What elements are you required to show in a UDRP complaint to win?

There are three requirements under ICANN's UDRP

. First, a complainant must show that the respondent's domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. A trademark can either be registered or unregistered. Obviously, registered trademarks are the easiest to establish - typically the trademark owner has a filing with a national government to show evidence of the registration, since the date is important. If the mark is unregistered, then you have some more work to do. Your attorney (and in this case, you really should consult with one) will need to show evidence of your mark being in use in commerce. Again, the dates are important. For identicality or confusing similarity, there is a well developed body of guidance (UDRP panel decisions are, by definition, not "precedent" - although panels typically treat them just like caselaw) to assist your attorney with establishing this point.

Second, a complainant must show that the respondent has no rights or legitimate interests in the domain name. Third, that the domain name was registered and used in bad faith. These two are more or less entwined - but they are treated as separate elements. A complaint will fail if the respondent has any right whatsoever in the domain name, for example, if it was registered before the trademark owner started business using the name or registered the mark; or if the domain name is being used in good faith, for example, if it qualifies as "fair use" or noncommercial use. Just having a landing page with sponsored ads - a common tactic by squatters and legitimate domainers alike - is not likely to avoid a finding of bad faith.

As you can see, there is a lot of room to argue around these points. And this is why it's a good idea to consult with an attorney to help you evaluate your strategy and develop your complaint. And, if you're a respondent, it's also a good idea to consult with an attorney to help you poke holes in the other side's argument.

What elements are you required to show in a UDRP complaint to win?

By: Bret Moore

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