You violated someone’s rights when you registered the domain, even if it wasn’t our rights.
Think you’ve seen them all?
Here’s a very creative argument from Stabilus GmbH, maker of electronic tailgate openers, on why a UDRP panel should give it the domain powerise.com.
Stabilus started using the “Powerise” term in commerce back in 2008. But the domain was been registered in 2002.
Under the guidelines of UDRP, the registrant couldn’t have registered the domain in bad faith since Stabilus didn’t have rights in the mark at the time of registration.
Hence this creativity:
The Complainant also indicates that other companies are using “Powerise” as name and trademark, such as the company Babcock Borsig (owning the trademark POWERISE POWERPLANT), and Powerise Consult, which, according to the Complainant’s verifications, would have been using the mark since 1998/99 and 2001, respectively. The Complainant contends that, therefore, the Respondent must have applied the disputed domain name on January 21, 2002 with knowledge of third parties’ rights in the name. The Complainant also states that the Respondent’s bad faith when it registered the disputed domain name must lead to a right for the transfer of it to the Complainant, even though the Complainant’s trademark registrations are more recent than the Respondent’s registration of the disputed domain name.
In other words, when you registered the domain someone else had trademark rights in the term. You registered in bad faith on someone else’s rights, so you should transfer the domain to us.
In one blow Stabilus shows that its rights in Powerise aren’t all encompassing and makes a really dumb bad faith argument.
Needless to say, Stabilus GmbH lost.
The first appearance of that argument was in Do The Hustle, LLC v. Monkey Media, LLC, WIPO Case No. D2000-0625, wherein the domain name was based on “Culture Club” and the complainant was running a chain of nightclubs under that name. The respondent said he registered the domain name because he liked the band, and the panel agreed that it might be cybersquatting but, if so, it was against the band.
There is at least one panelist who agrees with the position that some kind of “free form cybersquatting” is sufficient. In First American Funds, Inc. v. Ult.Search, Inc, WIPO Case No. D2000-1840, the majority pointed out that “First American” was used by a number of entities, and there was no proof of cybersquatting against the complainant. Dissenting, Scott Donahey essentially argued that since there were so many different parties which used it as a trademark, then the panel should award it to the one who complained. I never really understood the point he was trying to make there.
…and, yes, you are going to see the same argument being made by a complainant in the upcoming decision on Elk.com.
WHAT DOES IT MEAN ??
THAT MEANS A DOMAIN NAME IS A CAPITAL AN ASSET, THAT MEANS FIRST ARRIVED FIRST SERVED
DOMaINING IS THE SAME AS FINANCE !!
The whole world has gone stark raving mad over trademarks, intellectual property etc etc etc. I’m actually thinking about taking Apple.com to court because I used to drink apple juice as a baby long before they registered their trademark. Also, I might take Microsoft to court too for using Windows because my great grandmonther had windows on here house long before they used the term.
If its a GENERIC word from any specific language, NOBODY should be allowed to claim trademark rights over it. This is common sense as far as I am concerned.
Richard a single word domain name mustn
Heh, just depends on context.
This is not new at all. The UDRP providers have created this thing involving a “pattern” that does not actually appear in the UDRP. See http://www.wipo.int/amc/en/domains/search/overview2.0/index.html#33
“A pattern of conduct can involve multiple UDRP cases with similar fact situations …” This is saying that a domain owner violated someone else’s trademark rights not related to the complainant and that it is somehow used as evendence in the current (unrelated) complaint.
the UDRP states:
“you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct;”
“The owner of THE trademark …” THE trademark is the trademark that is at issue in a complaint, not some other trademark owned by somone else not related to the complainant and for which the complainant has no standing in any dispute.