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Frontier Compliance: A Communication System Emerging in Cyberspace
Unformatted Document Text:  14 from a person, Mr. Katz, who was known by a nickname Penguin. 9 It was acknowledge that Mr. Katz holds rights and legitimate interests in the name penguin. However, the UDRP decisions seem to be inconsistent regarding whether noncommercial or fair use of a domain name should be acknowledged. In a proceeding regarding www.walmartsucks.com , the site was noncommercial as it was operated for unsatisfied customers of the Wal-Mart stores, but the decision was made for the transfer of the domain name to Wal-Mart Stores, Inc. On the other hand, in a proceeding regarding www.scientologies.org, it was decided that the use of the domain name for a critique site can be considered fair use, thus the complainant’s request for transfer was rejected. However, most other decisions regarding anti-sites or critique sites did not acknowledge them as fair use, which is a very different trend from that in other kinds of disputes where anti sites and critique sites are easily considered fair use. For the purpose of the third element, the following circumstances are considered evidence of the registration and use of a domain name in bad faith: (1) circumstance indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (2) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (3) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (4) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location. 10 In the most proceedings, proving the third element of bad faith, especially whether the registrant registered and used the domain name for the purpose of selling, is in dispute. Most UDRP decisions tend to apply the bad faith principle liberally, accepting the complainants’ claims of the respondents’ bad faith very easily. Where there was an offer to sell the domain name from the respondent, the panel is most likely to decide that the bad faith of the respondent is proven. If the offer came from the complainant, not from the respondent, if the respondent responded to the offer by some kind of negotiations, 9 WIPO D2000-0204. 10 Policy 4. b.

Authors: Woo, Jisuk.
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14
from a person, Mr. Katz, who was known by a nickname Penguin.
9
It was acknowledge
that Mr. Katz holds rights and legitimate interests in the name penguin. However, the
UDRP decisions seem to be inconsistent regarding whether noncommercial or fair use
of a domain name should be acknowledged. In a proceeding regarding
www.walmartsucks.com
, the site was noncommercial as it was operated for unsatisfied
customers of the Wal-Mart stores, but the decision was made for the transfer of the
domain name to Wal-Mart Stores, Inc. On the other hand, in a proceeding regarding
www.scientologies.org, it was decided that the use of the domain name for a critique
site can be considered fair use, thus the complainant’s request for transfer was rejected.
However, most other decisions regarding anti-sites or critique sites did not acknowledge
them as fair use, which is a very different trend from that in other kinds of disputes
where anti sites and critique sites are easily considered fair use.
For the purpose of the third element, the following circumstances are
considered evidence of the registration and use of a domain name in bad faith: (1)
circumstance indicating that you have registered or you have acquired the domain name
primarily for the purpose of selling, renting, or otherwise transferring the domain name
registration to the complainant who is the owner of the trademark or service mark or to
a competitor of that complainant, for valuable consideration in excess of your
documented out-of-pocket costs directly related to the domain name; or (2) you have
registered the domain name in order to prevent the owner of the trademark or service
mark from reflecting the mark in a corresponding domain name, provided that you have
engaged in a pattern of such conduct; or (3) you have registered the domain name
primarily for the purpose of disrupting the business of a competitor; or (4) by using the
domain name, you have intentionally attempted to attract, for commercial gain, Internet
users to your web site or other on-line location, by creating a likelihood of confusion
with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of
your web site or location or of a product or service on your web site or location.
10
In
the most proceedings, proving the third element of bad faith, especially whether the
registrant registered and used the domain name for the purpose of selling, is in dispute.
Most UDRP decisions tend to apply the bad faith principle liberally, accepting the
complainants’ claims of the respondents’ bad faith very easily. Where there was an offer
to sell the domain name from the respondent, the panel is most likely to decide that the
bad faith of the respondent is proven. If the offer came from the complainant, not from
the respondent, if the respondent responded to the offer by some kind of negotiations,
9
WIPO D2000-0204.
10
Policy 4. b.


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