2005). Appellant does not argue that he believed his use of the ML and BOFA trademarks was a fair use, or that he had any other lawful right to use the marks. Therefore we do not address whether he could have availed himself of the statutory safe harbor.

3 The evidence available to the District Court on summary judgment woul d have also supported a determination of bad faith on at least two other statutory bases. For example, reco rds filed by the appellees establish that Yung had registered some 180 domain names, many of which were composed , in whole or in part, of famous trademarks, see 15 U.S.C. § 1125(d)(1)(B)(i)(VIII), and he registered the domain names using false identification information, see id. § 1125(d)(1)(B)(i)(VII).

4We do not address the appellant’s arguments regarding the non-ACPA cl aims, as the relief granted to the appellees was available upon the District Court’s grant of judgment fo r the appellees on the ACPA claim. 4 [9] the extent to which the mark incorporated in the [registrant’s] domain name 1 registration is or is not distinctive and famous . . . . 2 3 15 U.S.C. § 1125(d)(1)(B)(i). 2 4 By Yung’s own admission, he seeks to “acquire high value domain names and park them with 5 domain parking service providers to generate pay-per-click revenue.” Webadviso v. Bank of Am. Corp. , 6 No. 09 Civ. 5769, 2010 WL 521117, at *2 (S.D.N.Y. Fe b. 16, 2010). By doing so in this case, Yung 7 ran afoul of the ACPA, for whether or not he had any intention of selling the domain names to 8 appellees, he clearly had the intention to profit fromthe goodwill associated with the trademarks that 9 comprised the domain names. His business mode l relied upon diverting internet users (presumably, 10 among others, those who were attempting to access the websites of Bank of America and Merrill 11 Lynch) to his own website—which contained content that could tarnish the infringed marks, or at the 12 very least was not what the searchers sought to find—in order to profit from the “pay-per-click 13 revenue” that their increased web traffic would bring his site. See 15 U.S.C. § 1125(d)(1)(B)(i)(V) (bad 14 faith may be inferred from “the person’s intent to divert consumers from the mark owner's online 15 location to a site accessible under the domain name that could harm the goodwill represented by the 16 mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a 17 likelihood of confusion as to the source, sponsorship , affiliation, or endorsement of the site”). The 18 appellant’s own self-description makes clear that he registered the domain names in bad faith and 19 thereby violated the ACPA. 3 Accordingly, no genuine issue of material fact prevented the District 20 Court from granting summary judgment to the appellees on the ACPA counter-claim. 4 215 CONCLUSION 1 We have considered and examined the appellant’s arguments on appeal and find they are 2 without merit. Accordingly we AFFIRM the judgment of the District Court. 3
4 FOR THE COURT, 5 Catherine O’Hagan Wolfe, Clerk of Court 6 7