Inconsistency in UDRP decisions.
Officially, UDRP stands for Uniform Domain-Name Dispute-Resolution Policy. But sometimes it seems it should be called various-form, or not-uniform. How arbitrators decide cases can be a crap shoot.
Here’s a recent example: ChinaDiesel.com. The complainant lost the case. But what’s interesting is how the arbitrator approached the first requirement of UDRP:
“the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights”
Most arbitration panels will find in favor of the complainant for this aspect if they have a trademark in the term, regardless of whether it was obtained before or after the domain registration. In the case it was obtained after the domain was registered, that is handled under the third element of the policy: that the domain was registered and used in bad faith. After all, it’s hard to prove someone registered a domain with the trademark in mind if he registered it prior to the trademark being created (unless, as some panels have decided, the respondent is psychic).
But in ChinaDiesel.com, the arbitrator said the complainant’s trademark for China Diesel was obtained after the domain was registered, so the complainant failed to prove the first aspect of the policy.
Another frequent inconsistency is whether or not domain parking is a bona fide use of a domain. Panels go either way on this, and it seems to depend on whether or not the rest of the case is going for or against the respondent. If everything is pointing in the respondent’s favor, the panel will usually say that a parked domain is a legitimate use of a domain. If it’s going against the respondent, the panel will rule that a parked domain is not a legitimate use.
Michael Berkens noted another inconsistency the other day, where a panel found that offering to sell a domain wasn’t proof of bad faith. Of course, offering a domain for sale doesn’t have to be proof of bad faith registration, but you’ll see this go both ways, too.