WIPO has published an extremely useful tool for anyone involved in a domain name dispute that is considering arbitration (or is forced to defend). WIPO has posted a list of common questions in disputes and how the panels generally interpret those questions. The site also includes relevant cases for each of those questions. See the site here.
Among the questions:
1.5 Can a complainant show rights in a geographical term or identifier?
Consensus view: The report of the Second WIPO Internet Domain Name Process declined to specifically extend protection to geographical terms under the UDRP. Some geographical terms however, can be protected under the UDRP, if the complainant has shown that it has rights in the term and that the term is being used as a trademark. Normally this would require the registration of the geographical term as a trademark.
2.2 Does a respondent automatically have a legitimate interest in a domain name comprised of a generic (dictionary) word(s)?
Consensus view: If the complainant makes a prima facie case that the respondent has no rights or legitimate interests, and the respondent fails to show one of the four circumstances under Paragraph 4(b) of the Rules, then the respondent may lack a legitimate interest in the domain name, even if it is a domain name comprised of a generic word(s). Factors a panel should look for when determining legitimate use would include the status and fame of the mark, whether the respondent has registered other generic names, and what the domain name is used for (a respondent is likely to have a right if it uses
3.1 Can bad faith be found if the disputed domain name was registered before the trademark was registered/common law trademark rights were acquired?
Consensus view: Normally speaking, when a domain name is registered before a trademark right is established, the registration of the domain name was not in bad faith because the registrant could not have contemplated the complainant’s non-existent right.
3.2 Can there be use in bad faith when the domain name is not actively used and the domain name holder has taken no active steps to sell the domain name or contact the trademark holder? (Passive holding)
Consensus view: The lack of active use of the domain name does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether respondent is acting in bad faith. Examples of circumstances that can indicate bad faith include complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa.
3.6 Can statements made in settlement discussions be relevant to showing bad faith?
Consensus view: Evidence of offers to sell the domain name in settlement discussions is admissible under the UDRP, and is often used to show bad faith. This is because many cybersquatters often wait until a trademark owner launches a complaint before asking for payment and because panels are competent to decide whether settlement discussions represent a good faith effort to compromise or a bad faith effort to extort. Also the legal criteria for showing bad faith directly specifies that an offer for sale can be evidence of bad faith.
4.6 Does the failure of the respondent to respond to the complaint (respondent default) automatically result in the complainant being granted the requested remedy?
Consensus view: The respondent’s default does not automatically result in a decision in favor of the complainant. Subject to the principles described in 2.1 above with regard to the second UDRP element, the complainant must establish each of the three elements required by paragraph 4(a) of the UDRP. While a panel may draw negative inferences from the respondent’s default, paragraph 4 of the UDRP requires the complainant to support its assertions with actual evidence in order to succeed in a UDRP proceeding.