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Law Does Not Establish a Duty but Failure to Do So May Be Seen as Bad Faith

HE QUESTION OF what evidence is sufficient to prove bad faith adoption of an infringing trademark has been discussed in numerous cases over the past few years and is the subject of much legal commentary. A recent Administrative Panel Decision from the WIPO Arbitration and Media Center in the matter of Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384 (2002), held that complainant Kate Spade was entitled to the transfer of the domain name “jackspade.com” in light of the respondent’s bad faith in registering and using the same. While finding that the respondent’s conduct did “not bring it squarely within any of the illustrations of bad faith registration and use” set out in the Uniform Domain Name Dispute Resolution Policy (UDRP), the panel held that the respondent’s failure to conduct a trademark search prior to registering the domain name, among other factors, constituted evidence of bad faith.

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