Lacking rights or legitimate interests in a disputed domain name is not determinative that a respondent registered or is using the domain name in bad faith. It would be a fundamental misunderstanding to conflate lack of rights or legitimate interests with bad faith. “Bad faith is not proven by showing that Respondent lacks any rights to or legitimate interests in the Domain Name,” Document Technologies, Inc. v. International Electronic Communications, Inc., D2000-0270 (WIPO June 6, 2000), although lacking either may be a factor in finding bad faith. The facts will often be common to both requirements,” FabJob Inc. v. Compana LLC, D2006-0610 (WIPO August 16, 2006). The Policy “separates the requirements in Paragraph 4(a) into three distinct elements, and provides separate examples (Paragraphs 4(b) and 4(c)) of how to satisfy the second and third factors,” Document Technologies.
The Respondent in EURO DATA GmbH & Co. KG v. Excel Signs, D2009-0465 (WIPO May 5, 2009) (<eurodata.com>) “did not show any of the circumstances mentioned in paragraph 4(c) of the Policy, but rather claimed that it is not illegal to offer a domain name for sale or to connect the Domain Name to a commercial parking site.” These are legitimate business models “but [they] do not create a right for the Respondent in the Domain Name, nor do they explain why the Respondent would have a legitimate interest in the Domain Name as a result thereof.” A domain name composed of generic terms “euro” plus “data” “being widely used and hardly distinctive does not per se create a right or legitimate interest of the Respondent either.”
However, the question of bad faith hinges on other factors, foremost that in registering the domain name the Respondent had knowledge of the Complainant and intended “to profit from or harm [its] trademarks.” The Complainant argued that offering the domain name for sale was determinative. The Panel noted that while it
appreciates that offering a domain name for sale to the general public may in some cases constitute proof of bad faith, [it] generally only [applies] if the Complaint shows some form of additional “wrongdoing” or mala fide intent on the part of Respondent, such as knowledge of the trademarks of the Complainant, or evidence of the Respondent habitually selling domain names which incorporate third parties’ trademarks. The Respondent does not appear to have had findings of abusive registration practices made against it in previous WIPO UDRP decisions.
The only response to “the Respondent should have known” is How? There is no short cut to proving a contention:
The Complainant ... failed to show how exactly the Respondent should have known, in view of the Respondent’s claim that the term “eurodata” is not very distinctive, fanciful or arbitrary as such, is widely used by many others than Complainant and that the Respondent is unfamiliar with the Complainant and its trademarks.
There also was no tell-tale linking to competitors to support the Complainant’s supposition of bad faith registration or use. It must demonstrate “how” with proof not argument, otherwise it fails to sustain its claim.
