Essay by Mr Gerald M Levine, Part 2
Gerald M. Levine, Esq. is a UDRP Panelist and counsel, and is the author of the Domain Name Arbitration, A Practical Guide to Asserting and Defending Claims of Cybersquatting (2019) and The Clash of Trademarks and and Domain Names on the Internet (2024). He also has an upcoming book with David Weslow on the ACPA.
Help! Someone has registered a Domain Name Corresponding to my Trademark.
Help! I’m being Accused of Squatting on Someone’s Trademark.
PART 2: DEMANDS AND EXPECTATIONS
In Part 1 I pointed out that there was a continuum along which, in considering the merit of claims, the claim moved from certainly clear to certainly unclear instances of cybersquatting. I said that at some point along this continuum certainty moved to a patch which I called “fuzzy” that when reached, having given thought to the totality of facts, panelists have a duty of caution on which side of the line the case stands. Here, I want to take this one step further. “Fuzzy” means a degree of uncertainty that may go either way depending on a critical factor identified by the proof
It must be clear from even a cursory reading of the UDRP that it demands that the complainant prove its case; and when the burden shifts a respondent has a case to answer. Demands and expectation are clearly interconnected concepts. While in the 95% class demands and expectations are always met by complainants. they are never met by them in the 5% class which makes this class a better lens for studying what the demands are and correspondingly what it takes to satisfy them. In this class panelists have weighed the totality of evidence even in default cases where the proof is sufficient to reveal competing narratives.
Wherever there are demands there must be corresponding expectations. To know of one should be instructive in understanding the need for the other. Unless those expectations are met, the party whose burden or shifted burden it is cannot but fail. In proposing that parties should have some learning of the evidentiary demands of the UDRP and able to connect this to the expectations of the panel would seem to be no more than a basic truth.
It may be asked, How does one learn about these expectations for without training it is unlikely to be mentally ingrained? Professionals know it or ought to intuitively from the evidentiary demands alone. We have seen in Part 1 that a party cannot succeed by simply alleging a position or contending a right. Because evidentiary demands and panel expectations are inseparably connected, the intuiting of demands inform a party of the evidence to be marshaled. Of course, the more skillful a party is at marshaling evidence and laying it out the likelier it is that it understands the expectations of the panel.
The evidence panelists expect to receive is of two kinds: it is either direct—by documents, declaration or affidavit of persons with personal knowledge of the facts—or circumstantial. Absent direct evidence, a favorable or unfavorable conclusion may be drawn from indirect evidence, such as the location of respondent to establish actual awareness of the mark or pretextual acquisition of the domain name (Rules 14(b)). For what purpose was a domain name acquired corresponding to a well=known or famous mark? What if the mark is lesser known, has a reputation now, but not when the respondent acquired the disputed domain name, or the domain name is composed of generic or descriptive phrases?
Standing to make a claim of cybersquatting is a low bar. It consists of passing two tests. If the domain name (1) is either identical or confusingly similar to a mark in which (2) the complainant has a right, the complainant has standing to maintain the UDRP proceeding. But low bar is not No Bar.
Complainants succeed in the 95% class by proffering evidence of their claim and in in the 5% class fail when they lack persuasive or credible evidence, or their arguments are such that the very insistence of their rights demonstrate their overreaching of them, all this regardless whether the respondent appears. There is a reason that <pucci.com> is not infringing but <emeliopucci.com> would be (I’ll return to this in Part 3).
How high is the bar? Surprisingly, there are instances in which complainants fail ever where the respond is obviously targeting the complainant. We looked at this first illustration in Part 1 from a different angle. It is an exceptional analysis. It is understood that for suggestive, descriptive or arbitrary marks registered with disclaimers the trademark right is expressed in the entire string of words or letters. The Respondent did not appear in Priority Air Express UK Limited v. Priority Airs Ltd., Case No. D2025-0727) (A. Alexiev) and prevailed; or, rather Complainant lost even though it was being targeted.
The Panel explained that where “all textual elements of the United States trademark, i.e., the words ‘PRIORITY AIR EXPRESS’ were disclaimed,” it follows that if the domain name is composed of only “the first two of these elements [. . .] [<priority-airs.com>] there is no basis for a finding that the disputed domain name is confusingly similar to [the] protectible elements of [the mark].” But for this technical obstacle, the Panel would have found cybersquatting. The analogue of trademark disclaimers are design marks in which the verbal element may or may not independently qualify as a mark.
Where the respondent does appear and argue as it did in Stability AI Ltd v. Loren Heyns / DreamStudio, FA2502002142063 (Forum April 14, 2025) (D. Isenberg, R. Badgley, Ho-Hyun Nahm) it takes on the burden of demonstrating that it has rights or legitimate interests (in other words, rebutting Complainant’s argument under the second element) and that it registered the domain name lawfully (rebutting Complainant’s argument under the third element).
The Complainant in this case made two mistakes: one of proof and one of law, either one of which would be fatal. The Registrant acquired the domain name before the Complainant’s first use of the mark in commerce and on acquisition used the domain name in the operation of its business, thus at the same time establishing rights under Paragraph 4(c)(i) and (ii). The Panel rejected Complainant’s “nevertheless” argument—that “although the Disputed Domain Name was created in 2002, it has been renewed by Respondent more recently, and that such renewal is itself an act of registration” (a debunked theory or retrospective bad faith which I deal with in greater depth in The Clash of Trademarks and Domain Names on the Internet)—on the grounds (cited in many cases) that “mere renewal of a domain name registration by the same registrant is insufficient to support a finding of registration in bad faith.”
Complainants cannot get around this rule by invoking the Anticybersquatting Consumer Protection Act (ACPA). The Panel in James Linlor v. Host Master / McAfee LLC, FA2202001985124 (Forum March 31, 2022) pointed out that
The ACPA has no bearing on the UDRP which operates on its own terms as a conjunctive model of liability. See (“The Complaint further lays out arguments arising under the federal Anticyber-squatting Consumer Protection Act (ACPA) (15 U.S.C. § 1125(d)). These arguments are inapposite to a proceeding conducted under the Policy, which permits the Panel to consider and decide only claims of abusive cybersquatting as specifically contemplated by its terms.”).
Anyone familiar with the UDRP knows that it operates on its own terms as a conjunctive model of liability, but this doesn’t stop some complainants and their representatives from arguing that the ACPA should be considered even though it has no bearing on the UDRP. Just as “the UDRP does not supplant national law” neither does national law have any bearing on UDRP law. I’ll return to this issue in Part 3 in introducing the concept domestication of some theories from national law.
If respondents do not appear in the 5% class, complainants fail for one of four reasons: 1) have no trademark rights, 2) their prima facie case for lack of rights or legitimate interests is rejected, 3) insufficient proof of bad faith registration or use and 4) their claim is outside the scope of the Policy (when, for example, the claim sounds in trademark infringement or contract dispute).
In fact, in the Dream Studio case the 3-member Panel concluded by stating that
To be clear, the Panel expresses no opinion as to whether Respondent’s use of the Disputed Domain Name may be in bad faith (including by causing a likelihood of confusion with the DREAMSTUDIO Trademark), or whether an action by Complainant in a court of law would be appropriate, only that the Policy requires registration in bad faith, which does not exist here.
In a good number of these cases, panelists have found complainants’ poor pleading and ignorance of the law as it applies in a UDRP proceeding astonishing, and some are quite vocal in their criticism as we have seen.
In bringing these several cases onto the stage for inspection, we see that the UDRP is unlike a litigation in a court of law in several ways. For one, it is a summary proceeding, which for those unfamiliar with those demands means that the movant is expected to include in its submission credible evidence to prove its contentions. Complainants are expected to file a fact pleading that includes evidence in support of the alleged facts, rather than a notice pleading of facts sufficient to satisfy procedural requirements.
Complainants either have a case or they do not. In court proceedings, the facts of the dispute unfold in discovery and motions, over time. The UDRP operates in accelerated time. The parties have only a single chance to state their case: a complaint and a response with perhaps a supplementary submission if the complainant is confronted by an unexpected rebuttal by the respondent.
“The Policy and Rules demonstrate a strong preference for single submissions by the parties absent extraordinary circumstances.” Rollerblade, Inc. v. CBNO and Ray Redican, Jr., D2000-0427 (WIPO August 24, 2000) (M. Partridge, D. Foster and E. Poplawski). And, in Cordelco N.V. v. I. Overtoom, D2022-2554 (WIPO September 14, 2022) (W. Leppink, C. Gielen and W. Bettink):
The Panel is not satisfied that such exceptional circumstances exist and, therefore, decides that the first unsolicited supplemental filing by the Complainant will not be admitted. As a general principle, a complainant has “one bite at the apple” and the Complainant could have easily foreseen the defenses as raised by the Respondent.
This and other similar reflections should be taken as warning shots that parties prevail or not by proffering a mixture of evidence, narrative and argument. Contentions and argument alone without proof will never be sufficient; uncontested facts and narrative may be sufficient to draw adverse or positive inferences, and direct evidence conclusive of either bad faith or lawful registration and use will certainly be sufficient; but not allegations or contentions and argument of bad faith registration and use (a conjunctive requirement) in the absence of proof evidencing the merits of the claim for each element.
In practice, on receiving a file from a UDRP service provider, the appointed panelist will examine the record and will ask: “What have the parties given me?” And, the panel will go from there to weighing the evidence that would support a sound conclusion. It will also reject bluster or noise when it sees it as well as the absence of evidence that undermines claims and defenses (silence when evidence is demanded).
In JD Sports Fashion PLC v. Mira Holdings, Inc., Case No. D2025-0375 (W. Leppink, M. Comanescu and M. Kennedy) the Complainant insisted that “It can be inferred that the Respondent registered the disputed domain name with full knowledge, or it should have known, that the disputed domain name was nearly identical with the JD SPORTS trademark,” but the Panel was not persuaded:
The Complaint is silent about the fact that, for decades, the disputed domain name was registered and used by a company called JDmag.net, as a website that featured “Sports News”, which use was apparently not confusing to consumers.
[. . .]Holding a domain name that is a common name used by multiple companies and individuals is not a bad faith registration. In fact, the Respondent had zero knowledge of the Complainant until the filing of the Complaint. The Respondent is based in Minnesota in the United States, and the Complainant is in the United Kingdom. Panels have found that respondents should not be responsible for searching the world for possible foreign trademarks.
Panelists would expect that before launching its claim a mark owner would ask itself, “What proof must I marshal to persuade the panel of the merits of my case?”. It should also know that facts alleged are not facts proved, an expression of the noise that I earlier mentioned.[1] See for example SidePrize, LLC d/b/a PrizePicks v. Andrew Bird / andy bird ltd, Claim Number: FA2502002140139 (C. Kuechenmeister) a default case. The Panel taking note of the allegations explained:
All of that may well be true and if it were supported by competent evidence it would have a material impact upon the resolution of this issue. These allegations, however, are unsupported by any evidence. Complainant offers the Panel no competent basis for any findings as to the extent of notoriety, of general public awareness of its mark as a source indicator for Complainant’s products or services.
But this Complainant has filed a string of complaints and has generally been successful. Why are C. Kuechenmeister and D. Sorkin alone in denying these particular complaints while in other complaints the relief is granted?
The answer, I think, lies either in some evidence that undercuts the complainant (while the Respondent did not appear in the first case, the domain name resolved to a website that indicated a different service) or, as in SidePrize, LLC d/b/a PrizePicks v. Copamar Partners / Copamar Partners, S.L Claim Number: FA2502002141536 (also on default) Panelist Sorkin questioned the entire premise of the Complainant’s argument:
Initially, the Panel considers it important to express its frustration with Complainant’s inclusion in the Complaint of allegations that appear to be unsupported by any discernable evidence or factual basis, prefaced by the phrase “upon information and belief.”
…
The Panel is also troubled by Complainant’s reliance upon constructive knowledge as a basis for bad faith. Under the Policy, constructive notice is insufficient; bad faith requires at least an inference that the Respondent had actual knowledge of Complainant or its mark when registering the domain name.
Readers may wish to compare these findings with, for example, SidePrize, LLC d/b/a PrizePicks v. Cesar Saenz Claim Number: FA2502002141535 (J. Bridgeman), to form their own conclusion, but it does illustrate that “clear” can be a moving target.
Clearly, it can never be enough to assert a claim on the speculative notion that the respondent’s registration and use is in bad faith without evidence that it is so. The point is illustrated in Wasteland Inc. v. Monica Dimperio / The MidWasteland Claim Number: FA2501002134687 in which the Panel (D. Bernstein) found it “shocking” that complainant could advance an argument that had no chance of success. Neither in this particular case did the Panel accept respondent’s equitable argument of laches (even though the Panel ultimately dismissed the complaint) because “the consensus view is that Panels should not recognize laches as a bar to UDRP cases.”[2]
Other panelists have argued that laches should be recognized if in the interim and over a passage of time the respondent has established a bona fide business distinct from the complainant. In fact, this understanding of laches is built into Para. 4(c)(i) if “before notice” which is an affirmative defense if respondent is operating a bona fide business (which includes speculative acquisitions of domain name for resale which was not always the consensus view of speculators).
This is as much as to say that mark owners have the burden of proving their cases, and where the evidence presumptively supports their claim, the burden shifts to respondents to rebut by demonstrating either they have rights or legitimate interests or that they have registered and are using the disputed domain names lawfully. A persuasive rebuttal of the rights and legitimate interests element (Para. 4(a)(ii)) is conclusive in the respondent’s favor. If the panel bypasses the second element which it sometimes does the respondent has no shifted burden to prove lawful registration or use to disprove the assertion of conjunctive bad faith, but this does not counsel that it remain silent in responding to complainant’s Para. 4(b) proof (third element Para. 4(a)(iii) of the Policy), where for example the domain name predates the trademark or the trademark is composed of generic or descriptive words or phrases.
At issue here are several related circumstances. Even if a mark owner can establish standing, it has no actionable claim if the mark postdates the domain name. And even if it has an actionable claim, the timing of its reputation may be a critical factor in determining either or both the second and third elements of the Policy.
Commentators have pointed out instances in which panelists fail to recognize that non-use of domain name does not necessarily infer registration in bad faith and have transferred domain names for non-use based on a misreading of Telstra Corporation Limited v. Nuclear Marshmallows Claim No. D2000-0003 (A. Christie).[3] The Panel’s construction in that case does not condemn non-use of domain names, but only where it is inconceivable to use the mark without infringing the owner’s statutory rights.
If the registration of a domain name corresponding to a mark can conceivably be used without infringing that mark it cannot have been registered in bad faith; but what if the domain name can conceivably be used without offending the complainant’s mark but the evidence is conclusive of bad faith? In that event the Telstra rule applies because the respondent is targeting the complainant for the goodwill value of its mark. Acquisition of a domain name that could in other circumstances be in good faith can be contaminated by its actual use which may then support the conclusion of bad faith registration.
We find in the 95% class that a good number of respondents have appeared by informal emails and failed on credibility grounds. This failure is not surprising since there is generally no accompanying evidence in support of respondents’ defenses. But in the 5% class which incidentally may include respondents responding with informal emails, there is a dueling of credible and incredible which often extends beyond contentions to the speaker’s persona.
For example, in RENU MEDISPA, L.L.C. v. Angela Sattler / Aesthetics, FA250300 2143814 (Forum April 28, 2025) (S. Levy, D. Bernstein and S. Franklin) the Panel found the Complainant lacked credibility but found the Respondent persona and proof credible:
Respondent claims, through signed declarations, that it and its owners had never heard of Complainant at the time that it adopted their business name and domain name in 2018. That assertion is credible given that Respondent operates in a geographically separate market which is “345 miles away (a 6 3/4 hour drive) from Complainant,” and that the RENEW name is a commonly used term in the aesthetics and medical spa industry, as supported by Respondent’s evidence.
This is typical where complainants rely on contention and argument.
In the 5% class, it is often bluster not proof that sinks complainants. This is a persona issue and a losing strategy. Of those complaints dismissed (some of which should never have been brought) the reasons are generally obvious: complaints plead “on information and belief” which is not evidence at all or they allege a catalog of offenses which are not supported by evidence.
Notably also in the 5% class, complainants lose despite representation for two reasons: the first is that not all counsel are equally capable and sometimes they may have the unenviable task of prosecuting claims that cannot possible succeed. As a US federal judge humorously put it in a 2015 case: “There are good cybersquatting cases and there are bad ones. And this is really one of the bad ones.”[4]
The domain registrant in that case was ably represented by counsel well-versed in both UDRP and ACPA law while plaintiff’s counsel should have advised its client that it didn’t have a case. Not only was the domain name built on a descriptive phrase, Officespace Solutions, but the trademark postdated the registration of the domain name.
For example, the Complainant in Floor Covering Associates, Inc. v. David Harris / E Flooring Deals Claim Number: FA2502002139497 (D. Lyons) has a registered mark for EFLOOR.COM.[5] Respondent did not appear. Here, as in many cases in the 5% class, the Panel eked out the competing narrative. Just as there is confusing similar there is also similarity that is not confusing. The Panel stated that it
is not moved by Complainant’s submission that the dominant and memorable portion of the domain name is EFLOOR. The prefix “E” (or more frequently, “e”) is arguably even less inherently distinctive than “.com”. Moreover, EFLOOR is not the trademark, even when “.COM” is disregarded or heavily discounted and, in context, EFLOOR makes less syntactical/grammatical sense than either the trademark – EFLOORS – or the domain name, EFLOORING. Furthermore, that differentiation is underscored by addition of the word DEALS which, albeit descriptive, nevertheless completes an intelligible, nominative, message – e flooring deals – not carried by the trademark.
In the memorable words of the US Supreme Court in BOOKING.COM “[w]hen a mark incorporates generic or highly descriptive components, consumers are less likely to think that other uses of the common element emanate from the mark’s owner.”[6] This insight which has a long history in trademark infringement law was early carried over to the UDRP.
Of the cases within the 5% class, a good number of complaints, in the region of 250 a year (of that number approximately 15% are dismissed with sanctions of reverse domain name hijacking) suffer that fate because complainants rest their cases on magical thinking that contentions and argument are substitutes for evidence. But just as in the 95% class, there are numerous instances that the outcome is obvious from the record and others in which because of the uncertainty the complaint is denied for the reasons I discussed in Part 1: if there is doubt the benefit goes to the respondent.
I mentioned earlier that the 5% was a better lens for studying demands and expectations, and now I’d like to enlarge the observation by extending it to the range of issues. There are a far wider range of issues in the 5% class than in the 95% class where the sole issue is limited to conjunctive bad faith. The reason for the wider range of issues follows from the wider range of facts that must be considered, not simply bad faith but the reasons for the good faith or failure to prove bad faith.
I draw my examples of this wider range from 2024 and 2025 cases which I identify simply by the domain name and link them for easy access to the decisions. Issues include:
1) Claiming exclusivity of marks composed of words drawn from the cultural storehouse (common family names <alimonti.com>), (historical building names <alhambra.com>), (generic combinations <lovecam.com>, <judiciaryprocessserver.com>,) (parts of speech <young.com>), etc.);
2) Claiming unregistered rights or registration on the supplemental register but failing to adduce evidence of secondary meaning (<dailyworkouts.com>, <thorntailhardagave.com>);
3) Claiming cybersquatting where the facts point to trademark infringement or dilution (<healthyhomeexperts.net>, <theurinators.com>);
4) Failing to support a prima facie case that respondents lack rights or legitimate interests in the disputed domain name <eisco.com>, <cronosgroup.com>, etc.;
5) Claiming rights to names used by others to market their own goods or services (<culturedesign.com);
6) Claiming rights postdating the registration of the domain name in issue (<gsf.com>, <wakefit.com>, <ekart.com>. <armorbank.com> etc.);
7) Failing to offer evidence of reputation of the mark when the domain name was registered (<diamondpoint.com>);
8) Failing to offer evidence that the registrant had the complainant and its mark “in mind” and targeting it (<hairdo.com>, <pitstop.com>, etc.);
9) Claiming that constructive knowledge of a mark is sufficient evidence to establish a legal basis for cybersquatting (<victorycapital .com>, <seekpersonnelstaffing.com>, <culturedesign.com> etc.);
10) Offering proof of bad faith use but failing to offer proof of bad faith registration (conjunctive requirement) (<cyber nautics.com>);
11) Negotiating on price before filing complaint (“Plan B”) (<jswone.com>),[7] and
12) Claiming the demanded price is excessive or out of bounds for domain names with no fixed associational right to any particular mark owner.
When a complainant asserts a superior right it is saying the words or combination or even characters have a distinctive association to its mark, alone. The stronger the mark in the marketplace the truer this is. For registered or unregistered weak marks such as the those illustrated above more proof is demanded.
What is “sufficient” evidence is within the discretion of the panel and it is only on its exercise can it be said that the discretion is proper. Panels will consider 1) the distinctiveness of the mark and its linguistic composition, 2) its reputation not on filing the complaint but prior to the registration of the allegedly infringing domain name, 3) its status in the marketplace, whether it is an international brand or local to national or regional markets, and other considerations that would support infringement; and 4) whether the complainant is alleging registered or unregistered marks. There is a great deal to take into account which unless placed in the record will be rejected as sufficient evidence.
On close examination of panel decisions, one finds two kinds. The first simply informs the parties why one prevails and the other loses, and I would say that a good number of decisions are of this kind and they are generally found in the 95% class. They may do the job of adjudicating disputes, but are not instructive or educational of the demands and this is a loss to readers (and even the parties themselves) to understand precisely the reasons for the outcome of the dispute.
For example, in Law School Admission Council, Inc. v. True Magic LLC Claim Number: FA2501002137886 (D. Osborne) a default case for the string of letters <lsac.com>, the Panel’s determination does not rest on any discernable evidence since it draws an inference of bad faith from nothing that can be found in the decision.[8] There can be no conclusion of bad faith registration or use where the only “evidence” is that the domain name corresponds to complainant’s mark. In this regard, panelists can be faulted[9] for not giving parties the rationale and proof of their decision.
The other kind does something more. The Panel in Insight Global, LLC v. Clement Odongo, Core Insight LLC Case No. D2024-2630 (G. Nahitchevansky) explains
What is lacking in this proceeding is evidence showing that it is more likely than not that Respondent’s aim in registering the disputed domain name was to profit from or exploit the Complainant’s trademark. Indeed, it is worth reiterating that there is no evidence that directly shows that the disputed domain name was registered and used to take advantage of Complainant’s claimed rights.
It offers instruction and education to non-parties, representatives, and other panelists as to the evidentiary demands that must be met to prevail and insight into applicable law in that and other circumstances.
The first generation of panelists were particularly good at establishing the principles that I have been discussing and in advancing a jurisprudence, not merely one-off decisions. As I will argue in Part 3 it is they who have built the jurisprudence.[10] I do not find it necessary to consider what may have been if panels had adhered to other influential panelists rather than in those that were in fact followed. In Pick Enterprises, Inc. v. Domains by Proxy, LLC, DomainsByProxy.com / Woman to Woman Healthcare / Just Us Women Health Center f/k/a Woman to Woman Health Center, Case No. D2012-1555 (R. Lyon) the Panel admonished the complainant for not being familiar with “clear policy precedent.” It noted further that “[t]he Policy has been in force for more than a decade and the thousands of cases decided under it now constitute a workable body of (to use a legal term) precedent.”
What is it about this “workable body” that parties should be familiar with in filing or responding to a cybersquatting claim?
TO BE CONTINUED . . . PART 3: HOW DID A UDRP JURISPRUDENCE COME TO BE BUILT?
[1] Commentators have noted that panelists sometimes err in drawing inferences from insufficient proof. That there is no appeal mechanism within the UDRP has caught the attention of a four member exploratory group consisting of Steve Levy, Georges Nahitchevansky, Zak Muscovitch and Nat Cohen authors of “a limited and focused package of proposals” to improve the UDRP system. The proposals deserve careful attention. I have reviewed this challenge in Clash of Trademark and Domain Names on the Internet (Legal Corner Press 2024) and it will be examined in greater detail in my forthcoming book with David E. Weslow Cybersquatting and the Law: A Guide to Protecting Rights Under the Anticybersquatting Consumer Protection Act scheduled for 2025/2026.
[2] There are disagreements on this issue and it’s not clear about such a consensus as two influential commentators have argued. See discussion by Nat Cohen and Zak Muskovitch, available at https://circleid.com/posts/20180115_re_examination_of_the_defense_of_laches_after_18_years_of_the_udrp.
[3] Hear Doug Isenberg’s interview with first generation panelist A. Christie the author of the Telstra decision.
[4] Office Space Solutions, Inc. V. Kneen, 15-cv-4941 (S.D.N.Y. July 14, 2015) (Defendant represented by K. Bernstein and J. Berryhill).
[5] Dot com trademark was also an issue in Panamerica Trade Inc dba Strip-Curtains.com v. Nathaniel Hofer and Simon Decker. CIIDRC-24521 (G. Levine, .C. Kowarsky, R. Rivas).
[6] United States Pat. & Trademark Off. v. Booking.com B. V., 591 U.S. 549, 562, 140 S. Ct. 2298, 2307, 207 L. Ed. 2d 738 (2020). The implications of this decision are discussed in a video found at https://domainsherpa.com/booking-com-tm/#video (S. Lieberman, K. Bernstein, Z. Muskovitch, and thoughts on how this may impact domain valuations from Andrew Rosener). Hear also Mr. Muskovitch’s informative conversation with David Bernstein about the Booking.com decision, https://domainnamewire.com/2020/11/02/booking-com-and-cybersquatting-dnw-podcast-310/.
[7] A useful guide was prepared by panelist Steven M. Levy, Esq. published in the Internet Commerce Association’s weekly Digest of Cases dated June 18, 2024: https://www.internetcommerce.org/blog/how-to-lose-a-udrp-case/.
[8] See commentary on this issue in ICA Weekly Digist for March 11, 2025.
[9] In saying this, it should also be remembered that the Panel is expected to file its decision 14 days after receiving the file. It does not have the luxury of putting its decision to one side for reconsideration on second look at the evidence.
[10] Hear T. Willoughby’s lecture on his experience in adjudicating disputes as one of the first generation of panelists, https://www.youtube.com/watch?v=dPleS9kdViQ.