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November 5, 2010 / Nate Harris

The UDRP and Pay-per-click Link Farms

For many UDRP panels, the fact that the respondent’s domain name resolves to a sponsored links page is evidence of bad faith. When some of those links are to competitors of the complainant, it’s considered almost per se bad faith. As Bret S. Moore points out in a great post at udrp-attorney.com, this presumption of bad faith ignores the reality that such links may be unintentional. In many cases, search engines or other entities may generate links to competitors by default according to business logic rules. It is up to the domain owner to actively exclude those links. Judging from the number of UDRP decisions that deal with this issue, many don’t go to the trouble.

Mr. Moore analyzes the recent WIPO decision of A.D. Banker & Co. v. Domain Invest (WIPO Case No. D2010-1044), where no bad faith was found despite a page on the respondent’s website that linked to competitors of the complainant. The Panel credited the respondent’s explanation that it had acquired the webpage only two days prior to the filing of the UDRP complaint, and had taken down the links as soon as it learned of the complaint.

Mr. Moore offers some concluding advice that would-be complainants and domain owners alike would do well to heed:

Once again, if you’re running sites like this, it’s probably wise to ensure that trademarked terms / companies don’t show up on the landing page, at the very least. And if you’re a brand owner and you’ve got problems with these sorts of sites diverting traffic from your business, you can see what sort of evidence you’ll need to collect to prevail.

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