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Disrupting the Business of a Competitor

Paragraph 4(b)(iii) of the Policy reads: “[Y]ou have registered the domain name primarily for the purpose of disrupting the business of a competitor.” Strictly speaking, paragraph 4(b)(iii) applies only if the respondent’s conduct is directed to the “business of a competitor.” The term “disruption” is unique to this provision. It denotes an intentional act by a competitor who has “registered the domain name primarily” for that purpose, and if for another purpose the provision does not apply, InfoSpace.com, Inc. v. Tenenbaum Ofer, D2000-0075 (WIPO April 27, 2000). Registering a domain name in the belief that the complainant’s trademark is generic does not absolve the respondent competitor, Avaya Inc. v. Holdcom, FA0806001210545 (Nat. Arb. Forum August 9, 2008) (<magiconhold.com>) although it may be some evidence that the respondent reasonably believed “that the use of the domain name was a fair use or otherwise lawful,” phrasing picked up from the Anticybersqatting Consumer Protection Act.

However, in the absence of any persuasive explanation or defense a disputed domain name that resolves to an active website that diverts complainant’s customers to respondent’s competing business presumptively violates the Policy. It is per se disruptive. The latest example is Consumer Opinion Corp. v. John Cross, FA1012001362852 (Nat. Arb. Forum January 21, 2011) which is an interesting hybrid since the Respondent is both a competitor and at the same time uses the website for pay-per-click revenue. Assuming the disputed domain name is identical or confusingly similar to the trademark, the first violates 4(b)(iii) and the second 4(b)(iv) of the Policy.

Both Complainant (<pissedconsumer.com>) and Respondent (who added the article “the” and the word “off”, <thepissedoffconsumer.com>) provide space for consumer complaints. The Consumer Opinion Respondent asserted a paragraph 4(c)(iii) defense, which the Panel rejected because “[a] visit to Respondent’s website reveals that there are advertising activities which disproves Respondent’s assertion that the site is conducted in a noncommercial manner.” Also, Respondent’s website had the “look and feel” of Complainant’s website. The Respondent explained that this was because in creating the website it used “a stock joomla template called ‘JA Barite Red,’ and that no changes were made by Respondent to the website’s template. Respondent indicates that he chose the color red because it is a common color associated with anger or being ‘pissed off’.” But, this admission undermined the Respondent’s assertion that it had a right or legitimate interest in the domain name.

Selecting a template closely resembling the complainant’s and duplicating the complainant’s color scheme is also a factor in determining good and bad faith. A disputed domain name that resolves to a website that likely confuses the Internet user into believing that it is on the trademark holder’s website is disruptive to the complainant’s business and has been registered in bad faith.

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