This kind of went under the radar except for some replies on Namepros. Nat Cohen replied to a post and outlined what could be in the works for domain investors if there is significant UDRP reform.
I came across this after reading the excellent back and forth between Josh and Elliot on the purple.com post that DomainInvesting.com published. Elliot had alerted Josh to paragraph 2 and the rule being changed. I would advise you to read that back and forth and then read what Nat wrote on Namepros below.
It is no secret that big brands and the IP lawyers that represent them are frustrated that the UDRP currently makes it difficult to take control of a domain that is being used in bad faith if the domain was registered before the trademark rights arose.
They want to turn the key test in the UDRP into simply “used in bad faith to take advantage of a trademark”.
While that may sound reasonable, in practice it wouldn’t work out so well for domain investors. UDRP panels have found that parking a domain name (whether or not with infringing links) is evidence of bad faith. Also offering a domain name for sale is evidence of bad faith. Also using privacy protection is evidence of bad faith. Also failing to develop a domain name is evidence of bad faith. Also using a domain name for an otherwise legitimate business that is similar to an existing trademark is evidence of bad faith. Also having your registrar set up a coming soon page without your knowledge with advertising links is evidence of bad faith.
In other words, the changes being pushed by many of the most powerful companies and their teams of well-paid IP attorneys would delegitimize the domain investing industry and put at risk most of our domains.
The Working Group that will review the UDRP and propose changes is already underway, with UDRP revision on the table next year.
Paul McGrady, the incoming head of the International Trademark Lawyers Association (INTA)’s Internet Committee has publicly announced his support for turning the UDRP into a “use only” standard-
“While there could be some positive reforms to the UDRP – such as seeking a change that would allow a trademark owner to seek relief in cases where a domain name was registered before the trademark rights came into existence but was used in bad faith after the trademark rights came into existence – there are also reforms which would not be positive for brand owners.”
The domain industry has its work cut out for it to explain our business practices, and to prevent well-intentioned but misguided polices that would enable companies to plunder our portfolios taking whatever valuable domains they want that are similar to trademarks that they starting using long after we acquired the domains.
The ICA (http://www.ica.domains) is the main voice of the domain community on these matters. If you want to continue to have a healthy domain industry, I’d encourage you to join with the dozens of your friends and colleagues from the domain industry in support of the ICA and become part of our community.
Read the whole thread with some insights from John Berryhill here.