Sole Panelist, Tony Willoughby, gives a well-thought-out explanation of what constitutes bad faith by a COMPLAIANT in the case of IUNO Advokatpartnerselskab v. Angela Croom, found at http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2011-0806.
In this case, the domain was registered 11 years before the Complainant obtained its trademark. The Panelist stated, “If after considering the submissions the Panel finds that the Complaint was brought in bad faith, for example in an attempt at reverse domain name hijacking or was brought primarily to harass the domain name holder, the Panel shall declare in its Decision that the Complaint was brought in bad faith and constitutes an abuse of the Administrative Proceeding.”
Consensus view: Generally speaking, although a trademark can form a basis for a UDRP action under the first element irrespective of its date, when a domain name is registered by the respondent before the complainant’s relied-upon trademark right is shown to have been first established (whether on a registered or unregistered basis), the registration of the domain name would not have been in bad faith because the registrant could not have contemplated the complainant’s then non-existent right.
The Complainant appears to have taken the view that registering a domain name for the purpose of selling it is of itself in some way reprehensible, when of course it is not (at least absent an intent to sell the owner of an identical or confusingly similar trademark, or a competitor thereof). There is a lawful trade in domain names running into millions of dollars per annum. If the Panel has understood the Complainant’s evidence correctly, it appears that when the Complainant attempted to purchase the Domain Name online, the price demanded for the Domain Name increased from about USD 10,000 to USD 50,000. No doubt, when the Complainant disclosed its identity, the Respondent appreciated that a higher sum could be demanded of an entity having a name identical to the Domain Name. Whatever the reason, there is nothing to demonstrate that this is behaviour meriting a finding of bad faith under the Policy. Pricing a domain name at the highest level the registrant believes it can encourage a purchaser to pay is not of itself objectionable absent evidence of targeting a particular trademark owner.
The Complainant also appears to have believed that non-use of a domain name or connection of a domain name to a parking page is of itself an indication of bad faith registration and use, which is not the case. Even if the Panel were to subscribe to the view held by a few panelists that bad faith use can in certain circumstances lead to a finding of bad faith registration and use notwithstanding an original good faith registration, in this case there is absolutely no evidence of any bad faith of any kind at any time on the part of the Respondent.
The Domain Name was not registered in bad faith and is not being used in bad faith.
This case should be earmarked by all Domainers who are faced with a UDRP that shoud not have been filed.
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