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Archive | February, 2011

What Use Triggers a Right or Legitimate Interest in a Domain Name?

Where a trademark preexists a domain name the registration may be suspicious but “a legitimate right or interest can certainly be created in an arbitrary or entirely fanciful mark, through lawful adoption and use,” 7(S) Personal GmbH v. Zhaohua Luo, D2010-1953 (WIPO February 3, 2011). “[Un]lawful adoption and use” are complainant’s burdens. Suspicion itself is […]

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Panelists Authorized to Draw Such Inferences As They Consider Appropriate

One can think of a record (the kind submitted in support of legal relief) as a combination of statements and silences. What a party omits in its submission can be equally as important as what it includes. Drawing inferences from silences is not a one-way street. Default in answering a complaint has consequences, even though […]

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Consensus Among Panels that the UDRP is a Conjunctive Regime

The UDRP is a “conjunctive” regime, which means that a finding of abusive registration requires proof that the respondent both registered and is using the disputed domain name in bad faith. Some country code dispute resolution policies such as “.uk” and “.eu” are “disjunctive” regimes, under which the respondent forfeits the domain name if it […]

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Achieving Secondary Meaning for UDRP Standing

An unregistered trademark is no less entitled to protection, 15 U.S.C. §1125 (Section 43 of the Lanham Act) if it has secondary meaning, but distinctiveness is not presumed. A claim for common law protection must be earned. It has been noted that “Panelists with WIPO and NAF have sometimes approached the issue of proof of […]

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Reverse Domain Name Hijacking Presupposes Complainant Acted for an Improper Purpose

Neither mere lack of success of the complaint nor presenting a weak case is sufficient in itself to constitute reverse domain name hijacking under paragraphs 1 (definition) and 15(e) of the Rules. Reverse domain name hijacking is defined as “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a […]

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Question of Bad Faith When Registrar Captures Revenue from Advertising Links

When the respondent captures revenue from advertising links to companies that compete with the complainant and lacks rights or legitimate interests in the domain name it presumptively registered the domain name to take advantage of the complainant’s trademark. Respondents have made a number of attempts to evade the consequences by arguing that the registrar is […]

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Jurisdiction for Domain Names Fraudulently Transferred

In a case not otherwise remarkable, the Respondent in Disney Enterprises, Inc. v. Cyber Domain Services Pvt.Ltd., FA1012001365612 (Nat. Arb. Forum January 31, 2011) asserted in defense that he had a common law trademark for the domain name <waltdisneyswan.com> despite trafficking on a famous trademark. He based his right on a recent case from the […]

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The Burdens of Proof and Persuasion

“It is for the Complainant to prove its case under the Policy, not for the Respondent to prove his defense,” Groupalia Compra Colectiva, S.L. v. Andrea Santini, D2010-1979 (WIPO January 26, 2011). Although the respondent has a burden of persuasion on the issue of right or legitimate interest, it is the complainant who bears the […]

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The “In Mind” Requirement for Proof of Bad Faith

Complainants sometimes have an inflated view of their international reputation: that it has penetrated to the far corners of the world; that it is inconceivable that the respondent was unaware of them; which it may have been when it registered the domain name; even though conceivably no so in the present. But for the complainant […]

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Appealing an Adverse UDRP Award

The Uniform Domain Name Dispute ResoThe Uniform Domain Name Dispute Resolution Policy is an arbitral process implemented in 1999 by the Internet Corporation for Assigned Names and Numbers as an alternative to suing an alleged infringing domain name holder in a jurisdiction where it can be found. The UDRP contains no internal provision for appealing […]

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