Five UDRP decisions may signal a surprising trend. Following a position first espoused by M. Scott Donahey earlier this year, yet another UDRP panelist recently opined in WIPO Case No. D2009-1278, that “[t]here seems no reason in logic or in principle why the availability of redress [under the UDRP] should be limited to situations where bad faith is present at the time of acquisition of the domain name.” Of course, for most of the past decade, the basis for that position was the UDRP, itself, which by its plain language requires some showing of “registration and use in bad faith” – in contrast to United States federal trademark laws that only require evidence of bad faith use, like the Anti-Cybersquatting Protection Act (ACPA). In view of these recent decisions, it may be more likely for a registrant to be found to violate the UDRP based on a subsequent use (or non-use) of a domain name, even where the complainant does not allege that the domain name was actually registered in bad faith.

Tags: domain name policy, UDRP, WIPO