|A Case Of Having A Bad Domain Registration Reputation|
WIPO decision rests, in part, on registrant's history of adverse rulings
Interesting ruling by a WIPO single panelist (adjudicator) domain dispute panel.
|“6.38 …The Panel notes that the Respondent appears to have a history of engaging in abusive registrations. The Panel refers in this respect to following WIPO UDRP decisions: Deere & Company v. XC2 (Moniker Privacy Services), WIPO Case No. D2007-1805; Scandic Hotels AB v. xc2, WIPO Case No. D2007-0810; Wal-Mart Stores, Inc. v. xc2, WIPO Case No. D2006-0811; The Belo Company, Belo Investments II, Belo Corp. v. XC2 / Internet Coordinator, WIPO Case No. D2006-0790; Laramar Group, L.L.C. v. XC2, WIPO Case No. D2006-0617; ESPN, Inc. v. XC2, WIPO Case No. D2005-0444; Yahoo! Inc. and Overture Services, Inc. v. Registrant (187640), a/k/a Gary Lam, a/k/a Birgit Klosterman, a/k/a XC2, a/k/a Robert Chua, a/k/a Registrant, WIPO Case No. D2004-0896; and, Martha Stewart Living Omnimedia, Inc. v. XC2, WIPO Case No. D2003-0944. WIPO Case No. D2004-0896 involved a finding against Respondent in relation to no less than 78 domain names.” |
Interesting proposition: What is the tipping point for a "fact finder's" (judge, jury, arbitrator) finding of guilt by cumulative bad behavior?
Might the same logic eventually apply to parking companies, especially the ones who, for years, have allowed famous mark - no bona fide basis for disputation - trademark domains to be monetized?
The same logic could apply to infractions using the Adwords system. It might apply to the efforts of website designers/builders who attempt to rank for a competitor's brand . . in certain instances.
A tip of the hat to Mike Berkens of TheDomains.com for bringing my attention to this decision.
The same concept of "prior activity" has been used in some .eu ADRs to illustrate a pattern of abusive domain registrations. Many of the complainants in ADRs fail completely to use it effectively.
This is the should be of concern to anyone parking domains:
6.10 The generation of revenue from domain name parking activities is not necessarily activity in bad faith. However, it is use in bad faith within the scope of paragraph 4(b)(iv) of the Policy where the registrant is using the domain name in this manner because of its similarity to a mark or name of another person in the hope and expectation that that similarity would lead to confusion on the part of Internet users and result in an increased number of Internet users being drawn to that domain name parking page (see, for example, Express Scripts, Inc. v. Windgather Investments Ltd, supra). The confusion that is usually relevant here is the confusion that draws the Internet user to the respondent’s website in the first place (for example, confusion that leads an Internet user to type the domain name into his Internet browser). It does not matter that when the Internet user arrives at the pay per click site that it then becomes clear that the website is unconnected with the trade mark holder.
In law, this is not entirely new...
A victim of alleged rape will typically be cross-examined as to past behaviour. Of course, the past behaviour of the alleged perpetrator is usually kept from the jury until the verdict is reached but it is normally taken into account during sentencing.
Since the UDRP process is governed by their own set of rules, and decisions are based on WIPO's own case law precedent, this ruling is not surprising (given the distinction from US law pointed out by the above user.)
It is worth noting an abusive registration for the purposes of deriving advertising revenue by riding on the good will of another's trademark is indicative of bad faith.
Thus, if the respondent has a pattern of this type of behavior, I see no reason why WIPO should not take prior bad faith registrations into consideration.
[edited by: buckworks at 8:00 pm (utc) on Dec. 26, 2009]
[edit reason] No self-promotion; see TOS [/edit]