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Archive | Abusive registration

Is the UDRP Biased in Favor of Trademark Owners?

Published in the New York State Bar Association Journal, May 2016, pp. 18-21 In an effort to combat a form of unlawful conduct on the Internet, which saw registrants purchasing domain names identical or confusingly similar to trademarks and leveraging their value for commercial gain at the expense of trademark owners, governments, read further

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Warranties and Representations on Purchasing Domain Names: What are they Worth?

The WIPO Final Report published in April 1999 from which sprung the UDRP the following October is useful in shedding light on what the assembled constituencies had in mind in agreeing to particularly contentious issues. One of those issues was whether registrants had to actively search trademark records before purchasing domain names. Other than paragraph […]

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Quintessential and Other Acts of Bad Faith in Acquiring Domain Names

There are two essential differences between the UDRP and the ACPA, one procedural and one substantive. The procedural difference is quite minor, a mere quirk that Panels adopted by consensus in the early days of the UDRP and deserves no more than a footnote. Under the UDRP, complainants have standing on proof that they have […]

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Running the Gamut: Commentary, Criticism, Tarnishment, Disparagement, and Defamation

The two bookends of speaking one’s mind are commentary and criticism, which is indisputably acceptable as protected speech, and (in order of abuse) tarnishment and disparagement. Defamation, which is a stage beyond disparagement, is not actionable under the UDRP, although tarnishment and disparagement may be. In ICANN’s lexicon, tarnishment is limited in meaning to “acts […]

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Registering and Monetizing Personal Names

At the top of WIPO’s list of the most cybersquatted trademarks for 2015 (issued on March 18, 2016) is “Hugo Boss” with 62 complaints. The report also reveals that the fashion industry led other commercial sectors with 10% of complainant activity. Not surprisingly, in this sector companies (couturiers extending their services to the general public) […]

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Proving and Rebutting Respondent Lacks Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy requires complainants to offer evidence conclusive by itself or sufficient from which to infer that respondents lack rights or legitimate interests in the accused domain names. As I’ve pointed out in earlier essays (here and here) the standard of proof is low and relies on inference, for good reason; beyond […]

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Overreaching Trademark Owners and the Misguided Better Right Theory of Domain Name Ownership

In Blogs devoted to news from the domain name industry and douaniers there is great glee in reporting about overreaching trademark owners. The reason for the glee, I think, is that it’s a form of collective sigh from domainers and the domain industry that the UDP is working as it should, which means that Panels […]

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Respondents Lose for Lack of Any Defensible Proof

Respondents prevail in approximately 12% to 15% of cybersquatting disputes overall, but a higher percentage prevail if they appear and offer persuasive evidence either establishing rights or legitimate interests or rebutting bad faith. When they fail (whether for not appearing or answering the complaint) it is for lack of any defensible proof. Asserting good and […]

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The Respondent Who Specializes in Misspellings

As trademarks composed of dictionary words or descriptive phrases descend the classification scale there is an increasing likelihood of registrants registering and using domain names corresponding to trademarks plausibly lacking knowledge of trademark owners. In the past several months the lower end includes <summertechcamp.com>, <asclepius.com> (God of Medicine), <hopscotch.com>, <topcare.com>, <bankwell.com>, and <unblock.com>. Earlier there […]

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What Does it Take for Complainant to Lose a UDRP Dispute?

Proof in a UDRP dispute is a step by step process; complainant builds its case in a logical progression: this is who I am (my trademark has priority in the market, where priority is measured from the date of domain name registration; or, as in some recent cases, from renewal of registration); this is who […]

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