lawyerz, help settle a debate...

[draqon]

In this hypothetical scenario, Bob owns the domain Cubs.com. On the Cubs.com website, he has two frames. One frame is PPC links - which were selected by the PPC program and not by him - which sell merchandise related to baseball and the team Cubs. The other frame is simply text, which explains that he really likes bear cubs cuz they are so cute, and he states that he plans to write stories about watching bear cubs through his binnoculars.

He thinks he could survive a UDRP of his domain for two reasons:
1) past UDRP precedent is such that content that is chosen by third parties, such as PPC organizations, can not be used as evidence of bad faith on the part of a respondent as it was not chosen intentionally by him.
2) His text regarding his love of bears, when combined with his stated intention to use the domain to feature stories about bears, is prima facie evidence of good faith usage.

In a perfect world, where panelists were engaged in the objective and purely logical application of the principles of the UDRP, would Bob win or lose the UDRP?

[Acro]

In true Solomon fashion, the UDRP panelists should split the offending frame from the non-offending one :-D If Bob wants to continue to own it then he should keep the cuddly cubs separate from ads about the football team.

[jberryhill]

In a perfect world, Bob wins. In this world, Bob may have trouble.

There are mixed results on your proposition #1 - see eaa.com, where the registrant won, and flamingo.com, where the registrant lost, and the key issue is the one you state here. However, the "bad faith" criterion is an element of specific intent. The question is "Did this person register and use the domain name for a predatory purpose relative to this complainant's trademark?" These discussions always start with things like the "Bob owns the domain Cubs.com", as if domain names are registered by some sort of inscrutable fate, rather than conscious intention. The stork delivers babies, not domain names, so we have to go to "Why does Bob own Cubs.com?". The outcome in this world generally revolves around the credibility of Bob's answer, and how that answer is supported by concrete evidence.

Another thing to look at is "What did Bob do when he found out there were TM-relevant links being provided by the PPC engine?" Once he knows there is reason for concern, he might be motivated to take corrective action demonstrating his intent. Waiting until a dispute is filed is probably not the best timing on that point.

Finally, on the point of Bob's credibility, it is not going to bode well for Bob if he has five prior UDRP losses and a dozen typos of famous trademarks.

[mkx]

Well said. For the last note though, is there away UDRP can check all the domains registered by a single person to look for trademarked names when making their decision?

[jberryhill]

UDRP disputes are determined on the basis of information submitted by the complainant and the respondent. While some panelists will look into the information on their own, quite a few panelists adopt the position that, as adjudicators they should not be investigators.