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Archive | January, 2010

Inattention to the Timing of Rights

Default in appearance is not an admission of any material facts under the UDRP, although letting the complainant make the record increases the likelihood that its facts will support its complaint. But even with that advantage there continue to be decisions that illustrate inattention by complainants to the timing of rights. The date of registration […]

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Spelling and Misspelling Variances to Trademarks

Varying the trademark in some minor way, or typosquatting as it is called generally involves misplacement or dropping of letters, adding or deleting the plural form, or inserting or removing dashes between words. But not all variances support a finding of bad faith even though the domain name may be confusingly similar to the complainant’s […]

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Predicate for Bad Faith, Competing Services Incorporating the Trademark

The Policy has built in protections for competitors whose Internet shingles bear a similarity to descriptive trademarks, but protection does not extend to competitors who incorporate the complainant’s trademark. Many trademarks composed of common words while descriptive can also be distinctive. The Complainant in Fashion Career Center, LLC v. Resume Pro Writers Guild c/o Michael […]

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Descriptive Phrase, Confusing Similarity Between Trademark and Domain Name

Confusion appears twice in the Policy: “confusing similarity” in paragraph 4(a)(i) and “likelihood of confusion” in paragraph 4(b)(iv). A domain name may be similar and confusing from the standpoint of an ordinary observer, but that is only relevant for standing. However, the higher probability that there is a likelihood of confusion may never be reached […]

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Market Presence of Trademark at the Time of Domain Registration

Companies that are oaks today were acorns yesterday. A complainant’s market presence today can be a determining factor for a favorable finding on its prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. However, the same evidence is insufficient to prove respondent’s bad faith registration. eDreams, Inc. v. […]

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Trademark Infringement Outside Scope of the Policy

Just as with current use of trademarks existing in different classes, a trademark holder and a domain name registrant can co-exist in cyberspace using identical or confusingly similar terms. Whether the respondent in a UDRP proceeding is an infringer in a trademark sense is outside the scope of the Policy. The Panel is limited to […]

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Transfer Between Commonly Controlled and Related Persons

A transferee cannot argue that it is untainted by its transferor’s male fide conduct during its ownership and use of a disputed domain name. The rule is that a respondent’s good faith is measured from its own not its predecessor’s acquisition of the domain name. Unless the evidence demonstrates otherwise, a transferee inherits only its […]

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Disturbing the Careful Balance Between Trademark Owners and Domain Name Registrants

The Panel in Torus Insurance Holdings Limited v. Torus Computer Resources, D2009-1455 (WIPO January 10, 2010) is the first panelist to offer a detailed critique of the “retrospective bad faith” line of cases first announced in City Views Limited v. Moniker Privacy Services / Zander, Jeduyu, ALGEBRAL VE, D2009-0643 (WIPO July 3, 2009) (complaint denied) […]

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Distributor Rights, Registering Variants of Complainant’s Trademarks

A distributor’s right or legitimate interest in a domain name depends upon the circumstances under which it acquired the domain name. In a number of early cases the complainant’s distributor agreement was silent on the issue of domain names. It makes it difficult to find “a violation of the Policy when there is no specific […]

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Not All Confusion is Actionable

A trademark holder’s rights are prospective; they may reach back on proof of trademark use in the market place and consumer recognition predating its registration; but otherwise prior use of an identical or confusingly similar term by another as a domain name or identifier of its goods or services belongs to the person who got […]

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