Recent Case Notes & Commentary

REGISTRATION IN BAD FAITH MUST BE PROVED

Mary Hall dba The Recessionista v. Ellen London

FORUM Case. Claim Number: FA1404001555342

May 30, 2014


The sole point in this case was whether the domain name had been registered in bad faith. It is a salutary reminder that to succeed in a claim, it must be proved that the Respondent registered  the domain name in bad faith and then used it in bad faith. One of them is not enough.


The domain name was originally registered (i.e. created) in 2008, but the Respondent did not own it then. It bought the domain name from a broker in 2011. That is regarded as the time when it registered the domain name. The Complainant’s trademark was not registered until registered May 28, 2013.


Thus, did the Respondent register the domain name in bad faith in 2008? No. No-one could have registered the domain name in bad faith in 2008, because there was no trademark in existence in 2008 towards which bad faith could be directed. In any event, the Respondent did not own the domain name in 2008.


Thus, did the Respondent register the domain name in bad faith in 2011?


The Respondent did not register it in bad faith in 2011 because there was “nothing in the surrounding circumstances …that should have alerted Respondent to the possible illegitimacy of the domain name, such as a suggestion of a pending or threatened challenge to it.”


Clearly, the answer to the question was that the Respondent did NOT register the domain name in bad faith, either in 2008 or 2011 and, as this vital requirement had not been proved, the Complainant lost.