Are PPC Ads on a Registrar Supplied Default Landing Page Evidence of the Respondent’s Bad Faith?
The question of who is responsible for the content appearing on registrar default landing pages has troubled UDRP panels ever since registrars began offering such pages over 15 years ago. Some panels find that the respondent is ultimately responsible for the content that appears on its registered domain name. Other panels find that the content on registrar landing pages does not reflect the intent of the respondent.
This issue arises once again in the recent decathlons.org dispute. This offers us the opportunity to closely examine the issue to see if doing so allows us to shed light on the question.
In the <decathlons .org> dispute, the Complainant, Decathlon, a large French-based sports retailer with operations across most of the globe, alleged, in part, “On the question of bad faith use, the Complainant alludes to the fact that the Disputed Domain Name is used to redirect Internet users to a parking page with links directly related to the Complainant’s business activity”. The Respondent did not submit a reply and defaulted.
Here is a snapshot of the page in question:
We see that this appears to be a page created by the Registrar, NameCheap. It is prominently branded as NameCheap. The statement at the top of the page, “This domain was recently registered at NameCheap”, suggests that the Respondent has not yet put up its own page. This is further clarified in the disclaimer at the bottom: “The Sponsored Listings displayed above are served automatically by a third party. Neither Parkingcrew [the parking company] nor the domain name owner maintain any relationship with the advertisers.” In other words, the Respondent has nothing to do with the ads that are appearing which are served by a third-party that has a relationship with the Registrar.
The issue from a UDRP perspective is whether the Respondent is responsible for the links that appear on the registrar’s default landing page.
UDRP Panels have adopted, in broad terms, two approaches to the question of responsibility for content on landing pages that registrars place on their customers’ undeveloped domain names by default. One holds the Respondent responsible for the links. The other holds that the Respondent is not responsible for the links. These two approaches appear to be unreconcilable.
This comment will attempt to show that different facts lead to different inferences. If the fact patterns are carefully distinguished, then it becomes clearer under what circumstances it is appropriate to treat the links as reflective of the Respondent’s intent, and under what circumstances it is, instead, not appropriate to hold the Respondent responsible for the content of a registrar landing page.
The key factors are:
- The degree of fame and distinctiveness of the Complainant’s mark;
- The degree of sophistication of the Respondent.
The greater the fame and distinctiveness of the Complainant’s mark and the greater the sophistication of the Respondent the more justified the inference holding that the content of the registrar landing page reflects the Respondent’s intent. The lesser the fame and distinctiveness of the Complainant’s mark and the lesser the sophistication of the Respondent, the less justified the attribution of bad faith to the Respondent for content on a registrar provided landing page.
This discussion also highlights a recurring problem in UDRP jurisprudence – a mismatch between the facts in a cited decision and the present case. At times, a holding in one case is treated as an absolute approach that can be applied indiscriminately to any other case regardless of the key differences in the facts between the two cases. Yet most holdings are highly fact specific and do not necessarily remain valid when applied to a dispute with very different facts.
For instance, in the airsculpting.com dispute, the three-member panel found:
As to the third element, it is well settled that Respondent’s claim that Uniregistry (GoDaddy) is responsible for placing the sponsored click-through links at the website to which the domain name resolves is irrelevant, as Respondent is responsible for the content of the resolving website.
Taken as a stand-alone holding devoid of context, this might appear as strong “well settled” precedent for holding a Respondent responsible for the content on a Registrar provided landing page.
Yet the decisive fact in the <airsculpting .com> dispute is that the Respondent intentionally monetized the domain name with advertising:
it is “parked” at a professional monetizer so that he [the Respondent] can get an understanding of the relevant traffic to the domain name.
Here the role of Uniregistry (GoDaddy) is less that of registrar and more that as a provider of monetization services to customers who wish to monetize traffic to their domain names.
Context matters. It is within the context of the Respondent choosing to monetize the domain name using a company that happens to offer both registrar and monetization services that the Panel’s holding is to be understood. Taken out of context, such a holding may be inapplicable.
We see this disregard for context in the <decathlons .org> dispute. The Complainant in <decathlons .org> cites to the baringsuk.com dispute from 2020. The Panel in <baringsuk .com> implicitly imputed responsibility for the links on the parking page to the Respondent, finding:
The Complainant also proved that the Respondent is using the Disputed Domain Name to lead to a hosting parking page, with commercial links. These facts confirm that the Disputed Domain Name is used to intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
Yet the facts in the <baringsuk .com> and <decathlons .org> disputes are quite different such that a holding in one dispute may have little relevance to the other dispute. For one, it is unclear from the holding in <baringsuk .com> whether the parking page is intentionally being monetized by the Respondent as in the <airsculpting .com> dispute above, or whether the links were supplied by default by the registrar, as in the <decathlons .org> dispute. For another, the UK-based Barings mark is so distinctive that it is not possible to conceive of a plausible legitimate commercial use for the <baringsuk .com> domain name that would not infringe on Barings rights, such that it is not the use but the registration itself that confirms the bad faith. Even in the absence of use, per Telstra, a finding of bad faith would still be justified. This is in contrast to the facts in the <decathlons .org> dispute, for “decathlons” is a non-distinctive, widely used, dictionary word, ”, such that it is plausible to conceive of other legitimate, non-infringing, commercial uses for the domain name. The circumstances of the <baringsuk .com> dispute, therefore, do not serve as useful precedent for the <decathlons .org> dispute.
Where the facts are different, the holdings are different. In the comteam.biz dispute from 2007, Panelist Tony Willoughby found that the Complainant’s “COMTEAM” mark was not highly distinctive:
Accordingly, it is not of itself a trademark that is only sensibly referable to one party, the Complainant.
Willoughby found that the Respondent is not responsible for the content on the registrar provided parking page:
It appears to have been used solely to default to a parking page of the Registrar. The Complainant asserts that the Respondent has been earning revenue via the advertising links on the site. The Respondent acknowledges that the Registrar may have been earning money via those links, but denies that he has earned anything. The Panel is inclined in the circumstances to accept the Respondent’s denial on this point.
In another 2007 case, the genericxenical.net dispute, Panelist W. Scott Blackmer helpfully explores the relationship between attributing bad faith due to a registrar provided parking page and attributing bad faith due to the distinctiveness of the Complainant’s mark:
The Respondent denied obtaining commercial gain from a similar parking website. This is not entirely implausible, since the Panel is aware that some registrars temporarily “park” new domain names at websites with sponsored advertising links, without automatically sharing the click-through advertising revenues with the owner of the domain name unless and until the owner makes further arrangements…
Even assuming (charitably) that the Respondent has not yet recognized any commercial gain from the Domain Name, it is hard to imagine any other intention in registering a domain name confusingly similar to the Complainant’s fanciful, well-established trademark.
Blackmer found bad faith in this dispute not due to the content on the registrar provided landing page, but that, like in Telstra, the mark is distinctive and well-known such that it is not possible to imagine any plausible legitimate use for the mark:
Here, as in Telstra, the Complainant’s mark is distinctive and well known, the Respondent has not come forward with a legitimate reason for registering the Domain Name, and it is difficult to conceive of a good-faith reason to select the Domain Name, precisely because of the fame and distinctiveness of the mark.
The holdings in these various disputes suggest that the degree of distinctiveness of the Complainant’s mark is the primary determinant of bad faith, not the content appearing on a registrar supplied default landing page.
Panelist Jeffrey Neuman, whose background includes high level positions at registries, is familiar with how registrar provided landing pages work and is sensitive to the problem of inapplicable citations. In his recent decision ordering the transfer of the meta-statefarm.com domain name he made sure to clarify that he was not attributing bad faith to the Respondent due to the registrar provided landing pages (emphasis added):
However, the Panel agrees here with the Respondent – namely that registrants, especially those that do not buy or sell domain names for a living, should not be held responsible for parking pages that are stood up by default by its domain name registrar, especially where registrants derive no financial or other benefit from the content or links contained on the website other than letting others know that the domain name has been registered. The Panel notes that it is an unfortunate common practice of registrars to place advertising on the landing pages of its customers’ domain name where its customers have not published any content of its own on the domain. Most registrants are likely unaware of this practice and like the Respondent receive no benefit, financial or otherwise, from such a landing page. Nor are most registrants aware that they can change their settings at a registrar to not allow this to happen. It would be unfair to hold registrants that are unaware of this practice accountable for the actions of its registrar.
Neuman bases the transfer of <meta-statefarm .com> domain name on the fame of the marks and the implausibility of any good faith use. Although he accepts the Complainant’s transfer request, he states that he does not accept the Complainant’s allegation that because the domain name goes to “a page with third-party competing pay-per-click links” that this is evidence of bad faith use on the part of the Respondent. Instead, he goes to some effort to explain why doing so would be “unfair” since in general registrants “should not be held responsible for parking pages that are stood up by default by its domain name registrar”.
As Neuman is aware, since the registrar publishes landing pages by default, the content of these pages is not in themselves a useful guide to the Respondent’s intentions. NameCheap, which produced the page that appears at the <decathlons .org> domain names, states on its website that, “(a)ll newly registered domains are mapped to our Parking page by default”.
GoDaddy’s domain name registration agreement, to give another example, grants itself permission to set up a page with advertising on a customer’s newly registered domain name as the default setting and for GoDaddy’s sole benefit (emphasis added):
GoDaddy’s Default Settings. If you do not direct your domain name away from GoDaddy’s name servers as described above, GoDaddy will direct your domain name to a “Parked Page” (“Default Setting”). You acknowledge and agree that GoDaddy has the right to set the Default Setting.
Parked Page Default Setting. GoDaddy’s Parked Page service is an online domain monetization system designed to generate revenue (through the use of pay per click advertising) from domain names that are not actively being used as websites. If your domain name is directed to a Parked Page, you acknowledge and agree that GoDaddy may display both (a) in-house advertising (which includes links to GoDaddy products and services) and (b) third-party advertising (which includes links to third-party products and services) on your Parked Page through the use of pop-up or pop-under browser windows, banner advertisements, audio or video streams, or any other advertising means, and we may aggregate for our own use, related usage data by means of cookies and other similar means. In addition, you acknowledge and agree that all in-house and third-party advertising will be selected by GoDaddy and its advertising partners, as appropriate, and you will not be permitted to customize the advertising, or entitled to any compensation in exchange therefor. Please note that the third-party advertising displayed on GoDaddy’s Parked Pages may contain content offensive to you, including but not limited to links to adult content. GoDaddy makes no effort to edit, control, monitor, or restrict the content and third-party advertising displayed on GoDaddy’s Parked Pages, and expressly disclaims any liability or responsibility to you or any third party in connection therewith.
The Respondent must agree to the registrar’s terms and conditions to register a domain name at the registrar. This is a contract of adhesion, the terms of which the Respondent has no power to negotiate.
Neuman helpfully gets to the heart of the matter in how to accurately draw inferences from registrar landing pages. If the disputed domain name is similar to a mark that is so distinctive and so well known that there is no plausible good faith use for the domain name, then that the domain name is monetized on a registrar landing page is part and parcel of the “original sin” of having registered such a domain name to begin with.
The important distinction Neuman makes is that the links appearing on a registrar landing page are not in themselves useful evidence of bad faith. The Respondent’s bad faith, or lack thereof, must be determined by looking at other factors. This distinction serves to reconcile the apparently conflicting positions adopted in the <baringsuk .com>, <comteam .biz>, and genericxenical.net decisions discussed above by considering the panels’ view of the registrar landing pages in these disputes within the context of the specific facts in those disputes.
There is another theme in UDRP jurisprudence connected with registrar supplied landing pages. Even if a Panel accepts that a Respondent is not responsible for the content on the landing page, is the Respondent responsible for disabling the landing page if it contains objectionable links?
This matter arises in the vudu.com dispute, in which “The Respondent expresses regret over the recent PPC use of the Domain Name and says that he has tried to stop it”. The three-member panel with Blackmer presiding said the following:
The Respondent’s protested innocence regarding the sporadic PPC use of the Domain Name is a recurring issue in UDRP proceedings, even if there is no malicious hacking as the Respondent suggests may have occurred. This is because an undeveloped website is often automatically parked by default by a registrar or web hosting company, with PPC revenues going to the registrar or host unless the registrant subscribes to a paid parking program, and some search engines display PPC links alongside default error messages. A registrant remains ultimately responsible under the registration agreement for content associated with the domain name and is always at some risk because of these practices unless the registrant takes affirmative steps within a reasonable time, such as redirecting the domain name to an active site or displaying an “under construction” page. Thus, the Respondent’s arguments against a finding of bad faith use would not necessarily prevail in a case such as this. See WIPO Overview 3.0, section 3.5. Here, however, the issue is immaterial, because the Complainant cannot establish bad faith as required at the time of the registration of the Domain Name.
This discussion suggests a middle ground, where, the Panel does not find the Respondent responsible for, so to speak, creating the mess, but the Panel may hold the Respondent responsible if it fails to clean up the mess “within a reasonable time”.
Panelist Steve Levy adopted a similar approach in the recent painless.com dispute:
Respondent points out a provision in the end-use license agreement of its Registrar that monetized links may be placed on its domain name’s webpage “if such Domain Name is hosted on an Web .com Domain Name server and does not otherwise resolve to an active Web site…” This does not absolve Respondent of responsibility for the content of its site. As noted in the above language, it has the option to resolve its domain name to an active website and so it is ultimately in control of the domain name’s website content.
Here again, Levy holds the Respondent responsible for failing to take down a registrar provided landing page even if the Respondent has no part in creating the content on the landing page.
How reasonable is it to attribute bad faith to a Respondent for failing to timely remove a registrar provided landing page that it had no part in creating? To reasonably attribute any responsibility to a Respondent for a Registrar provided landing page on a non-distinctive domain name where it is plausible that a legitimate use could be made of the domain name, adequate evidence would need to be provided demonstrating that all of the following circumstances are present:
- The Respondent must be aware that the registrar can and will place a landing page on its undeveloped domain name;
- The Respondent must be aware that the registrar will work with an ad-provider to place ads on the landing page to monetize any traffic that goes to that domain name;
- The Respondent must be aware of the Complainant and the Complainant’s products or services;
- The Respondent must visit the landing page and become aware of the specific ads that are appearing on it and must recognize that those ads are targeting the Complainant and its products or services;
- The Respondent must see the same ads or similar problematic ads as are seen by the Complainant, even though the ads may be constantly changing, may be geo-located, may influenced by the prior behavior of the visitor, and may be influenced by cookies specific to the visitor;
- The Respondent must be aware that there is an option deep in the control panel to change the default settings;
- The Respondent must have the means, the knowledge and the time to reconfigure the default settings, while recognizing that the Respondent may not have yet finalized its concept for the domain name, or may have not yet engaged a web designer, or may not otherwise be ready to set up a web page;
- All the prior conditions must be met, such that the Respondent is aware that infringing links are appearing and has the means and the knowledge to take down the landing page, and yet the Respondent affirmatively chooses to leave the landing page in place.
These are the conditions that must exist to support the reasonableness of holding the Respondent responsible for failing to disable a registrar supplied landing page.
It would be nearly impossible for a Complainant to demonstrate with adequate evidence that all of these conditions exist. As Willoughby states in the comteam.biz decision cited above, “It is for the Complainant to prove its case, not for the Respondent to prove his defence.”
Indeed, here too, Neuman’s decision in <meta-statefarm .com> proves insightful. Only one group of registrants is likely to have the requisite knowledge and awareness: professional domain name investors. Neuman recognizes this by stating that the responsibility for the content of a registrar landing page should not be attributed to registrants “who do not buy or sell domain names for a living”.
If the domain name is clearly a cybersquat of a famous mark, such as <baringsuk .com> or <meta-statefarm .com>, then bad faith is found, under the Telstra criteria, regardless of whether the domain name is used or not. The content on a registrar supplied landing page is superfluous to the finding of bad faith. A panel can correctly find that the content of a registrar supplied landing page is not attributable to the Respondent, and yet still have a sufficient basis to order a transfer, as demonstrated by Neuman in the <meta-statefarm .com> dispute and by Blackmer in the genericxenical.net dispute.
When the domain name is non-distinctive and there is not otherwise evidence to support a finding of bad faith, to find the Respondent guilty of bad faith use because of content supplied by the registrar on a default landing page would be grossly unjust.
A gray area is when the respondent is a professional domain name investor. If the disputed domain name has third-party use and appeal, yet ads are appearing on the registrar supplied landing page that target a well-known mark, and the investor leaves the page in place for a substantial stretch of time, can bad faith be attributed to the investor? The circumstances in such a case are likely to be nuanced and fact specific – Was the investor actually aware of the ads appearing on the landing page? Did the investor recently acquire the domain name at auction and take possession at a foreign registrar and is waiting for it to transfer to its standard registrar? One would hope that the investor would respond to the dispute with a full account of the circumstances of the matter so that the Panel could make a well-informed decision.
This review of registrar landing pages, how they work, and the various approaches that panelists have adopted to address them, yields a simple guide for drawing reasonable inferences from a registrar landing page:
With the possible exception of profession domain name investors, it is “unfair” to attribute bad faith to a Respondent for the contents of a registrar supplied landing page.
It could not be much clearer. It is not appropriate in typical cases to attribute any responsibility to the Respondent for the content of registrar supplied default landing pages.
Adopting this approach will have only a salutary affect on UDRP jurisprudence. Panels still have ample evidence to justify the transfer of clear cybersquats. Panels will avoid a miscarriage of justice by finding innocent respondents guilty of bad faith by saddling them with responsibility for content that registrars supply by default for the registrars’ sole benefit.
The <decathlons .org> decision offers a compendium of flawed inferences of bad faith of which the inference from the registrar default landing page is but one of many. Due to the length of this comment, that is the only inference that we will discuss here.
All that we can say with confidence from the evidence presented in the <decathlons .org> dispute is that the Respondent registered a dictionary-word domain name, and that the registrar placed an ad-filled landing page at the domain name that the Respondent had no part in creating. Attributing the ads appearing on the registrar landing page to the Respondent is unjust.
As the panelist community gains a better understanding of the circumstances surrounding the use of the registrar landing pages, and my hope is that this comment contributes to such a better understanding, panelists may give further consideration as to whether the content on a registrar provided default landing page can be fairly attributed to the Respondent.