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Cybersquatting Under the UDRP & ACPA – One Mediator’s Insights For UDRP Participants

Cybersquatting Under the UDRP & ACPA - One Arbitrator's Insights For UDRP Respondents

Cybersquatting is big business. But many domainers simply fail to appreciate cybersquatting law. In this article, one UDRP arbitrator weighs in on common mistakes and misconceptions about the UDRP.

We recently interviewed a UDRP arbitrator for both the National Arbitration Forum (NAF) and the World Intellectual Property Organization (WIPO) about common mistakes for Respondents in answering Uniform Domain Name Dispute Complaints. Some key points are worth noting:

  • Domains with descriptive or geographic connotations can avoid allegations of trademark infringement if they ensure those domains aren’t used in a way to encroach on the trademark holders products and services. to them.
  • Just because a domain name is descriptive, does not mean Respondent automatically wins.
  • Domainers need to ‘use’ their domains in a legitimate way. Putting up a parking page which serves up advertisements for products and services of the trademark holders competitors is the best way to lose an UDRP arbitration.
  • Sometimes respondents complaint arguing that the word is descriptive, ignoring that their use is specifically for the trademark value. This completely undermines their credibility. “You just have to not be so blatantly just using the domain name for the value of the trademark owner built into it, which is exactly what this policy is supposed to be avoiding.”
  • UDRP Respondent sometimes argue that that they do not have control over the advertisements being shown on on their web site. That is not a good defense and won’t likely avoid a finding of bad faith. “It’s the owner who controls what is posted, and there’s none of this passive responsibility. There’s a live person who owns that domain name, and if they don’t cause specific content to be there, they allow it, and sometimes they do cause that specific content, even on a parking page.”
  • The ” innocent bystander” defense doesn’t work with most arbitrators.
  • Domainers are expected to check for trademarks before they register domains.

The complete interview of the UDRP arbitrator reveals some really good insights for all domain name investors to learn from. it does not do any good to ignore trademark law, or pretend it does not exists. Wishing that the UDRP were different is fine, but it won’t help you if you get served with an arbitration Complaint. Be smart about your domain portfolio and protect you best domains from transfer orders. You won’t regret it. AN ounce of prevention really is worth a pound of cure.

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