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 either registered or is using it in bad faith. “The consensus view since the Policy was implemented in 1999 has been that the conjunctive ‘and’ indicates that there must be bad faith both at the time of registration and subsequently,” Mile, Inc. v. Michael Burg, D2010-2011 (WIPO February 7, 2011). In passing the Anticybersquatting Consumer Protection Act, of course, the U.S. Congress chose the disjunctive regime.
A recent competitive construction of the UDRP that has not achieved consensus, a line of cases deriving from City Views Limited v. Moniker Privacy Services / Xander, Jeduyu, ALGEBRALIVE, D2009-0643 (WIPO July 3, 2009) (“Mummygold”) unifies “registration” and “use” where the respondent is shown to use the domain name in bad faith under paragraph 4(b)(iv) of the Policy by holding the respondent to its representation and warranty. Paragraph 2 of the Policy provides that
By applying to register a domain name, or asking us to renew a domain name registration, you hereby represent and warrant to us that … (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name infringes or violates someone else’s rights.
According to the 3-member Panel in Mile, the Mummygold and like-minded Panels “observed that this warranty could be breached by post-registration abuses and concluded, as expressed in Octogen [Pharmacal Company, Inc. v. Domains By Proxy, Inc. / Rich Sanders and Octogen e-Solutions, D2009-0786 (WIPO August 19, 2009)] that such conduct ‘may be deemed to be retroactive bad faith registration’.” The Mummygold/Octogen construction has its admirers, but its acceptance would upset the precedential consistency of the UDRP which has been a decade in the making.
It is not that the Mummygold/Octogen construction is without merit, but for the UDRP it is too late. Thus, noted the Panel in Mile “[i]f a consensus developed that a line of prior decisions had reached the wrong result, and if panels generally adopted a new approach on an issue, this Panel also would be open to considering whether a new approach was appropriate, both substantively under the Policy and in order to promote consistency.” However, as the the Mile Panel concluded the “Mummygold/Octogen reasoning has not prompted any such consensus; to the contrary, a number of decisions have expressly considered and rejected it.” That being the case, it would be too disruptive to overturn a fundamental jurisprudential construction which could only happen at the expense of consistency.
This does not “discount the relevance of paragraph 2 of the Policy to the question of bad faith registration in appropriate cases.” Paragraph 2 of the Policy “may create an obligation on a registrant to conduct some due diligence in order to determine whether the domain name at issue infringes any third party rights, especially if the registrant intends to use it for commercial purposes such as a PPC website,” Mile. This refers to the heightened due diligence obligation of respondents in the business of monetizing domain names, a construction formulated in Mobile Communication Service Inc. v. WebReg, RN, D2005-1304 (WIPO February 24, 2006) that has attracted a consensus.