UDRP panels will sometimes have to make do with a rudimentary claim as decision support. Furthermore, it is not uncommon that Respondents, well, don’t care to respond, and the interpretation is thus made dependent on the contentions of the Complainant alone. However, this rarely results in a panel that concludes that the case can not be decided. Instead, the panel may be inclined try to find atleast something to justify a decision with. This produces borderline cases that do not incorporate widely known brand names, and that hinge on whether the domain name registration is more likely than not to have had the Complainant in mind. The legacy way to do that is to look at the features of the name and assess how ”distinctive” it is. The test applied has distilled into the question if the contents of the domain name is to be considered ”standard language”, and more precisely, whether the lexical items within it can be found in a dictionary or not. Sometimes, the panel will even argue that this ”standard language” must also be applied in the "headword" dictionary sense, to rise above suspicion. Arguably a quite expression-limiting injunction. In the UDRP case&nbsp;Solverde, S.A. v. Rojas Espinoza, Servicios de Lexicografia S.A. / Pierluigi Buccioli, Turn Invest Group Ltd Case No. D2020-3138, this interpretative conflict rises to the surface. Two panelists concur that&nbsp;”The Panel does not consider SOLVERDE to be a dictionary word or phrase. SOLVERDE is a distinctive trademark and not a descriptive or generic term. It is correct that SOLVERDE consists of two dictionary terms in Spanish language (sol, verde). However, the composite term “solverde” is in the Panel’s view not descriptive or generic. There is no “green sun” and to best of the Panel’s knowledge “solverde” is neither a dictionary term nor a common expression.” One panelist disagrees with this interpretation.&nbsp;”A registrant is entitled to use a generic word in whatever way it wishes, sell it or even not use it at all, provided that it does not act inimically to the interests of a trademark owner or engage in any other improper conduct, which the present Respondent has not done.” The logic behind this ”standard language doctrine” may be the following: If a domain corresponds to a dictionary word, it can not be made sufficiently likely that the registration was targeting the TM. A dictionary word is recognized as part of our shared arsenal for expression. As long as there is no targeting of the Complainant and it’s rights involved, it is therefore deemed natural that a domain consisting of ”standard language” finds appeal, independently of any existing arbitrary TM’s. But there is more to our shared arsenal for linguistic expression and comprehension than ”dictionary words”. Meaning is de facto not something that is reserved for dictionary entries and does not magically appear with the stamp of approval from a dictionary committee. Another case among many where the decision hinges on an assessment of the meaning of the domain name, and how likely it is that the domain was registered based on this meaning as opposed to an act of targeting the Complainant, is&nbsp;Goodr LLC v. Michael Rader, Brandroot. Case No. D2018-1171. ”In the Panel's view, whether the term "goodr" is a descriptive term is questionable. The term "goodr" does not appear in the dictionary, and the term "gooder", which Respondent asserts "goodr" plays upon, is likewise not a dictionary term.” It would seem that the reluctance of the panel in this case to recognize that a meaningful and intuitive play on the word ”good” can have general value outside of the realm of the field of commerce staked out by Complainant, is not very sensible. In the words of the objecting panelist in the&nbsp;Solverde&nbsp;case mentioned:&nbsp;”The word clearly invokes the sun and the colour green and that was presumably the reason the Complainant chose the word to describe its holiday resort and it seems to be the way in which the Complainant also uses the word in its advertising. The Complainant itself therefore seems to regard the combined word as having a generic meaning and the Respondent is doing no more than giving it the same meaning.” To nuance the discussion, and at the same time underline the ambiguity in application of the "non-dictionary argument", UDRP panels sometimes do swing the other way with similar facts at hand. The Panel in the recent Limble Solutions, Inc. v. Domain Admin, Alter.com, Inc. Case No. D2022-4900 case comes to a different conclusion. When this panel faces arguments that the contested name "Limble" is not a "dictionary word" - it is not given sufficient weight: "Respondent’s evidence also shows that its “brandable domain marketplace” business, described by Respondent as the sort of domain name business where it had to be on the lookout for memorable domain names to buy, develop, and resell at high prices because startup businesses are in the market for memorable domain names and would be legitimately attracted to a name like the Disputed Domain Name for its intrinsic value as short and memorable for businesses, which memorable terms may be very limited in availability in today’s market." It may still be a neglected fact that over the past several decades, a market for domain names as prospective business identities has developed. Even though perhaps a majority of the names on that market are merely literally descriptive to the point of being unsuitable for use as source indicators, many, like most units of language, are capable of multiple use cases. On a market for prospective brand name identities, appealing name features influence supply, demand and value. These appealing features are not limited to dictionary status or usage in line with dictionary meaning. To the contrary, features such as the very distinctiveness sometimes argued to corroborate bad faith, carry a generic value in that it enables efficient naming, and as a consequence promote TM eligibility and scope in general. Accordingly, short and phonetically efficient names that are not limited to literal description are coveted assets. But most brand names are not ”inherently distinctive” in that they don’t signal anything at all in terms of meaning. They are of a suggestive kind, and play on metaphor, metonym or connotation to convey and evoke a message in line with a persona. Furthermore, building blocks such as morphemes and phonemes carry meaning, and intuitive neologisms, compounds and contractions can capture a very descriptive, albeit novel way to convey a commonly intelligible significance that is of value in brand name context. Naming conventions and trends also regulate the likelihood for a name to find appeal. Beside the fact that language that is not in the dictionary can still be meaningful, natural language is always contextual. Brand names are similarly often meticulously paired with imagery or logos that can put the effect to which the name is used in relief. Other types of ubiquitous cues and leads derived from circumstance will always guide human interpretation. The effect of using the dictionary as an arbiter for assessing the likelihood of the existence of bad faith is something of a paradox. On one hand, UDRP panels sometimes explicitly recognize that domain names can be registered by anyone and sold by anyone, for any price. In the instances where UDRP panels have been pressed on the matter, there has never been an explicit ban of trading in domain names. A secondary market has legitimacy as long as it can not be found in the individual case that targeting is more likely than not. At the same time, it is apparent that the very features that create market appeal for a name are in fact used in an argument for illegitimacy. UDRP panels may need to revise their understanding of the market for domain names, and recognize that names can have appeal because they are names and not literal descriptions limited in use to the literal sense. Certain features of names make some names more appealing than others, irrespective of what can be found in a dictionary. -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.

UDRP-panels and the ”non-dictionary” argument

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