Individual's Names held by Others?

[dotNetKing]

As far as the WIPO/UDRP procedure is concerned, a complainant needs to show that the domain was registered in bad faith.

If you didn't register the name in bad faith (e.g. you didn't register to sell it to John Smith the famous footballer, because he wasn't a famous footballer at the time), then the theory would go that there is no reason you should lose a domain in a UDRP process, unless of course you don't counter the claim that you registered the domain in bad faith.

I think I have written back to a compainant before the UDRP stage was reached in about 5 or 6 cases stating that I didn't register the domain in bad faith and in none of the cases was the matter taken further. In a couple the complainant purchased the domain for a modest price. (These were not first name surname domains).

 

[tas38]

Why would you be, assuming it doesn't exist....

When I first signed up for a reseller account at enom in 04, I read all the stuff and it was in there I'm 110% sure. I've also read a few other people saying the same, now I could be wrong that it is Icann rules. As I looked but have not seen it, in my enom reseller account just now. I also searched Icann, but I'm not even sure how to search for it right.

But I did see enom terms are, they can keep from renewing or regging any domain. For any reason that they want, with in the first 30 days. It may be that enom, had that rule and not Icann and enom just changed it. To for any reason what they want, to cover all their bases for what ever they wanted.

None less, to reply to me like you did is uncalled for. Hopefully others have seen what I read as well, and will put some more light into it being enoms or Icanns rule. My guess after reading enoms terms, that it was there rule and they just changed it to cover anything and everything.

 

[Mark Talbot]

As far as the WIPO/UDRP procedure is concerned, a complainant needs to show that the domain was registered in bad faith.

If you didn't register the name in bad faith (e.g. you didn't register to sell it to John Smith the famous footballer, because he wasn't a famous footballer at the time), then the theory would go that there is no reason you should lose a domain in a UDRP process, unless of course you don't counter the claim that you registered the domain in bad faith.

That in essense is the environment I was wondering about.

Thanks for the fyi iyho.

 

[tas38]

That way is a to simply to look at it, when infact there is more criteria to it then just bad faith. If they find ii) to be true, then they can find you got it in bad faith as well.


What are the criteria for a decision?

The commission decides the outcome of a dispute taking into account all the criteria set out in UDRP principles, which include specific examples of the way in which the parties may prove that they meet the criteria.

i) the domain name is identical to the trademark or service mark for which the claimant holds rights, or is similar enough to create confusion;

ii) the defendant has no rights or legitimate interest regarding the domain name (for example a legitimate offer of services or products under the same name);

iii) the domain name has been registered or used in bad faith.


http://www.sosdomaines.com/index.php?service_id=11

 

[DNQuest.com]

( Of all the idiotic posts you've written )

Well then how about you find it your self, I'm not the one trying to make money off of a stars TM name here. I read it some time back, in enoms TOS and it not as easy to find with all their fine print these days. But I read it, and seen it a few other times.

And with all the idiotic posts you've written, like you said so I'm not going to do the research for you. Believe it or not, but I read it more then once.

I have to agree, stupid thing to say. There is no such condition to owning domain names. If you read that, you read it wrong. Unless maybe some other clueless poster wrote it a while back and you took it as gospel. But you are wrong, simple as that.

 

[Mark Talbot]

The commission decides the outcome of a dispute taking into account all the criteria set out in UDRP principles, which include specific examples of the way in which the parties may prove that they meet the criteria.

i) the domain name is identical to the trademark or service mark for which the claimant holds rights, or is similar enough to create confusion;

ii) the defendant has no rights or legitimate interest regarding the domain name (for example a legitimate offer of services or products under the same name);

iii) the domain name has been registered or used in bad faith.

So, in my example earlier, having aquired a namedomain and held it for years with no such (famous) person or trademark on the name...

i) I would assume this ruling would only be true if in fact a domain is registered AFTER a trademark or service mark pre-exists. Trademarks are usually issued with bias to the entiety that can demonstrate first use, and if I park the name and held it for years, am I not first using it for purposes of income generation without vioaltion of any trademark or service mark?

ii) Wouldnt this same issue apply to 99% of domain names owned by the members of this forum as speculative investing on the names is the primary purpose of most members of this forum? Does that mean all I have to do is file for trademark on any or all the domain names names I find listed here in this forum for sale for for big bucks or even small change, and then just file for "misuse" or lack of "legitimate interest" to claim ownership of the domain names be returned to me?

iii) can a name actually be registered in bad faith if no one person can effectively claim it, even if it is a common name, and no celebrity status nor trademark applied? There could be at minimum a hundred like-named individuals of no famous consequence, and if one has rights to it, they all do equally?

 

[DNQuest.com]

i) parking may not be concidered creating interest in the domain. Developed sites is how you create interest..

ii) Of course there is criteria that needs to be met. You jsut can't file for a TM for the purpose of trying to obtain a domain.

iii) If the person cannot prove their name is afforded TM protection, then there isn't much they can do. There was a recent case of an executive (I believe it was an AOL executive) who tried getting their domain, but was denied because he did not prove his name was used in commerce and could not prove common law TM. (But as a side note, I thought his case was lacking and could have done a better job)

 

[dotNetKing]

...


What are the criteria for a decision?

.....

iii) the domain name has been registered or used in bad faith.


http://www.sosdomaines.com/index.php?service_id=11

I believe the source you quote made one small but crucial mistake.

"(iii) your domain name has been registered and is being used in bad faith."

http://www.icann.org/dndr/udrp/policy.htm

Note the "and" in the ICANN policy rather than the "or" in the secondary source you quote.

Whether a panel decides to change the "and" to an "or" is a different matter, and it may be that some panels do this. I don't know. The original is clear in meaning though. Both bad faith registration and current bad faith use are required.

Disclaimer: This is my interpretation and is not necessarily correct.

 

[tas38]

And you are right, I have not noticed that at all.

 

[DNQuest.com]

I believe the source you quote made one small but crucial mistake.

"(iii) your domain name has been registered and is being used in bad faith."

http://www.icann.org/dndr/udrp/policy.htm

Note the "and" in the ICANN policy rather than the "or" in the secondary source you quote.

Whether a panel decides to change the "and" to an "or" is a different matter, and it may be that some panels do this. I don't know. The original is clear in meaning though. Both bad faith registration and current bad faith use are required.

Disclaimer: This is my interpretation and is not necessarily correct.

The trend is they determine usage is in bad faith, so it must have been registered in bad faith. So it is viewed as "or". Sad but true.

 

[jhansen]

I have to agree, stupid thing to say. There is no such condition to owning domain names. If you read that, you read it wrong. Unless maybe some other clueless poster wrote it a while back and you took it as gospel. But you are wrong, simple as that.

I think you and EJS owe him an apology. His grammar may not be the greatest, there may be a participle dangling here and there, but if you took the 10 seconds I did to actually research the issue instead of just dismiss him...you'd have found this:

http://www.arb-forum.com/domains/decisions/94975.htm

Registration and Use in Bad Faith

Complainant asserts Respondent acted and is acting in bad faith. The Respondent has not denied that assertion.

The Respondent has failed to develop the site within a two-year period since registering the domain name. This raises the inference that the domain name was registered in bad faith. See American Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 18, 2000) (finding that a failure to develop the site in a two-year period creates an inference that the domain name was registered without a bona fide intent to use the name in good faith). Evidence of nonuse of a domain name for a period of time demonstrates use of the domain name in bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (finding that passive holding of a domain name is evidence of use in bad faith).

The Respondent has also provided incomplete and inaccurate information in the WHOIS directory. For example, when the Complainant attempted to send e-mail to the Respondent, the Complainant received an error message. This, in addition to the Respondent’s failure to respond to the Complainant’s communication attempts, is evidence of bad faith. See America Online, Inc. v. QTR Corp., FA 92016 (Nat. Arb. Forum May 9, 2000) (holding that providing incomplete and/or false information in the WHOIS directory is evidence of bad faith).

The panel concludes that the Respondent registered and is using the domain name in bad faith.

-Justin

 

[tas38]

I knew I read about the 2 year rule, and indeed it's has just that there.

 

[DNQuest.com]

jhansen, apologize for what? Are you talking about the 2 year rule (which there is none)? If so, then maybe you should read the decision closer. It refers to the respondant not have a bonafide usage of the domain for 2 years, so they are establishing that 2 years of not using an infringing domain is more than long enough to try to put something up to establish rights to the domain. In that case, the domain owner did not and the panel went to far to see if there was an established site, there was not.

So to break it down, passively holding a TMed domain is never a good thing. I stress "develop the site". Many times in UDRPs, respondants use the "I intended to use the domain" and all this decision states that in the 2 years years from registration to the time the dispute was filed (which would be 2 years) was more than long enough for any "intent usage of the domain" to be implemented. There was none. But in no way is there a "2 year rule"

Nice try

EDIT TO ADD: There are also many other decisions which state the time period from registration to UDRP filing that shows infringing domains were passively held. At least teh panelist were trying to see if the domain owner tried to at least establish rights to the domain.

I knew I read about the 2 year rule, and indeed it's has just that there.

And this is how misinformation gets bantered about.

 

[Deleted member 70408]

jhansen, apologize for what? Are you talking about the 2 year rule (which there is none)? If so, then maybe you should read the decision closer. It refers to the respondant not have a bonafide usage of the domain for 2 years, so they are establishing that 2 years of not using an infringing domain is more than long enough to try to put something up to establish rights to the domain. In that case, the domain owner did not and the panel went to far to see if there was an established site, there was not.

So to break it down, passively holding a TMed domain is never a good thing. I stress "develop the site". Many times in UDRPs, respondants use the "I intended to use the domain" and all this decision states that in the 2 years years from registration to the time the dispute was filed (which would be 2 years) was more than long enough for any "intent usage of the domain" to be implemented. There was none. But in no way is there a "2 year rule"

Nice try

EDIT TO ADD: There are also many other decisions which state the time period from registration to UDRP filing that shows infringing domains were passively held. At least teh panelist were trying to see if the domain owner tried to at least establish rights to the domain.



And this is how misinformation gets bantered about.

jhansen, it's nice that you are trying to be a good samaritan and whatnot, but you shouldn't try to defend someone by providing misinformation (or misinterpreted information). Just to clarify, it's not simply tas38's grammar, punctuation, spelling...etc that is most bothersome, rather it's his often misinformed posting that annoys me. At the time of my initial post, I had recently read three or four other threads where tas38 posted bad information/advice (See Minimise.com legal thread for a quick example), and I didn't filter my post.