).” I underscore “relied on” because that captures the essence of how the law develops. Earlier decisions, as they are tested for their acuity and good sense, become the foundation of the jurisprudence. It is obvious that the majority’s “crew” analysis did not have the support of other panelists, and its “speculator” view became a dead end.

For parties, consistency and predictability are an essential virtue of a judicial proceeding. No one wants to be surprised. This goes for routine disputes as well as others involving more complex facts. Cases involving dictionary words, common phrases, arbitrary letters that could be acronyms, and cultural expressions like “down pat”—iCommand Ltd v. Johnny Gray, ArtWired, Inc., D2020-1438 (WIPO August 11, 2020)—constitute a very small percentage of cybersquatting disputes, but because these domain names are generally held by investors (speculators to some!) in the business of acquiring and reselling domain names they present a telling commentary on how the perception should be framed.

Approximately ninety-two percent of complaints are against domain name holders who have no defense to their registrations and rarely appear to defend their choices, so it is not surprising that there would be a general perception among those impacted that all registrants accused are cybersquatters. The high percentage, no doubt, contributes to a myopic perception. But whatever the perception may be, when it comes to asserting a claim, the outcome is on the merits. Respondent does not have to prove good faith; the complainant has to prove bad faith.

In a recent online interview, I was presented with a series of questions. One of them seemed to suggest an equation between cybersquatters and investors: “Many domain investors think taking a risk on a clearly infringing domain is no big deal. Some have made jokes, others have talked about earning parking revenue until they get a UDRP.” My response: “The question must be rephrased to read ‘many domain cybersquatters’ may think it not a ‘big deal.’ Cybersquatters can take the ‘no big deal’ position because the worst remedy under the UDRP is losing the domain name. That’s why they could care less.” This, too, obviously fuels brand owners’ perception of domain name registrants, but there is no equation between cybersquatters and investors.

Indeed, the point about lawful registration and use is emphasized with great clarity in the Concurrence in iCommand:

Complainant takes exception to the fact that the Domain Name is for sale at what is, in its opinion, a “highly inflated” price. This again is not a ground of bad faith and in any event, whether the price demanded by a seller of any commodity is excessive is, like beauty, in the eye of the beholder.

When we talk about perception, then, we mean a first reception of the matter by those not specifically knowledgeable about the facts and the law or biased to a view regardless of the facts and the law. It is a sort of “first impression.” When we look closely at cases like DSPA and iCommand we see panelists reflecting on the merits of a complaint. In fact, this even-handed approach is reflected in the WIPO Overview:

Panels have recognized that merely registering a domain name comprised of a dictionary word or phrase does not by itself automatically confer rights or legitimate interests on the respondent; panels have held that mere arguments that a domain name corresponds to a dictionary term/phrase will not necessarily suffice.

Further,

Over the course of many UDRP cases, panels have acknowledged further grounds which, while not codified in the UDRP as such, would establish respondent rights or legitimate interests in a domain name. For example, generally speaking, panels have accepted that aggregating and holding domain names (usually for resale) consisting of acronyms, dictionary words, or common phrases can be bona fide and is not per se illegitimate under the UDRP.

Whether the registration is lawful or unlawful depends on the domain registrant’s intention as that is disclosed directly or inferentially by the evidence. Two cases can be offered to illustrate the point. In Mr. Gildo Pallanca-Pastor v. Tech Admin, Virtual Point Inc., D2020-1698 (WIPO August 20, 2020) (

the challenged domain name is a coined word which has attracted several businesses to use it in commerce—“[s]ome are using the term as a business name and others as a product name”—before respondent acquired it in a registrar’s auction. Citing earlier cases (as we saw in the Berryhill comment), the Panel noted that “[i]n the context of domainers, panels have generally assessed the issue of registration in bad faith objectively” (emphasis added).

In the second case, Insider, Inc. v. DNS Admin / Contact Privacy Service, FA1912001874834 (Forum February 3, 2020), the phrase in dispute is “business insider.” At first glance, this may seem like a lawful registration of a common phrase, but the evidence did not support this. Panel noted that “where it is found . . . that a respondent’s modus operandi can be summarized as registration of a domain name that is confusingly similar to the mark of another followed by exploitation of the domain name for profit while awaiting its eventual sale, the ‘reseller’ label will not serve to avoid a finding of bad faith in the registration and use of the domain name.”

These cases and the WIPO Overview contradict interest-based determinations: “investing in genuinely generic terms, for purpose of resale, [that would constitute] . . . a legitimate business . . . [then a respondent’s] acquisition of domain names consisting of common, dictionary terms for resale can confer rights and legitimate interests upon entrepreneurs who engage in this activity.” Platterz Inc. v. Andrew Melcher, FA 1729887 (Forum June 19, 2017). The more difficult issue and more difficult to assess is some panelists’ tendency in the guise of “objectivity” overstepping their roles by improperly ruling on issues that properly belong in a court of competent jurisdiction.