Domain Name Dispute Assessment Task
lso argues that the respondent has no right or legitimate interest in the domain name, and that the domain name is used by the respondent in bad faith.3 The complainant is seeking the only remedy available under the Policy, namely transference of the domain name in question. The respondent denies that the complainant has a common law tradename and argues that in the event that the complainant proves otherwise, the complaint is denied in its entirety.
The arbitration decisions rests on determining whether or not the complaint substantiates a case of ‘cybersquatting.’4 The term cybersquatting refers to a situation in which a domain name belonging to one party is subsequently used for nefarious purposes by another,5or rather, a case of ‘abusive registration.’6 Essentially, in order to prove cybersquatting, the complainant must satisfy three elements: the domain name used by the respondent is identical or confusingly similar to either a trademark or ‘service’ to which the complainant has an interest or rights. the respondent does not have a legitimate interest or right in the domain name. and the respondent is using the domain name in bad faith.7
Before dealing with the three elements necessary for substantiating the complainant’s case, it is necessary to deal with the trademark issue raised by the respondent. What distinguishes the Uniform Dispute Resolution Policy (UNDRP) from the au. Policy is that under the au. Policy, it is not necessary for the complainant to have a registered trademark. All that the complainant is required to prove under the au. Policy is that he or she have acquired a common law trademark through ‘sufficient evidence of use or reputation in the trademark to justify reliance on a common law trademark’.8 The complainant has provided sufficient evidence of its common law trademark through evidence indicating that Quickileaks has been operating as a well-recognised and accessed online media outlet prior to the respondent’s