Fairwinds Partners, which also heads up the Collation Against Domain Name Abuse (CADNA) has weighted in on the recent UDRP decision on Big5.com and whether the bad faith for a domain holder should be judged from only at the time the domain was first registered or acquired or each time the domain name was renewed on its blog today.
Domain investor Nat Cohen wrote an excellent analysis of the issue on domainarts.com, last week and I highly recommend that all domain holders take the time not only to read the post but to understand the issue.
If you read Fairwinds post today, they are calling for UDRP reform but not to help domain holder, s but rather to make the test of bad faith one that is judged everytime the domain name is renewed.
In the Big5.com case the panel found the domain holder registered the domain is good faith which was years before the trademark was registered, however the domain holder’s renewal of the domain was found to be in bad faith and ordered the transfer of the domain name.
“”The panel looked at Par. 2 of the UDRP, which states that when domain name owners register or renew a domain they “represent and warrant” that it does not infringe on the legal rights of others, such as a brand owner. Relying on this paragraph, the panel concluded that, even if the domain was originally registered in good faith, “the elements of the Policy can be studied at the time of the registration or at the time of the renewal….”
“This satisfies the long-held desire of brand owners to use the UDRP to enforce their trademarks in situations where use of a domain has turned from good to bad. But it raises the question of what the drafters of the UDRP intended by also requiring proof that a domain “has been registered and is being used in bad faith.”
“If the Big5.com panel’s conclusions are applied in other cases, could its interpretation lead to odd situations where a domain can flip back-and-forth between good and bad faith depending on how it is being used at the time of its most recent renewal?”
Rather than letting Panelists settle these thorny issues, these inconsistencies should be a matter for those seeking to amend the language of the UDRP itself after a full and open debate (after all, the thing is almost 15 years old and could use some renovation!). Perhaps it’s time to change “and” to “or” as it is used in the dispute policies of certain other country-code domains.