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Archive | June, 2011

Suspicious, But Not Sufficient Evidence to Support Abusive Registration

A domain name identical or confusingly similar to a trademark is not dispositive of abusive registration; neither is a respondent’s lack of rights or legitimate interests. The three tests are independent of each other. Internet users may in fact be confused; the respondent may in fact fail to prove that it has a right or […]

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What It Means To Be “Commonly Known By the Domain Name”

Paragraph 4(c)(ii) of the Policy is written in the past tense, “have been commonly known by the domain name” (emphasis added). Although the Policy does not specify when respondent was known by the domain name the language suggests that it must have been from a time that preceded the registration of the domain name. In […]

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Asserting Rights to Domain Names Allegedly Owned by Client Customer Who Either Is No Longer in Business or a Figment of the Respondent’s Imagination

Domain names violate the Policy when the purpose for their registration is to take advantage of another’s trademark. Intent is an implicit element of proof. This is why common words used as domain names for their everyday meaning without proof that the respondent had the complainant’s trademark in mind resist monopolization. In many instances, the […]

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Application to Register a Trademark That Has a History of Use in Commerce As Well as Receiving Significant Media Coverage

The complainant’s threshold burden for maintaining a UDRP proceeding is to prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has a right. An application to register a trademark does not satisfy the burden, but proof that the mark has a prior history of […]

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Complaint Dismissed for Failure to Make a Prima Facie Case

Paragraph 4(a)(ii) of the Policy is framed in the present tense: the respondent “lacks rights or legitimate interests” in the disputed domain name. The complainant satisfies its burden by offering a prima facie case, which is defined as one that “will suffice until contradicted and overcome by other evidence.” Once the complainant makes a prima […]

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Work Made for Hire, Copyright Ownership and Assignment

Authors own their copyrights. It is their intellectual property to do with as they will. But, in some instances either by statutory fiat when the work is a “work made for hire” or by written contract  whereby author transfers his rights to another party it isn’t their property. A “work made for hire” is either […]

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Non Commercial Use of the Domain Name and What Constitutes Use

“Actively used” does not require the domain name to resolve to an active website, although websites are “the prevalent use.” The Hong Kong and Shanghai Banking Corporation Limited v. Bill Lynn, D2001-0915 (WIPO September 28, 2001). Email, FTP and hosting services “are legitimate commercial uses …. [T]he lack of a formal web page does not […]

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Typographical Variation of a Common Word: Typosquatting a Registered Mark

Adding, subtracting and transposing letters would seem to imply both knowledge of the complainant’s trademark and an intention to capitalize on the pre-existing goodwill associated with the complainant’s trademark. This is certainly true with recognized brands such as AMAZON (infringed by adding an extra “m” <ammazon.com>), Amazon.com, Inc. v. Victor Korotkov, D2002-0516 (WIPO August 13, […]

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Inactivity of Domain Name a Factor in Determining Intent, Not Conclusive of Bad Faith

Activity is full of evidentiary possibilities. It enlarges the sphere from which inferences can be drawn and can be said to speak even where the respondent defaults. Inactivity of the domain name (passive use) limits the sphere of inference. Instead of content and hyperlinking as proof, inferences have to be drawn from other indicia: the […]

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Constructive Notice of Trademark Does Not Satisfy the Knowledge Requirement of UDRP

The Lanham Act, 15 U.S.C.A at § 1072 provides that registration of a trademark on the principal register is constructive notice of the registrant’s claim of ownership. This statutory concept eliminates lack of knowledge as a defense. The UDRP is constructed on a different model. The complainant has to establish that the respondent had actual […]

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