域名持有人的权利或合法权益 - 孙磊的XX

域名持有人的权利或合法权益

域名持有人的权利或合法权益(rights or legitimate interests)是域名仲裁依据的第二个要素,如果投诉人提出了域名持有人缺乏权利或合法权益的初步证据,则需要域名持有人举证反驳,如未能提供相关证据,则视为域名持有人无相应的权利或合法权益。

权利或合法权益的判定(2.1)

以下3个条件满足任何一个即表示域名持有人享有权利或合法权益:

  1. 在接到有关争议的任何通知之前,域名持有人正在使用或有证据表明准备使用该域名或与该域名对应的名称来用于提供商品或服务;
  2. 即使域名持有人未获得商标或服务标记,但域名持有人(作为个人、企业或其他组织)一直以该域名而广为人知;(一般就是域名跟个人或企业组织的名字相关)
  3. 域名持有人合法或合理使用该域名、不以营利为目的,不存在为商业利润而误导消费者或玷污引起争议之商标或服务标记之意图。

To demonstrate rights or legitimate interests in a domain name, non-exclusive respondent defenses under UDRP paragraph 4(c) include the following:

(i) before any notice of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

其中,首字母缩写词、单词或常用短语类型的域名即使被用来出售也可以是善意的。

generally speaking, panels have accepted that aggregating and holding domain names (usually for resale) consisting of acronyms, dictionary words, or common phrases can be bona fide and is not per se illegitimate under the UDRP.

可被采用的证明域名善意使用或准备使用的证据(2.2)

  1. 与业务相关的调查报告、法律建议或往来通信;
  2. 能够表明已花费资金用于网站开发或促销的证据 ,如广告或名片等;
  3. 真实的商业计划或迹象;
  4. 善意注册和使用相关域名;
  5. 其它的可能用于证明非恶意抢注的证据。

non-exhaustive examples of prior use, or demonstrable preparations to use the domain name, in connection with a bona fide offering of goods or services may include: (i) evidence of business formation-related due diligence/legal advice/correspondence, (ii) evidence of credible investment in website development or promotional materials such as advertising, letterhead, or business cards (iii) proof of a genuine (i.e., not pretextual) business plan utilizing the domain name, and credible signs of pursuit of the business plan, (iv) bona fide registration and use of related domain names, and (v) other evidence generally pointing to a lack of indicia of cybersquatting intent. While such indicia are assessed pragmatically in light of the case circumstances, clear contemporaneous evidence of bona fide pre-complaint preparations is required.

以上的大部分证据如制定商业计划等可能需要很长的时间,所以如果你想仲裁一个域名的话最好过一段时间,如域名注册或转让完成后半年甚至1年之后。

域名持有人与域名的相关性(2.3)

姓名(包括字母缩写组合)、艺名和昵称等。个人可以使用如身份证、护照等合法的证件;网站、博客或其它出版物。除此之外,企业也可以使用公司章程等作为证明。

Panels have addressed a range of cases involving claims that the domain name corresponds to the respondent’s actual given name (including in combination with initials), stage name, nickname, or other observed moniker.

For a respondent to demonstrate that it (as an individual, business, or other organization) has been commonly known by the domain name or a name corresponding to the domain name, it is not necessary for the respondent to have acquired corresponding trademark or service mark rights.

The respondent must however be “commonly known” (as opposed to merely incidentally being known) by the relevant moniker (e.g., a personal name, nickname, corporate identifier), apart from the domain name. Such rights, where legitimately held/obtained, would prima facie support a finding of rights or legitimate interests under the UDRP.

Insofar as a respondent’s being commonly known by a domain name would give rise to a legitimate interest under the Policy, panels will carefully consider whether a respondent’s claim to be commonly known by the domain name – independent of the domain name – is legitimate. Mere assertions that a respondent is commonly known by the domain name will not suffice; respondents are expected to produce concrete credible evidence.

Absent genuine trademark or service mark rights, evidence showing that a respondent is commonly known by the domain name may include: a birth certificate, driver’s license, or other government-issued ID; independent and sustained examples of secondary material such as websites or blogs, news articles, correspondence with independent third parties; sports or hobby club publications referring to the respondent being commonly known by the relevant name; bills/invoices; or articles of incorporation. Panels will additionally typically assess whether there is a general lack of other indicia of cybersquatting. In appropriate cases panels may refer to the respondent’s domain name-related track record more generally.

判定域名的合法合理使用的因素(2.5)

  1. 域名的内涵和外延(2.5.1):域名和商标是否有隐含的从属关系,不得模仿或暗示商标持有人赞助或背书。如添加一些表示地理位置的词组或域名后缀,“商标-usa.com”或“商标.nyc”;以及有互联网含义的词组,“e-商标.com”、“buy-商标.com”或“商标.online”

Generally speaking, UDRP panels have found that domain names identical to a complainant’s trademark carry a high risk of implied affiliation.

Even where a domain name consists of a trademark plus an additional term (at the second- or top-level), UDRP panels have largely held that such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner.

As described in more detail below and in sections 2.6 through section 2.8, UDRP panels have articulated a broad continuum of factors useful in assessing possible implied sponsorship or endorsement.

At one end, certain geographic terms (e.g., <trademark-usa.com>, or <trademark.nyc>), or terms with an “inherent Internet connotation” (e.g., <e-trademark.com>, <buy-trademark.com>, or <trademark.online>) are seen as tending to suggest sponsorship or endorsement by the trademark owner.

At the other extreme, certain critical terms (e.g., <trademarksucks.com>) tend to communicate, prima facie at least, that there is no such affiliation.

In between, certain additional terms within the trademark owner’s field of commerce or indicating services related to the brand, or which are not obviously critical (e.g., <okidataparts.com>, <nascartours.com>, <covancecampaign.com>, or <meissencollector.com>), may or may not by themselves trigger an inference of affiliation, and would normally require a further examination by the panel of the broader facts and circumstances of the case – particularly including the associated website content – to assess potential respondent rights or legitimate interests.

主要的判定点是“是否有从属关系”,按上面的英文解释,“FuckQQ.com”和“QQ.com”表面上是没有从属关系的。

  1. 域名的其它情形(2.5.2):是否使用合法且无商业利益;网站的访客是否由投诉人操控;等等。是否构成合法的合理使用,往往取决于相应的网站内容表面上是否支持所声称的目的。

To facilitate this assessment, panels have found the following factors illustrative: (i) whether the domain name has been registered and is being used for legitimate purposes and not as a pretext for commercial gain or other such purposes inhering to the respondent’s benefit, (ii) whether the respondent reasonably believes its use (whether referential, or for praise or criticism) to be truthful and well-founded, (iii) whether it is clear to Internet users visiting the respondent’s website that it is not operated by the complainant, (iv) whether the respondent has refrained from engaging in a pattern of registering domain names corresponding to marks held by the complainant or third parties, (v) where appropriate, whether a prominent link (including with explanatory text) is provided to the relevant trademark owner’s website, (vi) whether senders of email intended for the complainant but (because of user confusion) directed to the respondent are alerted that their message has been misdirected, (vii) whether there is an actual connection between the complainant’s trademark in the disputed domain name and the corresponding website content, and not to a competitor, or an entire industry, group, or individual, and (viii) whether the domain name registration and use by the respondent is consistent with a pattern of bona fide activity (whether online or offline).

  1. 商业活动(2.5.3):无商业行为并不一定代表合理合法使用。没有广告、PPC链接或不涉及域名持有人业务可以在一定程度证明域名持有人没有靠投诉人声誉获利的企图。在域名仲裁过程中,专家组倾向于关注域名持有人是否提交了答复和其答复的可信度、域名持有人是否提供了虚假信息或“网络航班(Cyberflight)*“以及域名持有人是否从事滥用商标的域名注册。

*“Cyberflight”是指域名持有人在收到仲裁后修改域名注册信息或注册商来避免或延迟仲裁的行为。

Similarly, a respondent’s use of a complainant’s mark to redirect users (e.g., to a competing site) would not support a claim to rights or legitimate interests.

While specific case factors have led panels to find that fair use need not always be categorically noncommercial in nature, unambiguous evidence that the site is not primarily intended for commercial gain, e.g., the absence of commercial or pay-per-click (PPC) links or references to a respondent’s business, would tend to indicate a lack of intent to unfairly profit from the complainant’s reputation.

Panels also tend to look at whether a response is filed (and the credibility thereof), whether the respondent provides false contact information or engages in cyberflight, and whether the respondent has engaged in a pattern of trademark-abusive domain name registrations.

关于批评类(criticism site)网站(2.6)

非商业类言论原则上支持域名持有人要求权利或合法权益的主张,但必须是真实且非商业性的,不得以此作为域名抢注、商业行为或败坏对方的借口。

但还是应该要尽量避免使用与投诉人商标相同的域名,如对方用“QQ.com”,你用“QQ.net”等其它后缀,存在较大风险。

UDRP jurisprudence recognizes that the use of a domain name for fair use such as noncommercial free speech, would in principle support a respondent’s claim to a legitimate interest under the Policy.

2.6.1 To support fair use under UDRP paragraph 4(c)(iii), the respondent’s criticism must be genuine and noncommercial; in a number of UDRP decisions where a respondent argues that its domain name is being used for free speech purposes the panel has found this to be primarily a pretext for cybersquatting, commercial activity, or tarnishment.

2.6.2 Panels find that even a general right to legitimate criticism does not necessarily extend to registering or using a domain name identical to a trademark (i.e., <trademark.tld> (including typos)); even where such a domain name is used in relation to genuine noncommercial free speech, panels tend to find that this creates an impermissible risk of user confusion through impersonation. In certain cases involving parties exclusively from the United States, some panels applying US First Amendment principles have found that even a domain name identical to a trademark used for a bona fide noncommercial criticism site may support a legitimate interest.

如果域名与投诉人的商标不同,即使域名的形式为“商标+贬义词”或“贬义词+商标”,若网站内容真实、不虚假、不误导且为非商业性质,则支持域名持有人要求权利或合法权益的主张。

另外,为支持网站的运营、抵消域名和网站托管的费用而发起的捐款行为是允许的商业行为。

Where the domain name is not identical to the complainant’s trademark, but it comprises the mark plus a derogatory term (e.g., <trademarksucks.tld>), panels tend to find that the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if such use is prima facie noncommercial, genuinely fair, and not misleading or false. Some panels have found in such cases that a limited degree of incidental commercial activity may be permissible in certain circumstances (e.g., as “fundraising” to offset registration or hosting costs associated with the domain name and website).

关于粉丝类网站(2.7)

网站必须是活跃的、非商业质的,并且与投诉人官方网站有明显的区别。跟”Criticism site”一样,尽量避免使用与商标相同但后缀不同的域名。

a respondent’s fan site must be active, genuinely noncommercial, and clearly distinct from any official complainant site.

Where a domain name which is identical to a trademark (i.e., <trademark.tld>) is being used in relation to a genuine noncommercial fan site, panels have tended to find that a general right to operate a fan site (even one that is supportive of the mark owner) does not necessarily extend to registering or using a domain name that is identical to the complainant’s trademark, particularly as the domain name may be misunderstood by Internet users as being somehow sponsored or endorsed by the trademark owner. (See discussion of inter alia misrepresentation at section 2.5 above.) In such cases, where the domain name is identical to the trademark, panels have also noted that this prevents the trademark holder from exercising its rights to the mark and so managing its presence on the Internet, including through a corresponding email address.

如果域名与商标不同,跟”Criticism site”一样,允许为抵消域名和网站托管费用的捐款行为。

Where the domain name is not identical to the complainant’s trademark, i.e., it comprises the mark plus an additional, typically descriptive or laudatory term (e.g., <celebrity-fan.tld>), noting the factors listed above at section 2.5.2, panels tend to find that the respondent has a legitimate interest in using the mark as part of the domain name for a fan site if such use is considered to be fair in all of the circumstances of the case. Where such a site is noncommercial in nature, this would tend to support a finding that the use is a fair one. Some panels have found in such cases that a limited degree of incidental commercial activity may be permissible in certain circumstances (e.g., to offset registration or hosting costs associated with the domain name and website).

经销商和分销商使用与商标相关的域名(2.8)

基于善意,经销商、分销商和服务提供商使用包含投诉人商标的域名从事相关产品、服务的销售或维修业务具有合法权益。如果双方事先达成协议明确禁止的除外。

除此之外,还需要满足以下条件:

  1. 必须真实的提供产品和服务;
  2. 只能提供该商标的产品和服务;
  3. 网站必须准确、突出地揭示与商标持有人的关系;
  4. 不得试图垄断市场。

注:PPC类网站不属于直接提供产品或服务。

While the following section primarily concerns cases involving “bait and switch” or other related unfair trade practices, many of the principles outlined above, especially at section 2.5 with respect to fair use, underpin the following section.

2.8.1 Panels have recognized that resellers, distributors, or service providers using a domain name containing the complainant’s trademark to undertake sales or repairs related to the complainant’s goods or services may be making a bona fide offering of goods and services and thus have a legitimate interest in such domain name. Outlined in the “Oki Data test”, the following cumulative requirements will be applied in the specific conditions of a UDRP case:

(i) the respondent must actually be offering the goods or services at issue;

(ii) the respondent must use the site to sell only the trademarked goods or services;

(iii) the site must accurately and prominently disclose the registrant’s relationship with the trademark holder; and

(iv) the respondent must not try to “corner the market” in domain names that reflect the trademark.

The Oki Data test does not apply where any prior agreement, express or otherwise, between the parties expressly prohibits (or allows) the registration or use of domain names incorporating the complainant’s trademark.

2.8.2 Cases applying the Oki Data test usually involve a domain name comprising a trademark plus a descriptive term (e.g., “parts”, “repairs”, or “location”), whether at the second-level or the top-level. At the same time, the risk of misrepresentation has led panels to find that a respondent lacks rights or legitimate interests in cases involving a domain name identical to the complainant’s trademark. [See section 2.5.1 above.]

Panels have found that PPC websites do not normally meet the Oki Data requirements as they do not themselves directly offer the goods or services at issue.

关于包含PPC链接的停放页面(2.9)

不得有与商标相关的PPC链接。如果域名持有人做过禁止与商标相关广告的努力,则可以减轻针对投诉人的恶意推断。

Applying UDRP paragraph 4(c), panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users.

Panels have additionally noted that respondent efforts to suppress PPC advertising related to the complainant’s trademark (e.g., through so-called “negative keywords”) can mitigate against an inference of targeting the complainant.

Panels have recognized that the use of a domain name to host a page comprising PPC links would be permissible – and therefore consistent with respondent rights or legitimate interests under the UDRP – where the domain name consists of an actual dictionary word(s) or phrase and is used to host PPC links genuinely related to the dictionary meaning of the word(s) or phrase comprising the domain name, and not to trade off the complainant’s (or its competitor’s) trademark.

In cases involving a website that is not predominantly a “typical” parked or PPC site (e.g., a blog, forum, or other informational page), where other clear, non-pretextual indicia of respondent rights or legitimate interests are present, some panels have been prepared to accept the incidental limited presence of PPC links as not inconsistent with respondent rights or legitimate interests.

关于单词、短语或首字母缩写类域名(2.10)

不涉及相关商标的产品和服务即可,同时还会考虑商标的地位和声望,即知名度问题。

The fact that a particular term has a dictionary meaning is sometimes confused with the notion of a “generic” term. When used in a non-dictionary distinctive sense (i.e., in a manner that bears no relation to the goods or services being sold), such dictionary terms can function as “arbitrary” trademarks. (See the “orange” example below.)

2.10.1 Panels have recognized that merely registering a domain name comprised of a dictionary word or phrase does not by itself automatically confer rights or legitimate interests on the respondent; panels have held that mere arguments that a domain name corresponds to a dictionary term/phrase will not necessarily suffice. In order to find rights or legitimate interests in a domain name based on its dictionary meaning, the domain name should be genuinely used, or at least demonstrably intended for such use, in connection with the relied-upon dictionary meaning and not to trade off third-party trademark rights.

For example, a hypothetical respondent may well have a legitimate interest in the domain name <orange.com> if it uses the domain name for a website providing information about the fruit or the color orange. The same respondent would not however have a legitimate interest in the domain name if the corresponding website is aimed at goods or services that target a third-party trademark (in this example: Orange, well-known inter alia for telecommunications and Internet services) which uses the same term as a trademark in a non-dictionary sense.

Panels have assessed cases involving common phrases (whether spelled out or numerical) corresponding in whole or in part to numbers (e.g., 24/7 or 365) in a similar manner as dictionary terms.

Panels also tend to look at factors such as the status and fame of the relevant mark and whether the respondent has registered and legitimately used other domain names containing dictionary words or phrases in connection with the respective dictionary meaning.

[See generally section 3.2.1.]

2.10.2 For a respondent to have rights or legitimate interests in a domain name comprising an acronym, the respondent’s evidence supporting its explanation for its registration (and any use) of the domain name should indicate a credible and legitimate intent which does not capitalize on the reputation and goodwill inherent in the complainant’s mark.

权利或合法权益的时效性问题(2.11)

过去的善意使用不必然拥有权利或合法权益。

Panels tend to assess claimed respondent rights or legitimate interests in the present, i.e., with a view to the circumstances prevailing at the time of the filing of the complaint.

Without prejudice to the complainant’s duty to establish that a domain name has been registered and used in bad faith, a respondent claiming a right or legitimate interest in a domain name for example based on a prior agreement or relationship between the parties or based on past good-faith use (thus demonstrating merely a past right or legitimate interest) would not necessarily have rights or legitimate interests in the domain name, at the time a decision is rendered.

Panels will often also consider any evidence of previous legitimate use under the third UDRP element. [See also in this regard, sections 3.2.1 and 3.8 generally.]

同时拥有商标和域名的情况(2.12)

如果获取商标主要是为了规避仲裁或以其它方式阻止投诉人行使权利,则不会自动赋予权利或合法权益。

2.12.1 Panels have recognized that a respondent’s prior registration of a trademark which corresponds to a domain name will ordinarily support a finding of rights or legitimate interests in that domain name for purposes of the second element.

2.12.2 The existence of a respondent trademark does not however automatically confer rights or legitimate interests on the respondent. For example, panels have generally declined to find respondent rights or legitimate interests in a domain name on the basis of a corresponding trademark registration where the overall circumstances demonstrate that such trademark was obtained primarily to circumvent the application of the UDRP or otherwise prevent the complainant’s exercise of its rights (even if only in a particular jurisdiction). Absent evidence of such circumstances indicating pretext however, panels have been reluctant to reject a respondent trademark registration out of hand.

非法行为(2.13)

非法使用域名不享有权利或合法权益。

2.13.1 Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. Particularly in the case of counterfeits and pharmaceuticals, this is true irrespective of any disclosure on the related website that such infringing goods are “replicas” or “reproductions” or indeed the use of such term in the domain name itself.

[See sections 3.1.4 and 4.2.]

2.13.2 Panels are generally not prepared however to accept merely conclusory or wholly unsupported allegations of illegal activity, including counterfeiting, even when the respondent is in default. On the other hand, panels have found that circumstantial evidence can support a complainant’s otherwise credible claim of illegal respondent activity. Evidence that the goods are offered disproportionately below market value, that the goods are only sold under license or through a prescription (especially with pharmaceutical products), that the images of the goods prima facie suggest (e.g., where the relevant logo is distorted) that they are not genuine, that the respondent has misappropriated copyrighted images from the complainant’s website, that the goods are extremely rare, that the goods have prompted consumer complaints, or that a respondent has improperly masked its identity to avoid being contactable, have each been found relevant in this regard. Where relevant, panels have found evidence of so-called “trap purchases” to be of additional assistance.

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