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Recent Case Notes & Commentary

Spurious Allegations of Bad Faith Will not Succeed: Hard Evidence is Needed

6d bytes v. Arboris Ltd / Charles Sears

Forum Claim Number: FA1908001857298

September 24, 2019

There has been another instalment in the answer to the question: what has to be shown to prove bad faith? This dispute over a British company’s registration of the domain name <> turned out to be a tour of spurious allegations of bad faith made by the Complainant, a US food producer (6d bytes), none of which succeeded. So the case demonstrates several discrete failures to prove that the domain name was registered or used in an abusive way and is helpful to the extent that it shows us what kinds of allegations won’t work for Complainants.

The Complainant in this case is a start-up seeking to revolutionise the food industry with AI

Once again it shows that if proper evidence had been produced, some or perhaps all of the alleged bases of bad faith might have succeeded.

6d bytes made four allegations of bad faith in support of its claim: (1) The Respondent registered the domain name only eight days after 6d bytes’ US trademark application for BLENDID was publicly opened for opposition, (2) The Respondent did not oppose their application for the trademark, (3) the Respondent had not used the domain name at all since registering it and, (4) when 6d bytes reached out to the Respondent regarding the registration through GoDaddy it declined to respond.

The panel dealt with each allegation in turn and concluded that there was no evidence of bad faith on the part of the respondent for any allegation; therefore the claim failed.

1.Was the timing of the registration suspicious?

Not really, because the Respondent bought and registered it almost immediately it came up for sale, due to the previous owner not renewing the registration. The suspicion was that it had registered the domain name because the complainant had just applied for its trademark. But Aboris did not know of that application, which was only a pending intent-to-use application. which would not have been found in a search at the time Arboris registered the domain name.

2. Respondent did not oppose the registration of the trademark.

This was not bad faith because the Respondent was under no obligation to oppose it and in any case it credibly did not know the application was on foot. It could not have opposed the trademark application if it was not aware of its existence.

3. Does non-use of the domain name amount to bad faith?

No. Arboris claimed that its domain name speculation was a legitimate use of the name but alternatively, it had also been using it as a ‘spam trap’ (a site linked to an email account used to identify spam email servers). The Panel was not convinced by either of these ‘uses’ but nonetheless, neither could amount to an abuse of the 6d bytes’ rights because the parties operate in unrelated industries and there was no evidence of an attempt to redirect web traffic or other opportunistic behaviour.

4. Respondent did not reply to Complainant’s letter of demand

The final allegation of bad faith was based on the Arboris’ failure to reply to communication from 6d bytes. But it did not have any obligation to do. There was serious doubt as to whether the alleged communication actually existed given that no evidence for it was produced. This part of the claim was therefore a ‘long shot’ at best and could not be proved, so it brought the tour of spurious allegations to a firm close.

The Complainant had thus failed to prove the third element and the claim failed.

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