Probably not relevant. DG has spawned a variety of threads seeking the UDRP "magic bullet". Some people become fascinated by legal machinery in the same way that perpetual motion machine inventors become fascinated by engineering.
The likelihood is that DG is re-inventing the "Madonna" strategy, but has yet to discover that one can obtain a duly registered trademark in Tunisia in 24 hours.
http://www.wipo.int/amc/en/domains/decisions/html/2000/d2000-0847.html
Second, Respondent contends that it has rights in the domain name because it registered MADONNA as a trademark in Tunisia prior to notice of this dispute. Certainly, it is possible for a Respondent to rely on a valid trademark registration to show prior rights under the Policy. However, it would be a mistake to conclude that mere registration of a trademark creates a legitimate interest under the Policy.
One can certainly proffer the pending trademark application as evidence of "substantial preparations to use the domain name" in the course of the UDRP.
The Panel, in turn, can certainly consider the sincerity of those preparations.
Note that DG points out the TM application was filed before the UDRP. This is something of an interpretational error often made with the UDRP clause "prior to notice of a dispute" in connection with legitimate rights and interests.
What matters is not whether the TM application was filed prior to the UDRP, but whether it was filed "prior to notification of a dispute".
That "notification" can take a variety of forms. It might be a c&d letter notifying the domain registrant that, yes, we dispute this domain registration.
If I were a panelist confronting a hyper-legalistic response which relied on the respondent having filed a trademark application, my question is going to be "Did this guy file the trademark application out of some bona fide development of commercial interests, or did he file it as some kind of 'UDRP insurance', knowing full well that the complainant was likely to come after him?"
Judges, and UDRP panelists, are not some sort of automated data processing system. They are people, and quite often well-jaded ones at that. If the totality of circumstances suggests a substantial probability that the respondent's actions are less suggestive of "legitimate rights" and more suggestive of "gaming the system", then half-baked legal schemes wrapped in a veneer of fancy prose doesn't cut it.
