“Given the human capacity for mischief in all its forms the Policy sensibly takes an open-ended approach to bad faith, listing some examples without attempting to exhaustively enumerate all its varieties,” Worldcom Exchange, Inc v. Wei.com, Inc., D2004-0955 (WIPO January 5, 2005) (<wei.com>). One of the unlisted bases of bad faith is domain name hijacking. The most recent example is Piearson Industries, Inc. d/b/a Centerfire Firearms v. Dan F / Joe Mayo, FA1107001397844 (Nat. Arb. Forum August 12, 2011). “While Respondent’s use of the disputed <centerfirefirearms.com> domain name does not fit squarely within the elements of Policy ¶ 4(b), the Panel can, and does, find evidence of bad faith registration under Policy ¶ 4(b).” citing Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO August 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”).

The Complainant in Piearson Industries who does not have a registered trademark for CENTERFIRE FIREARMS contended without opposition – not unexpected, respondents accused of hijacking rarely make an appearance – that it lost ownership of the domain name as a result of a fraudulent transfer. It persuaded the Panel that it had a common law right to the term and that the Respondent lacked rights or legitimate interests in the disputed domain name. Respondent’s actionable conduct was underscored by its conduct immediately upon registration, which was “to resolve [the domain name] to an adult-oriented website.” The consensus is that resolving “a disputed domain name to an adult-oriented website weighs heavily against Respondent’s case for legitimate rights and interests,” citing Nat’l Football League Props., Inc. v. One Sex Entm’t Co., D2000-0118 (WIPO April 17, 2000). Subsequently, the Respondent redirected the domain name to a pay-per-click website containing “a message indicating that Complainant’s business has shutdown and provides links to Complainant’s competitors.” Neither of these uses are bona fide offerings of services.

Fraudulent transfer alone is ordinarily prima facie evidence of abusive registration, but as already noted it is not one of the listed examples. So, perhaps to bolster the result, the Panel in Piearson Industries examined the totality of the evidence to support its conclusion of bad faith registration and bad faith use under Paragraph 4(b)(iii) of the Policy, which reads: “[Y]ou have registered the domain name primarily for the purpose of disrupting the business of a competitor.” He concluded that “[b]y falsely informing visitors who had intended to view, and potentially purchase, Complainant’s products that Complainant is no longer in business, Respondent has undoubtedly disrupted Complainant’s business.”

The Panel in Worldcom Exchange listed 6 acts that in the aggregate constituted bad faith registration and bad faith use, as follows:

(a) The Respondent knew or ought to have known that the Domain Name was in use and had been used for many years in connection with an active website;
(b) The Respondent gained access to the NSI ownership database through improper (likely fraudulent) means;
(c) The Respondent changed the ownership records for the Domain Name covertly, without any notice to the rightful owner;
(d) The Respondent used misleading and false contact information when it changed the ownership records;
(e) The Respondent failed to respond to correspondence from the Complainant, and never offered any explanation or justification for its conduct;
(f) The Respondent has disrupted the legitimate business activities of the Complainant, depriving it of access to the domain name and website it had created and maintained for more than 10 years.

Tested against these criteria, the fraudulent registration in Piearson Industries was abusive. By using an identical domain name which resolves to a website indicating that Complainant’s business has closed, and subsequently referring visitors to Complainant’s competitors, Respondent is also in violation of paragraph 4(b)(iv) in that it was “clearly attempting to create confusion as to the creator of the site, as well as the status of Complainant’s business” The resulting “likelihood of confusion” (the phrase used in 4(b)(iv)) benefits Respondent commercially through click income from diverting potential customers of Complainant’s business to Complainant’s competitors.