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A number of recent UDRP decisions remind trademark owners (and counsel) that cybersquatting cases have to be built from the ground up. Each stage has its evidentiary demands. The first two demand either/or proof; the third, the most demanding, requires proof of unified or conjunctive bad faith registration and bad faith use of the accused domain name. Priority, which intuitively would be thought a factor under the first stage (as it is under the ACPA) is actually a factor under the third stage. more
There are three kinds of UDRP disputes, those that are out-and-out cybersquatting, those that are truly contested, and those that are flat-out overreaching by trademark owners. In the first group are the plain vanilla disputes; sometimes identical with new tlds extensions (mckinsey.careers> and <legogames.online>); sometimes typosquatting (<joneslang lassale.com> and <wiikipedia.org>); and other times registering dominant terms of trademarks plus a qualifier (<pleinphilipp-shop.com> and <legostarwars2015.com>). more
Panels adjudicating cybersquatting claims, defenses, and rebuttals under the Uniform Domain Name Dispute Resolution Policy (UDRP) expect parties to prove their contentions, and this means having a working understanding of what this entails. There is, first, a set of fundamental rules or principles -- such as pending applications for a mark do not constitute a right, or recognizing unregistered marks as constituting rights... more
The integrity of any legal system depends on the quality of mind of those appointed to administer it. There are expectations that the one judging the facts and applying the law knows what the facts are and what law to apply. Panels appointed to adjudicate disputes under the Uniform Domain Name Dispute Resolution Policy (UDRP) are not held to any lower standard than the judges of courts of competent jurisdiction. more
In addition to being rarely invoked, the Uniform Rapid Suspension System (URS), when utilized, is providing trademark owners and domain name registrants with little guidance about this domain name dispute policy. URS determinations typically offer no insight into the reasons behind an expert's decision, regardless of whether the determination was in favor of the trademark owner (to temporarily suspend the disputed domain name) or the domain name registrant (to allow the registrant to retain the domain name without interruption). more
While the U.S. Environmental Protection Agency (EPA) has been making news as the result of controversial changes brought about under the new Trump administration -- including the planned removal of "several agency websites containing detailed climate data and scientific information" -- the EPA also has generated some (lesser-known) domain name news: The agency won a decision under the Uniform Domain Name Dispute Resolution Policy (UDRP) for the domain name noattacks.org. more
An increasing number of domain name disputes are being conducted in languages other than English, a trend that presents a new challenge for some trademark owners. In 2015, 85.77% of all domain names disputes at the World Intellectual Property Organization (WIPO) were conducted in English - down from an all-time average of 88.01% and a record high (in 2000) of 99.84% (disregarding 1999, the first year of the UDRP, because only one case was filed - in English -- that year). more
Even though ICANN is moving full steam ahead with the New gTLD Program, many of the program's specifics are still being finalized. Many important questions related to the Trademark Clearinghouse and the Uniform Rapid Suspension (URS) still remain unanswered at this point. However, ICANN has recently provided additional details around Application Reveal and Batching and selected the Independent Objector. more
Earlier this month, the Internet Corporation for Assigned Names and Numbers (ICANN) held its 51st public meeting in Los Angeles. Once again, MarkMonitor joined stakeholders from across the globe to discuss issues ranging from government control over the Internet, to key lessons learned thus far from the new gTLD rollout. This coming year promises to be a big one for ICANN, and for the business and brand community as a result. more
On July 25th ICANN announced the publication of the Draft Report of the Independent Review of the Trademark Clearinghouse (TMCH). This study was coordinated for ICANN by the Analysis Group, in conjunction with researchers from the Center for Internet and Society at Stanford as well the University of Pennsylvania's Wharton School... while public comments on the draft report will be accepted through September 3rd, this Report was triggered by GAC concerns expressed before the Applicant Guidebook for the new gTLD program was even completed, and is not the work product of a GNSO-created working group and therefore will not directly result in the establishment of any new ICANN policy. more
With just a little more than three months left in 2016, the number of domain name disputes filed at the World Intellectual Property Organization (WIPO) appears to be headed for a record year. According to public data published on the WIPO website, the current number of domain name disputes filed this year (as of this writing, September 27, 2016) is 2,228 - which would indicate that the total might reach 3,011 cases by December 31. more
Today's new U.S. Senate letter to ICANN - the latest in a series of letters on the work of the ICANN technical communities - is disturbingly well crafted. If taken at face value, it even seems to lend credence to the idea that ICANN is potentially a perpetuator of the limiting of free speech, and it could be seen as a break in the narrative that i2Coalition perpetuates, that the IANA transition is a positive step in strengthening multistakeholderism over dangerous multilateralism when it comes to Internet governance. more
UDRP complainants are expected to get it right the first time, and if they don't there's a narrow window for a second filing. Evidence previously available but overlooked will not support a new complaint, although this does not preclude the possibility of one being accepted on evidence of new facts. In Haru Holding Corporation v. Michael Gleissner / NextEngine Ventures LLC the Panel concluded that the time between registration of the domain name and the filing of the complaint was too short for bad faith use... more
The UDRP lists three nonexclusive circumstances for rebutting lack of rights or legitimate interests in domain names, which if successful also concludes the issue of abusive registration in respondent's favor. The third circumstance is "you are making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue." more
There are no gatekeepers to prevent registrants from acquiring domain names incorporating marks that potentially violate third-party rights. Anyone anywhere can acquire domain names composed of words and letters in languages not its own through a registrar whose registration agreement is in the language of the registrant. For example, a Chinese registrant of a domain name incorporating a Norwegian mark as in <statoil.store> in which Complainant requests the proceeding be in English notes that Chinese is not an official language in Norway. more
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