Relevant Decisions

Stable Aggregator Limited, Hollycorn N.V., Dream Finance OÜ, t/a Coinspaid, Mr. Pavel Kashuba v. Host Master, Njalla Okta LLC, FlokiNET Ltd WhoisProtection FlokiNET Ltd WhoisProtection, FlokiNET Ltd, Renne Meyer, WIPO D2025-0572 <coinspaidscam. com>, et., Denied

The Complainants allege that the Respondent’s intention was not to genuinely criticize the Complainants. Rather, the Complainants allege that the Respondent’s intention was to maliciously use the disputed domain names to host websites containing demonstrably false information for the sole purpose of damaging and disrupting the Complainants’ business. There is, however, nothing on the face of the disputed domain name’s websites indicating clearly that the Respondent’s criticism is not genuine, thus, establishing whether or not the Complainants are correct in this regard would necessarily involve the Panel considering, in detail, the veracity of the material featured on the disputed domain names’ websites. Assessing whether or not the Respondent’s criticism of the Complainants has any merit or is defamatory is beyond the scope of a cybersquatting enquiry under the Policy, and this is best left to the courts.

DAVID LAWVER v. Abdul Rehman Asad, Forum FA2410002122602, <davidlawverscammer.com>, Denied

No user would be confused into thinking that the resolving website is affiliated with Complainant. Nor has Complainant presented convincing evidence that Respondent acted with an intent to mislead or to confuse.

On the basis of the evidence before it, the Panel finds that Respondent is using the disputed domain name for criticism, and thus—for all the above reasons and in line with previous UDRP decisions—the Panel finds that Respondent has rights and legitimate interests in the disputed domain name under the Policy.

E.ON SE v. IceNetworks Ltd., CAC-UDRP-106990 (2024), <boycott-eonnext.com>, Denied

The Panel acknowledges that Respondent was and is aware of Complainant, at least enough to register a domain name and maintain a web page encouraging a boycott of Complainant. But that is far from sufficient proof of bad faith under the Policy. As found above, Respondent has a legitimate interest in encouraging a boycott of Complainant, for any reason or no reason.

Republican Party of Florida v. Manuel Asensio, WIPO D2024-3099, <stjohnsgop.org>, Denied

Respondent’s website appears to be noncommercial in nature and consists primarily of criticism and text regarding Respondent’s views…Taking all of the above noted factors into account the Panel concludes that insofar as Respondent is using the disputed domain name which is used with a website that is of a noncommercial nature to criticize the Republican Party’s (GOP’s) policies as they relate to alleged federal judicial corruption, Complainant’s Complaint fails on the second element.

Veatch Carlson, LLP v. Foster Taft, Forum  FA2409002114255, <veatchcarlson.com>, 3-member, Denied

Interpretation of this “fair use” provision has been divided, partly because UDRP panelists, drawn internationally, have brought their own legal perspectives to the question. The WIPO Overview represents one position…The Panel finds that the criticism of Complainant on the webpage is non-commercial and is not a pretext for cybersquatting, tarnishment, or some purpose inhering to Respondent’s benefit (WIPO Overview #2.6.1). Moreover, the Panel finds on balance that Respondent reasonably believes its use to be truthful and well-founded (#2.5.2). The matter might have been more clear-cut had Respondent registered <veatchcarlsonsucks.com> in the sense that Internet users would intuitively understand that any website was not operated by, or associated with, Complainant but on the facts the Panel finds that Respondent’s behaviour brings it within paragraph 4(c)(iii) of the Policy.

Tiffany Chhuom, PLLC d/b/a Ethtech, Tiffany Chhuom, Peter Chhuom v. J S, WIPO D2023-2930, <peterchhuom.com> et. al., Denied

The Panel wants to make clear that this factor does not require a panelist to assess the merits of the criticism or whether it is unfounded or defamatory. Rather the touchstone is for the panel to assess as best as it can on the record before it whether the alleged criticism is not merely a pretext for cybersquatting or meant to essentially further a commercial purpose or interest for the benefit of the respondent. By way of example, a website with alleged criticism or commentary with links to other websites or that solicits personal identifying information and email addresses might put into question the genuineness of such criticism and its noncommercial nature.

Watch Tower Bible and Tract Society of Pennsylvania v. Vincent Moore, WIPO  D2023-2034, <thejw.org>, Denied

The Panel finds that it would be readily apparent to Internet users (including Jehovah’s Witnesses) upon visiting the Website that it is not the Complainant’s website, but is rather a website critical of the  Complainant. In all the circumstances, the Panel finds that a holistic approach assessing the totality of factors in this case supports the Respondent’s claim to a right or legitimate interest for the purposes of the second element under paragraph 4(a) of the Policy.

Robert Half International Inc. v. WeAllSay.Gay / WE ALL SAY LLC, Forum FA2306002050855, <roberthalf.gay>, Transfer

Respondent makes various assertions and arguments to support its entitlement to use and register the Disputed Domain Name, including that the Disputed Domain Name resolves to a website that offers commentary and criticism around the current political attacks towards the LGBTQIA+ community. In particular, Respondent asserts that the purpose of the Disputed Domain Name is to amplify LGBTQIA+ issues and rights through public commentary and corporate criticism and, therefore, Respondent’s use of the Disputed Domain Name is protected by free speech. However, there is simply no connection between the ROBERT HALF Marks and the LGBTQIA+ content found on the resolving webpages. The political content on the resolving website does not make Respondent’s use fair or non-commercial.

Everytown for Gun Safety Action Fund, Inc. v. Contact Privacy Inc. Customer 1249561463 / Steve Coffman, WIPO D2022-0473 <momsdemand.org>, Transfer

While the Panel supports an approach as expressed through an “impersonation test” as set forth in Dover Downs, the Panel nevertheless has reservations about adopting a blanket use of an “impersonation test.”  Such an approach if applied too broadly or without looking at other case factors, could in the Panel’s view, create an undue burden on respondents in cases involving parties based only in the United States where a domain name identical to a trademark is being used for a bona fide noncommercial criticism site that would be protected under the First Amendment as applied by some United States federal court decisions…

To the Panel, the use of an “impersonation test” is an important factor to be considered in cases of claimed free expression involving a domain name that is identical or nearly identical to another’s trademark along with other factors that panels have focused on, such as (i) the genuineness and nature of the criticism or commentary, (ii) the possible pretextual nature of the respondent’s website, (iii) the commercial or noncommercial aspects of the respondent’s website, (iv) the nature of the domain name itself potentially including any additional terms or plays on words, (v) the use of disclaimers, and (vi) other factors that could inform whether a respondent is using the disputed domain for bona fide noncommercial criticism concerning a complainant or to take advantage of a complainant’s mark in a bad faith or abusive way for the benefit of a respondent.  The Panel believes the approach should be more holistic and focus on the totality of factors and should not necessarily be determined, at least for parties legitimately based in the United States, on one factor alone (albeit one that perhaps sets the scene for the consideration of others).

Roman Polanski v. Matan Uziel, WIPO D2022-4360 <imetpolanski.com>, 3-member, Denied

On balance the Panel finds that the Respondent has successfully demonstrated his website is for the purposes of criticism or “whistleblowing” and not a pretext for cybersquatting. Accordingly, the manner of use qualifies as fair use for the purposes of the Policy. Thus, the Complainant has failed to establish that the Respondent has no rights or legitimate interests in the disputed domain name.

**

**Law Office of Graham C. Fisher, LLC v. Jack Toering / FindLocal, Inc, Forum FA2212002023163, <grahamcfisher.com>, Denied

This Panel takes the view that the goals of the Policy are limited… The purpose of the Policy is limited to rectifying cases of obvious cyber-squatting. Complainant has failed to prove that Respondent lacks a legitimate interest in the Domain Name. In particular, it has failed to prove that Respondent is not entitled to the protections of paragraph 4(c)(iii) of the Policy, which provides that a Respondent has a legitimate interest if it 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”.

Scrum Alliance, LLC v. Contact Privacy Inc. Customer 1247644697 / Matthew Barcomb, WIPO D2021-2932, <scrumsalliance.org>, Denied

This Panel’s dicta in Dover Downs Gaming & Entertainment, Inc., supra, which suggested that only the domain name should be considered in assessing impersonation, does not give sufficient deference to all of the factors that should be considered in assessing impersonation. A more nuanced assessment of all the factors is required. Florida Power & Light Company, supra; cf. Network Automation, Inc. v. Advanced Systems Concepts, 638 F.3d 1137, 1148 (9th Cir. 2011) (likelihood of confusion should be analyzed flexibly as some factors “may emerge as more illuminating on the question of consumer confusion”).

Rechtsanwälte Lampmann, Haberkamm & Rosenbaum Partnerschaft v. Privacy Department, IceNetworks Ltd. / Domain Admin, Whois Privacy Corp.,WIPO D2021-1083, <ihr-law.org>, Transfer

UDRP jurisprudence recognises 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. See section 2.6 of WIPO Overview 3.0 . However, as explained in section 2.6.1 of WIPO Overview 3.0 , the criticism must be genuine. For the reasons given in section 6F below, it seems likely that any criticism on the website at the disputed domain name did not reflect genuine client experiences but, rather, was part of a scheme to extract money from the Complainant.

Brenntag Holding GmbH v. Domain Admin / Honey Salt Ltd., Forum FA2109001962136 <brenntag.sucks>, 3-member, Transfer

Thus, Respondent cannot invoke the free speech defense as it does not exercise any free speech rights itself. Rather, Respondent is a third party without any direct relationship to person or entity who can invoke rights of free speech, and further Respondent has taken the out-of-context critical comments (while ignoring any accompanying positive comments from the same source) in a manner that is prejudicial and calculated for tarnishment of Complainant’s mark.

Cargotec Oyj/ Cargotec Patenter AB v. Honey Salt ltd, CAC-UDRP-103423 <cargotec.sucks> (2020), 3-member, Transfer with a dissent

Majority:

We two Panelists are in general fully aware of the need to protect free speech and the freedom of ex-pression in domain law cases. But in this special case, it is important to note that the Respondent is not the person who is said to be making the allegedly free speech commentary or criticism…The alleged criticism seems to have been added as an afterthought between that date and the date when the Response was filed, further calling its genuineness into question…The cases apply an “all circumstances” view which the Panel believes is consistent with its own analysis above. Importantly, in each of these cases, the respondent, in whose favour the panel found, was the person seeking to make genuine criticism or to publish genuinely held views/commentary about the complainant. It was not a third party, as in the present case.

Dissent:

The Complainant opposes the public criticism/ criticism of its business and wants to ideally stop or at least to demote it – to protect its reputation. The Respondent and Everything.sucks Inc run a business that facilitates and enables the expression of others.

HAI Global v. Dane Rose, CAC-UDRP-102016 (2018), <humanawarenessinstitute.org>, Denied

The statement in the Jurisprudential Overview as of 2017 is too closely tied to the specific mention of the First Amendment to the US Constitution, and has already been overtaken by a broader range of decisions. Instead, the Panel notes that close attention to the implications of a decision under the UDRP for the ability to criticise reflects an important point in municipal and international law regarding the need to balance property rights with other rights (including freedom of expression, which is famously protected in one way in the US Constitution but by diverse means in many other systems). There is a more promising approach (see e.g. Case 101294 Upwork v Sunny Kumar, at the present Provider) of taking all of the circumstances into account, consistent with the balance between intellectual property rights and freedom of expression, neither of which are absolute in many legal systems (the Panelist in Case 101294 identifies European Union law). The Panel finds this approach an important contribution to the debate, especially in light of the ambiguous language of the latest Jurisprudential Overview.

Digest Commentary

• Digest Vol. 4.41 <veatchcarlson.com>, Denied
• Digest Vol. 4.26 <drmarkfuller.com>, Transfer
• Digest Vol. 3.47 <mexico-bariatric-center-warning .com>, Denied
• Digest Vol. 3.30 <thejw.org>, Denied
• Digest Vol. 3.29 <south32 .com>, Denied
• Digest Vol. 3.28 <lumsa.university>, Transfer
• Digest Vol. 3.21 <vallhallan .com>, Denied
• Digest Vol. 3.20 <SouthWoke .com>, Denied
• Digest Vol. 3.3 <grahamcfisher.com>, Denied
• Digest Vol. 2.50 <stopspectrum .com> and <spectrumkills .com>, Transfer
• Digest Vol. 2.15 <momsdemand.org>, Transfer