CALABRESI, CIRCUIT JUDGE:

This case originally involved the application of the Federal Trademark Dilution Act ("FTDA") to the Internet.  While the case was pending on appeal, however, the Anticybersquatting Consumer Protection Act ("ACPA"), Pub.L. No. 106-113 (1999), see H.R.Rep. No. 106-479 (Nov. 18, 1999), was passed and signed into law.  That new law applies to this case.

BACKGROUND

Although the Internet is on its way to becoming a familiar aspect in our daily lives, it is well to begin with a brief explanation of how it works.  The Internet is a network of computers that allows a user to gain access to information stored on any other computer on the network.  Information on the Internet is lodged on files called web pages, which can include printed matter, sound, pictures, and links to other web pages.  An Internet user can move from one page to another with just the click of a mouse.
Web pages are designated by an address called a domain name.  A domain name consists of two parts: a top level domain and a secondary level domain.  The top level domain is the domain name's suffix.  Currently, the Internet is divided primarily into six top level domains: (1) .edu for educational institutions; (2) .org for non-governmental and non-commercial organizations; (3) .gov for governmental entities; (4) .net for networks; (5) .com for commercial users, and (6) a nation-specific domain, which is .us in the United States.  The secondary level domain is the remainder of the address, and can consist of combinations of letters, numbers, and some typographical symbols."  To take a simple example, in the domain name gtcnn.com," cnn ("Cable News Network") represents the secondary level domain and com represents the top level domain.  Each domain name is unique.
Over the last few years, the commercial side of the Internet has grown rapidly.  Web pages are now used by companies to provide information about their products in a much more detailed fashion than can be done through a standard advertisement.  Moreover, many consumers and businesses now order goods and services directly from company web pages.  Given that Internet sales are paperless and have lower transaction costs than other types of retail sales, the commercial potential of this technology is vast.
For consumers to buy things or gather information on the Internet, they need an easy way to find particular companies or brand names.  The most common method of locating an unknown domain name is simply to type in the company name or logo with the suffix .com.  If this proves unsuccessful, then Internet users turn to a device called a search engine.   A search engine will find all web pages on the Internet with a particular word or phrase.  Given the current state of search engine technology, that search will often produce a list of hundreds of web sites through which the user must sort in order to find what he or she is looking for.  As a result, companies strongly prefer that their domain name be comprised of the company or brand trademark and the suffix .com.  See H.R.Rep. No. 106-412, at 5 (1999).

Until recently, domain names with the .com top level domain could only be obtained from Network Solutions, Inc. ("NSI").  Now other registrars may also assign them.  But all these registrars grant such names primarily on a first-come, first-served basis upon payment of a small registration fee.  They do not generally inquire into whether a given domain name request matches a trademark held by someone other than the person requesting the name.  See id.

Due to the lack of any regulatory control over domain name registration, an Internet phenomenon known as "cybersquatting" has become increasingly common in recent years.  See, e.g., Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.1998). Cybersquatting involves the registration as domain names of well-known trademarks by non-trademark holders who then try to sell the names back to the trademark owners.  Since domain name registrars do not check to see whether a domain name request is related to existing trademarks, it has been simple and inexpensive for any person to register as domain names the marks of established companies.  This prevents use of the domain name by the mark owners, who not infrequently have been willing to pay "ransom" in order to get "their names" back.  See H.R.Rep. No. 106-412, at 5-7; S.Rep. No. 106-140, at 4-7 (1999).

Sportsman's is a mail order catalog company that is quite well-known among pilots and aviation enthusiasts for selling products tailored to their needs.  In recent years, Sportsman's has expanded its catalog business well beyond the aviation market into that for tools and home accessories.  The company annually distributes approximately 18 million catalogs nationwide, and has yearly revenues of about $50 million.  Aviation sales account for about 60% of Sportsman's revenue, while non-aviation sales comprise the remaining 40%.

In the 1960s, Sportsman's began using the logo "sporty" to-identify its catalogs and products.  In 1985, Sportsman's registered the trademark sporty's with the United States Patent and Trademark Office.  Since then, Sportsman's has complied with all statutory requirements to preserve its interest in the sporty's mark.  Sporty's appears on the cover of all Sportsman's catalogs; Sportsman's international toll free number is 1-800-4sportys; and one of Sportsman's domestic toll free phone numbers is 1-800-Sportys.  Sportsman's spends about $10 million per year advertising its sporty's logo.

Omega is a mail order catalog company that sells mainly scientific process measurement and control instruments.  In late 1994 or early 1995, the owners of Omega, Arthur and Betty Hollander, decided to enter the aviation catalog business and, for that purpose, formed a wholly-owned subsidiary called Pilot's Depot, LLC ("Pilot's Depot").  Shortly thereafter, Omega registered the domain name sportys.com with NSI.  Arthur Hollander was a pilot who received Sportsman's catalogs and thus was aware of the sporty's trademark.

In January 1996, nine months after registering sportys.com, Omega formed another wholly-owned subsidiary called Sporty's Farm and sold it the rights to sportys.com for $16,200.  Sporty's Farm grows and sells Christmas trees, and soon began advertising its Christmas trees on a sportys.com web page.  When asked how the name Sporty's Farm was selected for Omega's Christmas tree subsidiary, Ralph S. Michael, the CEO of Omega and manager of Sporty's Farm, explained, as summarized by the district court, that:

in his own mind and among his family, he always thought of and referred to the Pennsylvania land where Sporty's Farm now operates as Spotty's farm.  The origin of the name ... derived from a childhood memory he had of his uncle's farm in upstate New York.  As a youngster, Michael owned a dog named Spotty.  Because the dog strayed, his uncle took him to his upstate farm.  Michael thereafter referred to the farm as Spotty's farm.  The name Sporty's Farm was ... a subsequent derivation.

Joint Appendix ("JA") at 277 (emphasis added).  There is, however, no evidence in the record that Hollander was considering starting a Christmas tree business when he registered sportys.com or that Hollander was ever acquainted with Michael's dog Spotty.

In March 1996, Sportsman's discovered that Omega had registered sportys.com as a domain name.  Thereafter, and before Sportsman's could take any action, Sporty's Farm brought this declaratory action seeking the right to continue its use of sportys.com. Sportsman's counterclaimed and also sued Omega as a third-party defendant for, inter alia, (1) trademark infringement, (2) trademark dilution pursuant to the FTDA, and (3) unfair competition under state law.  Both sides sought injunctive relief to force the other to relinquish its claims to sportys.com. While this litigation was ongoing, Sportsman's used "sport-ys-catalogs.com" as its primary domain name.

After a bench trial, the court rejected Sportsman's trademark infringement claim and all related claims that are based on a "likelihood of [consumer] confusion" since "the parties operate wholly unrelated businesses [and therefore, confusion in the marketplace is not likely to develop." Id. at 282-83.  But on Sportsman's trademark dilution action, where a likelihood of confusion was not necessary, the district court found for Sportsman's.  The court concluded (1) that sporty's was a famous mark entitled to protection under the FTDA since "the 'Sporty's' mark enjoys general name recognition in the consuming public," id. at 288, and (2) that Sporty's Farm and Omega had diluted sporty's because "registration of the i sportys.com' domain name effectively compromises Sportsman's Market's ability to identify and distinguish its goods on the Internet....[by] preclud[ing] Sportsman's Market from using its 'unique identifier,' " id. at 289.  [The district court issued an injunction.]

As we noted above, while this appeal was pending, Congress passed the ACPA.  That law was passed "to protect consumers and American businesses, to promote the growth of online commerce, and to provide clarity in the law for trademark owners by prohibiting the bad-faith and abusive registration of distinctive marks as Internet domain names with the intent to profit from the goodwill associated with such marks-a practice commonly referred to as 'cybersquatting'." S.Rep. No. 106-140, at 4. In particular, Congress viewed the legal remedies available for victims of cybersquatting before the passage of the ACPA as "expensive and uncertain." H.R.Rep. No. 106-412, at 6. The Senate made clear its view on this point:

While the [FTDA] has been useful in pursuing cybersquatters, cybersquatters have become increasingly sophisticated as the case law has developed and now take the necessary precautions to insulate themselves from liability.  For example, many cybersquatters are now careful to no longer offer the domain name for sale in any manner that could implicate liability under existing trademark dilution case law.  And, in cases of warehousing and trafficking in domain names, courts have sometimes declined to provide assistance to trademark holders, leaving them without adequate and effective judicial remedies.  This uncertainty as to the trademark law's application to the Internet has produced inconsistent judicial decisions and created extensive monitoring obligations, unnecessary legal costs, and uncertainty for consumers and trademark owners alike.

S.Rep. No. 106-140, at 7. In short, the ACPA was passed to remedy the perceived shortcomings of applying the FTDA in cybersquatting cases such as this one.

The new act accordingly amends the Trademark Act of 1946, creating a specific federal remedy for cybersquatting.  The Act provides that "a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark," 15 U.S.C. § 1125(d)(1)(C), if the domain name was "registered before, on, or after the date of the enactment of this Act," Pub.L. No. 106-113, § 3010.  It also provides that damages can be awarded for violations of the Act, but that they are not 9 4 available with respect to the registration, trafficking, or use of a domain name that occurs before the date of the enactment of this Act." Id.

DISCUSSION

This case has three distinct features that are worth noting before we proceed further.  First, our opinion appears to be the first interpretation of the ACPA at the appellate level.  Second, we are asked to undertake the interpretation of this new statute even though the district court made its ruling based on the FTDA.  Third, the case before us presents a factual situation that, as far as we can tell, is rare if not unique: A Competitor X of Company Y has registered Y's trademark as a domain name and then transferred that name to Subsidiary Z, which operates a business wholly unrelated to Y.  These unusual features counsel that we decide no more than is absolutely necessary to resolve the case before us.

A. Application of the ACPA to this Case

The first issue before us is whether the ACPA governs this case.  The district court based its holding on the FTDA since the ACPA had not been passed when it made its decision.  Because the ACPA became law while this case was pending before us, we must decide how its passage affects this case.  As a general rule, we apply the law that exists at the time of the appeal.  See, e.g., Hamm v. City of Rock Hill, 379 U.S. 306, 312-13, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964) (" '[Ilf subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied."' (quoting United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801))).

But even if a new law controls, the question remains whether in such circumstances it is more appropriate for the appellate court to apply it directly or, instead, to remand to the district court to enable that court to consider the effect of the new law.  We therefore asked for additional briefing from the parties regarding the applicability of the ACPA to the case before us.  After receiving those briefs and fully considering the arguments there made, we think it is clear that the new law was adopted specifically to provide courts with a preferable alternative to stretching federal dilution law when dealing with eybersquatting cases.  Indeed, the new law constitutes a particularly good fit with this case.  Moreover, the findings of the district court, together with the rest of the record, enable us to apply the new law to the case before us without difficulty.  Accordingly, we will do so and forego a remand.

B. "Distinctive" or "Famous"

Under the new Act, we must first determine whether sporty's is a distinctive or famous mark, and thus entitled to the ACPA's protection.  See 15 U.S.C. § 1125(d)(1)(A@;(ii)(I), (II).  The district court concluded that sporty's is both distinctive and famous.  We agree that sporty's is a "distinctive" mark.  As a result, and without casting any doubt on the district court's holding in this respect, we need not, and hence do not, decide whether sporty's is also a "famous" mark.

Distinctiveness refers to inherent qualities of a mark and is a completely different concept from fame.  A mark may be distinctive before it has been used-when its fame is nonexistent.  By the same token, even a famous mark may be so ordinary, or descriptive as to be notable for its lack of distinctiveness.  See Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 215-26 (2d Cir.1999).  We have no doubt that sporty's, as used in connection with Sportsman's catalogue of merchandise and advertising, is inherently distinctive.  Furthermore, Sportsman's filed an affidavit under 15 U.S.C. § 1065 that rendered its registration of the sporty's mark incontestable, which entitles Sportsman's "to a presumption that its registered trademark is inherently distinctive."  Equine Technologies, Inc. v. Equitechnology, Inc., 68 F.3d 542, 545 (1st Cir.1995).  We therefore conclude that, for the purposes of § 1125(d)(1)(A)(ii)(I), the sporty's mark is distinctive.

C. "Identical and Confusingly Similar"

The next question is whether domain name sportys.com is "identical or confusingly similar to" the sporty's mark.  15 U.S.C. § 1125(d)(1)(A)(ii)(I).  As we noted above, apostrophes cannot be used in domain names.  See supra note [a].  As a result, the secondary domain name in this case (sportys) is indistinguishable from the Sportsman's trademark (sporty's).  Cf. Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1055 (9th Cir.1999) (observing that the differences between the mark "MovieBuff" and the domain name "moviebuff.com" are "inconsequential in light of the fact that Web addresses are not caps-sensitive and that the '.com' top-level domain signifies the site's commercial nature").  We therefore conclude that, although the domain name sportys.com is not precisely identical to the sporty's mark, it is certainly "confusingly similar" to the protected mark under § 1125(d)(1)(A)(ii)(I).

D. "Bad Faith Intent to Profit"

We next turn to the issue of whether Sporty's Farm acted with a "bad faith intent to profit" from the mark sporty's when it registered the domain name sportys.com. 15 U.S.C. § 1125(d)(1)(A)(i).  The statute lists nine factors to assist courts in determining when a defendant has acted with a bad faith intent to profit from the use of a mark.  But we are not limited to considering just the listed factors when making our determination of whether the statutory criterion has been met.  The factors are, instead, expressly described as indicia that "'may" be considered along with other facts.  Id. § 1125(d)(1)(B)(i).

We hold that there is more than enough evidence in the record below of "bad faith intent to profit" on the part of Sporty's Farm (as that term is defined in the statute), so that "no reasonable factfinder could return a verdict against" Sportsman's.  Norville v. Staten Island Univ.  Hosp., 196 F.3d 89, 95 (2d Cir.1999).  First, it is clear that neither Sporty's Farm nor Omega had any intellectual property rights in sportys.com at the time Omega registered the domain name.  See id. § 1125(d)(1)(B)(i)(I).  Sporty's Farm was not formed until nine months after the domain name was registered, and it did not begin operations or obtain the domain name from Omega until after this lawsuit was filed.  Second, the domain name does not consist of the legal name of the party that registered it, Omega.  See id. § 1125(d)(1)(B)(i)(II).  Moreover, although the domain name does include part of the name of Sporty's Farm, that entity did not exist at the time the domain name was registered.

The third factor, the prior use of the domain name in connection with the bona fide offering of any goods or services, also cuts against Sporty's Farm since it did not use the site until after this litigation began, undermining its claim that the offering of Christmas trees on the site was in good faith.  See id. § 1125(d)(1)(B)(i)(III).  Further weighing in favor of a conclusion that Sporty's Farm had the requisite statutory bad faith intent, as a matter of law, are the following: (1) Sporty's Farm does not claim that its use of the domain name was "noncommercial" or a "fair use of the mark," see id. § 1125(d)(1)(B)(i)(IV), (2) Omega sold the mark to Sporty's Farm under suspicious circumstances, see Sporty's Farm v. Sportsman's Market, No. 96CV0756 (D.Conn. Mar. 13, 1998), reprinted in Joint Appendix at A277 (describing the circumstances of the transfer of sportys.com); 15 U.S.C. § 1125(d)(1)(B)(i)(VI), and, (3) as we discussed above, the sporty's mark is undoubtedly distinctive, see id. § 1125(d)(1)(B)(i)(IX).

The most important grounds for our holding that Sporty's Farm acted with a bad faith intent, however, are the unique circumstances of this case, which do not fit neatly into the specific factors enumerated by Congress but may nevertheless be considered under the statute.  We know from the record and from the district court's findings that Omega planned to enter into direct competition with Sportsman's in the pilot and aviation consumer market.  As recipients of Sportsman's catalogs, Omega's owners, the Hollanders, were fully aware that sporty's was a very strong mark for consumers of those products.  It cannot be doubted, as the court found below, that Omega registered sportys.com for the primary purpose of keeping Sportsman's from using that domain name.  Several months later, and after this lawsuit was filed, Omega created another company in an unrelated business that received the name Sporty's Farm so that it could (1) use the sportys.com domain name in s6me commercial fashion, (2) keep the name away from Sportsman's, and (3) protect itself in the event that Sportsman's brought an infringement claim allegingthat a "likelihood of confusion" had been created by Omega's version of CYsersquatting.  Finally, the explanation given for Sporty's Farm's desire to use the domain name, based on the existence of the dog Spotty, is more amusing than credible.  Given these facts and the district court's grant of an equitable injunction under the FTDA, there is ample and overwhelming evidence that, as a matter of law, Sporty's Farm's acted with a "bad faith intent to profit" from the domain name sportys.com as those terms are used in the ACPA.  See Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir.1997) (stating that, as a matter of law, judgment may be granted where "the evidence in favor of the movant is so overwhelming that 'reasonable and fair minded [persons] could not arrive at a verdict against [it].' " (quoting Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir.1994) (alteration in original))).

E. Remedy

Based on the foregoing, we hold that under § 1125(d)(1)(A), Sporty's
Farm violated Sportsman's statutory rights by its use of the spor-tys.com domain name.  The question that remains is what remedy is Sportsman's entitled to.  The Act permits a court to "order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark," § 1125(d)(1)(C) for any "domain name [ ] registered before, on, or after the date of the enactment of [the] Act," Pub.L. No. 106-113, § 3010.  That is precisely what the district court did here, albeit under the pre-existing law, when it directed a) Omega and Sporty's Farm to release their interest in sportys.com and to transfer the name to Sportsman's, and b) permanently enjoined those entities from taking any action to prevent and/or hinder Sportsman's from obtaining the domain name.  That relief remains appropriate under the ACPA.  We therefore affirm the district court's grant of injunctive relief.

[The court went on to hold that damages are not available under the ACPA, the FTDA, or state law.]