Study On Bad Faith In Domain Name Disputes—in A Comparative And Empirical Way

In domain name disputes,if it is deemed to constitute cybersquatting,under normal circumstances,the domain name registration time is after the complainant’s trademark rights arise.However,after the panel in 2016 “We Chat Domain Name Cas” ruled that “previously registered domain names constituted malicious registration and use of later trademark rights”,it triggered intense discussions on this type of atypical cybersquatting in the academic and practical circles.This article examines the same type of cases,that is,when the original domain name registration time was earlier than the trademark right generation time,and the respondent was assigned(renewed)or used later than the trademark right generation time.Does it fall under the third element of the UDRP? It is the key,based on the judicial practice and the textual interpretation on UDRP("Uniform Domain Name Dispute Resolution Policy"),to determine whether a disputed domain name belongs to this type of case.This article analyzes bad faith under the third element of the UDRP(that is,"your domain name has been registered and is being used in bad faith")in a comparative and empirical way and comes up with its own point of view.Bad faith must be examined both at the time of the registration and use of a disputed domain name,but the registration can be extended to the transfer and renewal;bad faith should be understood as "know or should have known",and certain defenses that do not constitute bad faith be excluded.This article can be divided into three parts:The first chapter summarizes the status quo of applhying the third element of UDRP to such cases and the difficulties encountered.The current situation includes the status of UDRP and its third element in domain name dispute rresolution,and points out the three contentious issues in the application.The second chapter focuses on analyzing how to identify the “registration and use in bad faith” under the certain circumstance.The author believes that both“registration” and “use” are necessary for judging bad faith.At the same time,determine the connotation and extension of registration as well as the form and time of “use”.The third chapter articulates how to identify the “bad faith” in the third element.First,it is concluded that the connotation of malice in the UDRP should be “knew or should have known”.Then the author contends that whether it constitues bad faith be judged from the perspective of trademark well-known degree and domain name usage.Finally the author points out the divergence of presuming bad faith defence between the domain name dispute resolution and the court proceedings.