In a WIPO decision a sole panelist took away a domain registered by the domain holder in 1997, that’s 13 years ago.
The domain at issue is sporto.com
Over the years, the domain has been used many different ways including as a developed site but also for a period of time as a parked page.
This case again turned on the bad faith issue.
The policy on bad faith is pretty clearly written:
“””C. Registered and Used in Bad Faith
“”Paragraph 4(a)(iii) of the Policy reads as follows:
“You are required to submit to a mandatory administrative proceeding in the event that a third party (a “complainant”) asserts to the applicable Provider, in compliance with the Rules of Procedure, that:
(iii) your domain name has been registered AND is being used in bad faith.”
However this becomes another panel that interprets the work “And” as “or” and wants to judge “Bad Faith” not only at the time of registration but each year at the time of renewal:
“”Until last year Respondent’s pre-2008 use of the disputed domain name may have established a defense to the charge of no rights or legitimate interest”
“However this provision not only imposes a duty on the part of the registrant to conduct an investigation at the time of registration, but also includes a representation and warranty by the registrant that it will not now or in the future use the domain name in violation of any laws or regulations. This effectively imposes on the registrant a continuing duty to ensure that the domain name is not used in violation of another’s rights and clearly covers intellectual property rights and the laws protecting them, including copyright and trademark. This representation and warranty is not limited to the moment at which the registrant registers the domain name; rather, it extends to any use of the domain name in the future.”
“”in this Panel’s view bad faith registration can be deemed to have occurred even without regard to the state of mind of the registrant at the time of registration, if the domain name is subsequently used to trade on the goodwill of the mark holder, just as bad faith use can occur without regard to the fact that the domain name at issue has not been (or has been ‘passively’) used.”
“”Registrant provides his undertaking “By applying to register a domain name, or by asking [a registrar] to maintain or renew a domain name registration.”
“”Does the renewal of the registration of a domain name amount to a registration for the purposes of determining whether the domain name was registered in bad faith?
“Consensus view: While the transfer of a domain name to a third party does amount to a new registration, a mere renewal of a domain name does not amount to registration for the purposes of determining bad faith. Registration in bad faith must occur at the time the current registrant took possession of the domain name.”
“Here, at the time of its most recent renewal last year Respondent’s use of the disputed domain name had become prototypical cybersquatting and in no way related to any of Respondent’s businesses. The change came about not through intervening circumstances unrelated to Respondent’s prior good faith use but by Respondent’s conscious choice to change website content.”
“To summarize, in this Panel’s assessment:”
“Respondent intentionally changed its use of the disputed domain name.
“The new use is unrelated to Respondent’s earlier business.
“The new use is textbook cybersquatting.
“The new use occurred prior to the renewal held to be a registration.
“There has been no legitimate use since renewal.”
“The Panel deems Respondent’s 2009 renewal of the disputed domain name to be the date on which to measure whether the disputed domain name was registered and used in bad faith for purposes of paragraph 4(a)(iii), and finds that the Respondent registered and used the disputed domain name in bad faith. The Panel further finds that Respondent’s use of it to redirect to a website that includes hyperlinks to Complainant’s competitors not legitimate under paragraph 4(a)(ii).””
You got to read this part of the opinion:
“”The UDRP does not operate on a strict doctrine of precedent. However panels consider it desirable that their decisions are consistent with prior panel decisions dealing with similar fact situations.”
“This ensures that the UDRP system operates in a fair, effective and predictable manner for all parties”
How can inconsistent opinions be fair effective and predictable. for anyone?
If the UDRP does not operate on a doctrine of precedent which we have noted many times in the past, then there is no consistence and it become unpredictable, as we have called it a crap shoot.
At some point this issue of “And” Vs. “or” is going to have to be decided by a real court which does have to follow Precedent and can’t just make it up as they go like the UDRP panels seem to.