The case I’m reporting on today has garnered attention from a number of quarters. One commentator, Andrew Allemann tells us that “[he’s] struggling with this UDRP decision” and Nat Cohen of Telepathy Inc. in a couple of Tweets and a private conversation is concerned that the holding could be a Trojan Horse by erasing the distinction between merely confusing and confusingly similar. The problem centers on the Panel’s holding that everyfamily.org is confusingly similar to EVERYTOWN when they appear to be only confusing. Everytown for Gun Safety Action Fund, Inc. v. IGI NA / IGI NA CORP, FA200500 1897076 (Forum June 23, 2020).

The Panel finds that “Complainant’s EVERYTOWN mark as [does] the Domain Name incorporates a dominant portion of the mark, EVERY, along with the descriptive term ‘family’ (which is a term associated with Complainant’s activism).” He finds support for “confusing similarity” in two places, first WIPO’s Jurisprudential Overview 3.0 and the Respondent’s bad faith use of the domain name. The Jurisprudential Overview states section 1.15: “In some instances, panels have ... taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the Respondent seeks to target a trademark through the disputed domain name.”

Determining the standing requirement by focusing on the bad faith element is ordinarily and, in most instances, frowned upon. Here, the Panel finds the Respondent is using the domain name in bad faith, and this settles the matter of confusing similarity in Complainant’s favor. From bad faith use he infers bad faith registration:

In the present case, by reason of the facts outlined under the elements below, it is clear that Respondent has sought to target and indeed pass itself off as Complainant through the use of the Domain Name. The Panel finds that Respondent’s intention to mislead Internet users into thinking it is Complainant or connected with Complainant confirms the confusingly similar nature of the Domain Name.

Given the use of the website for deceiving consumers by collecting money from them by pretending to be Complainant, there is no doubt that Respondent is a fraudster. But, and this is the point of concern: the Panel is reaching the outcome he wants but at the expense of short-circuiting the requirement for a finding that the domain name is “confusingly similar” rather than simply similar in sharing a dictionary word, albeit dominant in the phrase.

As a suggestion for dealing with this kind of outcome, it is useful to draw a distinction between “cybersquatting” and “abusive registration.” Cybersquatting can be equated to “squatting” in real property as “one who settles on land without a right or title” whereas abusive registration carries a further connotation of mischief. Drawing such a distinction between the two concepts helps explain the correctness of the decision. The UDRP, of course, is crafted to combat cybersquatting. WIPO preferred the epithet “abusive registration” over cybersquatting, but there is it seems to me a subtle difference. The only rationale for peeking ahead to the third element is to see whether the Respondent is using the domain name in bad faith and if it is, justifying the determination that the similarity is confusing, which satisfies the standing requirement. The standing requirement has always been low bar.