3.6 PPC Advertising and Bad Faith
PPC advertising can be evidence of bad faith use, however it is often misunderstood. PPC advertising can be offered by a Respondent or by a domain name registrar. It can sometimes be difficult to differentiate the two but for the purposes of gauging a Respondent’s bad faith, generally registrar-populated ads done on a default and automatic basis where the Respondent does not receive any remuneration, is not reflective of a Respondent’s intentions in registering or using a domain name in bad faith, particularly where the Respondent was unaware of such PPC or where the Respondent is not a sophisticated domain name registrant. PPC advertisements are often a function of not only the subject matter of the domain name, but also the geographic location of the visitor and the visitor’s past Internet searches and interests derived from cookies stored on the visitor’s computer or known by the visitor’s browser. As such, care must be taken in assuming that what a Complainant sees is the same as what the Respondent or a Panelist sees.
Additional Information
Relevant Decisions
Minute Men, Inc. v. Domain Administrator / PTB Media Ltd, Forum FA2407002106746, <minutemen.com>, 3-member, Denied with a dissenting opinion
Majority:
PPC websites may constitute a bona fide offering and use in good faith if there is no targeting of a complainant’s trademark. The PPC links on Respondent’s website between November 6, 2006 and February 20, 2009 were Business, Cars, Education, Entertainment, Finances, Health, Homes, Insurance, Internet, Legal and Shopping.
Taking all the circumstances of this case into account, the majority finds that Complainant has failed to show that the domain name was registered in bad faith.
Dissent
The responsibility of the Respondent for the use of the Domain Name for pay per click links for competing services to the Complainant and the lack of any evidence that the Respondent has been trying to use or encourage purchase or use of the Domain Name for military history purposes
Venderstorm Ventures GmbH & Co. KG v. Domain Administrator, PTB Media Ltd, WIPO D2024-1287, <babista.com>, 3-member, Denied
The Complainant alleges that the Respondent’s recent use of the disputed domain name indicates an intention to trade off the goodwill of the Complainant. It presents screenshots of the landing page associated with the disputed domain name offering the disputed domain name for sale and showing PPC links related to clothing, which resolve to websites of the Complainant’s competitors. The Parties dispute when these links began to appear. Given that the screenshots were taken in January 2024, 19 years after the registration of the disputed domain name, they do not allow the Panel to infer anything regarding the intentions behind the registration of the disputed domain name in 2005.
Toros Tarım Sanayi ve Ticaret Anonim Şirketi v. Rosa Maria Vicente Casado, Bulevar Informatica, S.L., WIPO D2023-5383, <toros.com>, 3-member, Denied, RDNH
In the present case, however, the Respondent has submitted evidence to show that a person in Spain seeking to navigate to “www.toros.com” would not be shown PPC links. Instead, they would be shown the “No sponsors” page described in section 4 above. In these circumstances, the Respondent had no means of knowing the use being made of its disputed domain name. Accordingly, it is not appropriate to attribute to the Respondent liability for conduct which it could not know about.
West Technology Group, LLC v. charafa saliou, charafa saliou, WIPO D2023-4617, <globnewswire.com>, 3-member, Transfer
The Panel also finds that Respondent is using the Disputed Domain Name to generate ad revenue. In the banner at the top of the Website, there is a placeholder for advertisements. The Panel finds that Respondent is using the Disputed Domain Name in bad faith to attract, for commercial gain, Internet users to the Disputed Domain Name by creating a likelihood of confusion with Complainant’s Mark as to the source, sponsorship, or endorsement of Respondent’s website. This is textbook bad faith use.
Royal Caribbean Cruises, Ltd. v. Anonymize, Inc. / Synergy Technologies, LLC, WIPO D2023-1708 <starofthesea .com>, 3-member, Denied, RDNH
the evidence shows that “Star of the Sea” is a known religious reference to the Virgin Mary and that Respondent has registered and used the Disputed Domain Name in connection with a PPC page that contains links unrelated to Complainant or Complainant’s trademarks and instead solely related to the religious meaning of the phrase “Star of the Sea.” Previous panels have found that use of a disputed domain name in connection with a PPC page that provides links connected to a common or dictionary meaning associated with the domain name, and unrelated to a complainant or a complainant’s trademarks does not constitute bad faith.
Zydus Lifesciences Ltd. (formerly known as Cadila Healthcare Ltd.) v. Jewella Privacy LLC / DNS, Domain Privacy LTD, WIPO D2022-0880 <zydus .com>, 3-member, Denied, RDNH
The Complaint rather than placing in evidence a copy of the webpage it relies upon, sought to describe it, but in any event its description of that page is of a generic PPC page without any evidence of any specific targeting. The Panel considers that in circumstances where a domain name has been legitimately acquired for its generic properties, linking that domain name to a parking page which automatically generates links to third party websites based on the generic properties of the domain name does not amount to bad faith use absent any specific targeting of the Complainant. The Complaint describes the Respondent’s website as showing advertisements related to “Zydus Pharma”, “India Pharma” and “Job Vacancies”.” If the Panel is correct that these are algorithmically generated links, and the page was accessed in India (as seems likely) the Panel is not particularly surprised it returned links which may relate to the Complainant. While the presence of “click through” links may in appropriate cases form a basis to show targeting, in the specific circumstances of this case, and in particular without additional supporting evidence of targeting, the facts as described in the Complaint do not in the Panel’s opinion establish that the Respondent was deliberately targeting the Complainant. The Panel therefore concludes that in this case even if the Disputed Domain Name was used in the manner described by the Complainant that does not support any finding of bad faith.
Enterprise Products Partners L.P. v. Domain Admin / Media Matrix LLC, NAF FA2212002025287 <enterpriseproductsllc .com>, 3-member, Denied
There is nothing inherently wrong with operating a pay-per-click website. That becomes wrongful only if the respondent seeks to attract Internet users to its website by creating confusion as to the source, sponsorship, endorsement or affiliation of the website with the complainant. That cannot be proven if the respondent was not aware of the complainant and its rights in the relevant mark. Complainant has failed to prove that Respondent had actual knowledge of Complainant and its marks when it registered the Domain Name or that it has sought to trade upon the goodwill and reputation of Complainant.
Oystershell Consumer Health, Inc. v. Titan Networks, CAC-UDRP-103658 (2021), <rid.com>, 3-Member panel, Denied with concurring in part and dissenting in part
The fact of automatic linking is not to be congealed to a categorical rule. Rather, the majority sees it as a factor among others. In fact, the Respondent has anticipated this argument: “The inclusion of the single Complainant-related link was unintentional and inadvertent and was not placed there by Respondent but rather was apparently automatically generated by the Domain Name’s platform using an algorithm.”
Saudi Arabian Mining Company (Ma’aden) v. Fundacion Privacy Services LTD, WIPO D2021-3590, <maaden.com>, Transfer with a dissenting opinion
Majority View:
Over the years, the PPC links on the landing page for the disputed domain name have directed consumers to competitors of the Complainant, including several other mining and construction companies. The Respondent has profited from diversion of Internet users attracted by the likelihood of confusion with the Complainant’s mark and the Complainant’s website “www.maaden.com.sa”. The Respondent is ultimately responsible for the content of its website regardless of how that content is generated. The reason the PPC links point to construction companies is because the Complainant’s mark is synonymous with and prevalent in this sector. If the Respondent was aware of the Complainant’s mark at the time of acquisition, it must also have known that the PPC links would point to the Complainant’s competitors. The Respondent should have ensured that the links pointed towards “metals” or “minerals”, or a blank homepage or otherwise addressed the content of the PPC links, and its failure to do so implies that it understood that the disputed domain name was causing confusion among consumers.
Dissenting View:
PPC link technology has evolved considerably since its early days where such links were either static, or if they were dynamic, they were based on the content of the site and the domain name itself. Putting the privacy implications aside, today many PPC links display advertisements based on previous search results of the user.
In this case, that is what I believe we have here. When visiting the disputed domain name, this Panelist did not get links to the Complainant or to any of its competitors, but rather links that were related to previous searches I performed (one related to my daughter’s college search and another about laptops that I was researching). Therefore, the evidence provided by the Complainant could just as likely have been based on the previous activity of the Complainant as opposed to the use of the domain name to profit off the third-party mark.
Epic Systems Corporation v. Domain Administrator, See PrivacyGuardian.org / CGM Publishing LLC, WIPO D2021-0702, <mychart.org>, 3-member, Transfer
The record is unambiguous that the disputed domain name was used for a pay-per-click site that was linked to advertisements placed by Complainant’s competitors and others connected to the healthcare industry. There is no evidence that Respondent attempted to mitigate this use of the disputed domain name. It is the view of this and previous panels that Respondent cannot disclaim responsibility for the sponsored links, even if automatically generated.
Costa Crociere S.P.A. v. Yoshiki Okada, WIPO D2018-1632, <costa.com>, 3-member, Denied
Concerning the Respondent’s initial use of the disputed domain name, based on the Panel’s own review of archived web pages at “www.archive.org”, the disputed domain name does not appear to have resolved to any active web page until May 22, 2001 and appears on that date to have resolved to a parking page containing links to a wide variety of goods and services which did not including cruising. The more recent use of the disputed domain name, to resolve to cruising-related links, does not therefore appear to have been present at, or for some years after, the date of registration of the disputed domain name.