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ADORAIntellectual Property

What counts as bad faith under the UDRP?

A UDRP complaint fails unless bad faith is proved at both registration and use, since paragraph 4(b) requires both, not either. Timing is what defeats most otherwise strong complaints: a domain registered before your trademark existed cannot have targeted a mark that did not yet exist, however badly the registrant behaves now.

The four examples in paragraph 4(b)

The UDRP lists four circumstances that evidence bad faith. The list is not exhaustive and panels regularly find bad faith outside it.

  1. Registering primarily to sell. The registrant acquired the domain mainly to sell it to you or a competitor for more than their documented out-of-pocket costs. A price demand well above registration cost is the clearest evidence there is.
  2. A pattern of blocking registrations. The registrant has registered domains matching other people's trademarks to stop those owners reflecting their marks. A portfolio of brand-matching domains establishes this quickly.
  3. Disrupting a competitor. The registrant is a competitor and registered the domain primarily to damage your business.
  4. Confusion for commercial gain. The registrant uses the domain to draw people to a site by creating a likelihood of confusion with your mark. Parking pages carrying pay-per-click ads fall here, including where a third-party service generates the ads automatically.

Why timing decides most cases

Bad faith registration is judged at the moment of registration. If your trademark rights did not exist then, the registrant cannot have been targeting them.

A domain registered in 2015, when your company was founded in 2021, is almost never a UDRP case, however unpleasantly the registrant is behaving now. Narrow exceptions exist where a registrant clearly anticipated a filing, an insider registering the day before a launch for example, but they are rare and need real evidence.

Both sides of the rule appear in published decisions. In Wirecard AG v. Telepathy Inc., Development ServicesD2015-0703 WIPO decision, 2015, boon.com was registered in October 1998 and Wirecard filed its BOON EU trade mark in April 2014. The complaint failed and the panel found reverse domain name hijacking. In Khloe KardashianD2015-1113 WIPO decision, 2015, khloekardashian.com was registered two weeks after her television debut in October 2007, years before any trademark registration, and it was transferred.

Check the WHOIS creation date before anything else. If it predates your first use of the mark, the complaint probably fails.

Does a domain that does nothing count as bad faith use?

Yes, in the right circumstances. The doctrine comes from Telstra Corporation Limited v. Nuclear MarshmallowsD2000-0003 WIPO decision, 2000 and is usually called passive holding.

Panels weigh the reputation of the mark, whether the registrant hid their identity, whether they gave false contact details, whether they responded at all, and whether any plausible good faith use of the domain exists. A well-known mark held silently by an anonymous registrant behind a privacy service can amount to bad faith use even with no website.

A short generic string held quietly by an identifiable person generally does not. Allianz SE v. IP Legal, Allianz Bank LimitedD2017-0287 WIPO decision, 2017 applied the same test in 2017: allianzkenya.com showed only "Website Under Construction" and the registrant had named a company that does not exist.

Evidence that helps

  • WHOIS history showing the creation date and any change of registrant
  • Screenshots of the site as it is now, dated, plus Archive.org captures of what it showed before
  • Any correspondence containing a price demand
  • A list of other brand-matching domains held by the same registrant or email address
  • Evidence of mail sent from addresses at the domain, particularly anything impersonating you
  • Proof of your trademark rights and the date they began

Capture all of it before contacting the registrant. Sites change once a complaint is anticipated.

Email evidence can carry a case on its own. accenturejobs.com had no website, and it was transferred in AccentureD2016-0367 WIPO decision, 2016 because it was used for a fake recruiting address.

Evidence that does not help

That the registrant will not sell at a price you consider fair. That you want the domain. That the registrant is unresponsive or rude. That the domain matches your company name, without a trademark behind it.

None of these establishes bad faith, and a complaint built on them risks a finding of reverse domain name hijacking against you.

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