The World Intellectual Property Organisation has published an overview of trends in its 7,000 domain name dispute decisions since 1999. It is, in effect, a free online case book about cybersquatting that can help parties to gauge their chances before action.
All decisions under the Uniform Domain Name Dispute Resolution Policy (UDRP) – the guidelines for deciding most .com, .net and .org domain name disputes – have been available online for the past six years. But this is the first time that WIPO has compiled comprehensive guidance on how its panellists have interpreted the UDRP.
The research considers common and important substantive and procedural questions that have been extracted from the cases through February 2005.
For example, to convince a WIPO panellist that someone is cybersquatting on your brand, you need to show that the disputed domain name is identical or confusingly similar to your trade mark. If someone registers a "sucks" site – e.g. nikesucks.com – is that confusingly similar to Nike's trade mark?
The answer is generally yes, according to the research. The majority view is that: "A domain name consisting of a trade mark and a negative term is confusingly similar to the complainant’s mark." A brief explanation follows: it may be, for example, that the non-fluent English speakers would not recognise the negative connotations of "sucks."
This does not mean that all "sucks" complaints will succeed. Under the UDRP, a complainant must also show that the respondent does not have a right or legitimate interest in the domain name; and that the respondent registered and used the domain name in bad faith.
With an FAQ approach, the 26 questions include, for example, can a reseller have a right or a legitimate interest in the disputed domain name?; and what is the role of a disclaimer on the web page of a disputed domain name?
"By offering a concise overview of UDRP decision trends, this new tool will further enhance the consistency and reasoning of decisions taken under the UDRP and will help parties to better assess their chances under the UDRP," said Francis Gurry, WIPO's Deputy Director General, who oversees the work of WIPO’s Arbitration and Mediation Center.
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