On January 16, 2019, a Korean domain registrant with a record of previous UDRP losses registered the domain name "GigaPay․com". Seven months later a fledgling Swedish fintech venture filed a trademark application which consequently went live 11 months after the domain registration did. The domain was recently transferred in a UDRP. The Panel <a href="https://www.wipo.int/amc/en/domains/decisions/pdf/2024/d2024-2028.pdf" rel="noopener noreferrer" target="_blank">decided</a> that it is more likely than not that the registrant somehow had the Swedish venture in mind when registering this domain. Granted, and please note this for the record, there seems to have been several previous trespasses on behalf of the same registrant individual, and the "no smoke without fire" argument may not be entirely irrelevant. This registrant among other examples has previously registered Addidas․com, TwiningsTea․com and&nbsp;GoogleSky․com. Ouch! Perhaps losing a closer call serves this actor right. But let's examine the grounds for the level of surety of foul play on display in this individual case, as opposed to what would be probable to assume, previous history aside. <blockquote>In the decision, the Panel notes that "Normally, panels will not find bad faith on the part of the respondent where the registration of the domain name took place before the complainant acquired its trademark rights, but they have in certain limited circumstances where the facts establish that the respondent’s intent in registering the domain name was to unfairly capitalize on the complainant’s nascent trademark rights, for instance, registration of the domain name shortly before or after announcement of a corporate merger, or further to significant media attention. WIPO Overview 3.0, section 3.8.2."</blockquote> Did sufficient "limited circumstances" occur may therefore be a suitable question. In this case it seems that a "marketing campaign" on Instagram is sufficient basis to infer that an entity in Korea will instantly realize that an entity in Sweden will eventually take serious and moneyed interest in the matching dotcom domain name. This entails several interesting requisites for a domain registrant, one of which seems to be having an Instagram account, and another to monitor all content on Instagram (not just the ones of the accounts you may follow). Furthermore the inference must be that it is possible to successfully do this with the intention to register domains that may become targets for acquisition in the future. (From the basis of what seems to have been on record, it would also be interesting to know if the Instagram "marketing campaign" extended to Korea and whether it was available in Korean. From the decision it is clear that the Respondent requested a procedure in Korean. Most Koreans are not well versed in English. That request was denied.) It seems that a balanced interpretation of the term "media attention" would probably entail some kind of news coverage. I searched the Swedish database of full text articles in major daily press, a database of 27 million digitalized pages, from the 16th century up until today, and there were no entries for "gigapay" (0). In comparison there were 84,946 hits for "microsoft". <blockquote>"Given such announcement and marketing activities, the panel finds that it is likely for the Respondent, which by its admission, trades in domain names as a business, discovered this newly formed business and registered the disputed domain name in order benefit from the association with the Complainant or more likely by hoping to sell it to the Complainant."</blockquote> The Panel then goes on to reveal that it considers trading in domain names to be something that can be "admitted to". How so? There is an aftermarket and UDRP jurisprudence has *never* officially questioned it's legitimacy. There is consequently no inference to be made on the basis of mere activity on the aftermarket, which begs the question why it would be of essence at all to mention it. You can't benefit from the association of something that does not exist. Even if we were willing to concede that the Respondent had remote previous knowledge about the specific "GigaPay" it would also need supernatural insights about which ventures will be successful and which will not. If it did, it would arguably be more likely to be investing in the stock market, or playing the lottery. 1/100 startups fail. Most miserably. The inference therefore falls just short of making things up completely, even if it were true. <blockquote>"In addition, it appears that the Respondent purchased the disputed domain name from the previous owner directly rather than from a register of unregistered or lapsed domain names. This strongly suggests to the Panel that the Respondent specifically sought out the purchase of the disputed domain name, knowing the existence of, and targeting, the Complainant."&nbsp;</blockquote> The thing that "strongly suggests" targeting to the Panel is yet again the way the aftermarket works by design. People buy domains from eachother. Sometimes a venture wants the name they will use in the form of the domain. Other times an investor sees an opportunity, independent of any explicit or specific action on part of a prospective Complainant. This naturally happens more often for identities that are more sought after, or potentially sought after. To summarize, the registration of two social media accounts prior to the domain registration, and some published content on these accounts, counts as sufficient reason to assume that this (granted previously squatting) registrant halfway around the world knew what to "target" and why? And that the merits of the name "GigaPay" were by necessity not enough? "Gigapay" is a name that it is very natural to assume may attract interest, *especially* for someone who "admits" (in the Panel's words) to buying and selling domains on the aftermarket, and overall perhaps not reason enough to abandon the "priority requirement" just like that. There are several trademarks that exactly match "Gigapay". There have been several historical uses that are now defunct. The original registration date of the domain name predates the trademark by more than a decade. What is the compelling reason that a subsequent registration must have had different motives altogether? Couldn't it be the case that the registrant tapped into knowledge about naming conventions and general market conditions and that these subsequently and independently happened to align with those of the Complainant? Any trademark lawyer actually knows that this scenario is both possible and plausible. This is why they generally advise against selecting a contended or descriptive identity. Then again, in a different context such as a UDRP decision, where the pool of clients are in a different position, the conclusion may be entirely different. I would like to think that it would not have been a transfer in case the Respondent had supplied more background before a 3 member panel. But I'm not certain, and I imagine a panel would be significantly far from certain as well. If the aftermarket is not to be considered merely "platonically" legitimate while in reality just being something to be explained away, it might be useful to acquire and apply existing knowledge of how it works and why. Even when bad actors re-emerge in new situations. Names may be valuable, and "GigaPay" is a likely option in general for a business such as Complainant's, something that in a case such as this may be validated by both the Complainant and Respondent selecting it. This is partly why the registration dates are so central to UDRP reasoning. Previously registering "Addidas" and "TwiningsTea" may not be sufficient proof of being equally crooked in every case. There could of course tentatively be some kind of three-strikes-your-out domain registrant black list, and I wouldn't oppose that, but when a case is up for review, it's the case that is up for review, not the individual parties or their history. Furthermore, these kind of "after-the-fact" maneuvers, where businesses may be able to repair whatever damage they may have caused themselves by ignoring the domain name for years, may be detrimental to learning your lesson. The best strategic option is to get the domain first, and in case it is registered, to buy it off the current owner, who most likely did not obsess over your existence at all. (I also think that the complete submissions made by UDRP parties should be made public. It would be easy to obfusciate any personal information that may be deemed potentially damaging. An AI could do it for free, and perfectly. There is no sound argument to the contrary, unless you argue that transparency is a bad thing per se, which would be interesting to learn more about in that case.) -Sten Lillieström- Next Venture <a href="https://www.nextventure.com/buy" rel="noopener noreferrer" target="_blank">acquires</a> taken domains, or helps you <a href="https://www.nextventure.com/find" rel="noopener noreferrer" target="_blank">find</a> a new name identity with the domain available for immediate purchase.

Once a squatter always a squatter?

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