Auto-generated websites equal bad faith under the UDRP

Two weeks ago, in Is Godaddy a Mass Cybersquatter?, I discussed pay-per-click sites: The ubiquitous “sponsored links” pages that have become the cockroaches of the internet. Perhaps one day they will evolve into useful search tools, but today they are not even close.

Domain speculators and cybersquatters alike (the two terms are not synonymous) re-direct their domains to “sponsored links” pages. They are simply playing the averages. If you can register a domain name for $8 a year, then all you need to do is
generate $8.01 per year in pay-per-click fees to make it a profitable endeavor. Many make much more than that, but you get the point.

The links on these pages are usually generated automatically. I’m not bright enough to understand the algorithm, but some computer program, somewhere, takes a look at the domain name and matches it up with keywords, then provides sponsored links on the pay-per-click page. For example, motoguzzi.us brings you to a page that has links that refer to Moto Guzzi motorcycles. However, that doesn’t mean that Moto Guzzi paid for the links. Someone else may have simply bid for those keywords. I am certain that the registrant of motoguzzi.us hasn’t so much as seen the site in a long time, if ever. He most likely didn’t choose the links that are there.

This lack of direct control is often a central theme in a cybersquatter’s response to a UDRP complaint. At least one UDRP panel bought this argument. See Admiral Insurance Services v. Dicker, WIPO Case No. D2005-0241 (“the Panel accepts that the terms under which Google makes its Adsense advertisements available do not permit the Respondent to control them . . .”). However, that panel included David Sorkin, which makes its findings suspect. (He rules for complainants less than 1/3 of the time, and has earned more than $100,000 in UDRP panelist fees by making gullible decisions like this. Do the math).

The prevailing trend is that the “willful blindness” argument is not valid, as illustrated in the recent decision: State of Florida, Florida Department of Management Services v. Bent Pettersen, WIPO Case No. D2008-0039.

Even if the content of that portal website was generated automatically – such that the Respondent was not directly aware of its precise content – the Respondent must, at least, have been aware that the website would be determined by search terms relating to the value of the mark that he wished to exploit. This would appear to be the natural result of ‘parking’ the disputed domain name at the website. Further, the Respondent is ultimately responsible for the content of the website within his control. As such, the Respondent could not avoid responsibility for the automatic generation of links at the subject website.

In coming to this conclusion, the Panels referred to another recent case, Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912.

The Respondent is responsible for the content of any webpage hosted at the disputed domain name. It cannot evade this responsibility by means of its contractual relationship with the Registrar. The relationship between a domain name registrant and the Registrar does not affect the rights of a complainant under the Policy (cf Ogden Publications, Inc. v. MOTHEARTHNEWS.COM c/o Whois IDentity Shield/OGDEN PUBLICATIONS INC., Administrator, Domain WIPO Case No. D2007-1373).

See also Alpine Entertainment Group, Inc. v. Walter Alvarez, WIPO Case No. D2007-1082 (“[h]owever the content of a website may be determined under such arrangements, an assertion of descriptive rights or legitimate interest by a Respondent does not sit comfortably with a denial of knowledge or responsibility for the presence of said content.”); Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415 (citing AEG v. Alvarez).

5 Responses to Auto-generated websites equal bad faith under the UDRP

  1. Assuming that populating a website automatically with various links equals bad faith use of a domain name, does it prove anything about bad faith registration? What if the domain name consists of descriptive or generic words, and the links are in the field suggested by those words? The complainant must still prove bad faith registration, which may be difficult in the case of a weak, descriptive mark.

  2. Such is true. I’m not sure that the sponsored links necessarily show bad faith registration. It might, on the other hand, be evidence thereof… or at least lend weight to that argument. But no, I don’t think that it is an automatic, “badda bing.”

    A weak mark… you may have a point. For example, lets say someone registered http://www.apple.asia (still available, apparently) and there was a sponsored links page with links to pages about apples, it seems like it might not be bad faith.

    On the other hand, if the sponsored links were to pages about computers… that’s another story.

  3. I think the upshot is that respondents can simply rely on the “I do not control what links appear on my page” as an absolute defense to the bad faith argument. Domainers need to be aware that the software which generates the ad-links on their pages can hurt them in UDRP proceedings. The software is most likely to serve up ads similar to other domains which already have entrenched traffic. This will make those domains appear to be diverting traffic from established web sites, some of whom may claim prior trademark rights.

    If the domain is descriptive, but is also similar or identical to an established domain used by someone who could claim trademark rights by either registration or secondary meaning, the domainer has to make a decision. He/she could put up an ad-link site and risk and UDRP transfer. If the domain has strong value, the better decision is to simply hold it in the portfolio without content. A blank web site, or one offered generally for sale (and not specifically to the trademark holder), is pretty safe from transfer assuming it is truly descriptive.

  4. >The ubiquitous “sponsored links” pages that have become the cockroaches of the internet. Perhaps one day they will evolve into useful search tools, but today they are not even close.

    Marc,

    Maybe your occupation causes you spend too much time on the wrong websites. The sponsored links that you see on sites like motorcyclegear.com are often the same as you would see at a major search engine. When you are looking to buy, the sponsored links are usually the quickest way to find a product or service. You are less likely to get sidetracked into a non-commerce site that wastes your time.

    Nice bike! If it’s not too embarrassing for you, want to go riding with an old man on a Gold Wing sometime?

  5. You ride? Awesome! Yes!

    Right now, I’ve been off the bike for recreational purposes a bit… I ride it to work, but not for fun. My fiancée is pregnant, and I spend my free time getting her crackers, running to the grocery store, wiping her forehead with a towel, etc…

    But, I definitely need a social ride! You ever go to the Steak And Shake bike night on Thursdays? 436 and Aloma at 7-10 a lot of bike guys get together.

    As far as my occupation goes… heh… yes, maybe I do see the jaded side of things.

    Regarding “motorcylcegear.com” — as a example… that’s not necessarily so bad. It is generic or super descriptive… so anyone who goes there is looking for “motorcycle gear.” All is well in a trademark sense.

    But, when it is motoguzzi.com, I think we agree that we have another story.

    I see your point about the direct nav. model. But, I think that the direct navigation model is, at present, still needing to evolve a little bit before it works effectively.

    I see the theory as valid… if I search for motorcycle gear on google, I might wind up at a blog on motorcycle gear, or a non commercial site… and darn it, I want to buy motorcycle gear, not read about it.

    The problem is that, at present, these auto-generated parking pages seem to run on a theory that he who bids the most from placement goes to the top. But, the user must cruise through popups and irrelevancies in order to get to wherever he or she was going in the first place.

    What I like about them is that it takes the power away from the “googlerithm” and gives it to the marketplace.

    But, the googlerithm and other search engines at least give you some benefit from the “wisdom of crowds.” Thus, I don’t see the utility in “find something interesting” or “find what you’re looking for” pages… because i have not, to date, ever found one that sent me anywhere interesting, nor anywhere that was close to what I was looking for.

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