Maybe I should expand on that answer a bit.
The full decision on the motion to dismiss and sanctions is here:
https://www.courtlistener.com/docket/64919795/blair-v-automobili-lamborghini-spa/
First, it's important to realize that most civil lawsuits settle. In all likelihood, there will be no winner. If the parties reach a private agreement of some kind, they will then file a dismissal of the case with the court and we will typically not know on what terms that may have happened. So, the most likely outcome is that whomever ends up with the domain name will be whomever the parties agree to have it. The settlement may be confidential, so we will not know its terms. Typically, if the parties agree on a transfer of the domain name, then the trademark claimant will likely insist that the domain registrant discontinue any use of the claimed mark.
Secondly, trademark disputes tend to be fact-intensive. On top of that, the ACPA hinges on intent. That can make it difficult to prevail on summary judgment - i.e. a pre-trial judgment in which all of the parties agree on the facts and so the disagreement is essentially about how the law applies to them - because it can be difficult to prove intent directly. One of the functions of juries is to assess credibility of witnesses, so a lot can depend on how a witness comes across to a jury.
The arguments along the lines of "there's a bunch of businesses/people using that name" are helpful, but do not constitute an entire defense. There can be a dozen different owners of a trademark for "EXAMPLE", but if a jury can infer on the evidence that I had one of them in particular in mind, then it doesn't really matter how many others there are. In other words, if I had intended to register the domain name with an idea that I would profit from one of those dozen trademark owners in particular, then that trademark owner has a cybersquatting claim against me.
But the notion that the domain name has value because it is multiply used, a surname, etc., aren't really relevant to what the stated reasons were for acquiring the name anyway. The defendant (Lamborghini) already has a wealth of direct statements from the plaintiff to use as evidence, since the UDRP was self-defended. The UDRP was defended on the basis of "Lambo" being a name by which the domain registrant is commonly known. As indicated in the UDRP decision:
The Respondent is known as “Lambo” on the Internet and in real life and has a history of dealing in, and developing, domain names. The Respondent has an established online footprint as “Lambo” and is known in online communities and in a personal capacity as “Lambo”. Specifically, “Lambo” is of repute and regard in NamePros, which is a million member online community, as well as on other online platforms, including the Darwinia Network and Evolution Land. The Respondent is a “Lamb of outlier generic aptitude and intelligence” and this is apparent from a logo and iconography for his online footprint.
In support of his contention that he is commonly known by the disputed domain name, the Respondent refers to “unsolicited organic testimonials”. These take the form of two posts from participants to an online chat on the NamePros platform which assert, in response to what appears to be a comment in relation to the Complaint, that the Respondent has been known as “Lambo” on the forum, for some time.
[...]
The disputed domain name has not been registered or used in bad faith; ““Lambo” is my name and “I am Lambo”“. Whilst the Complainant has sought to draw inferences from the fact that the disputed domain name has been offered for sale on third party platforms at varying prices, prospective buyers would have been unable to acquire the disputed domain name at those prices. “The beauty is in the eye of the beholder and as the outlier Lamb par excellence, is all but priceless to me. And that is all that matters”.
It's not clear how much or exactly what evidence was used by the Respondent to establish the "commonly known as" defense. Two of the three panelists did not find anything that suggested the Respondent having been known as "Lambo" prior to acquiring the domain name:
The Respondent’s evidence, however, does not shed any light on the specific period of time for which the Respondent has referred to himself as “Lambo” on the forum and, in particular on whether he did so prior to his acquisition of the disputed domain name or only after he acquired it. This is an important consideration because if, as the Complainant alleges, the Respondent had the Complainant in mind as a prospective purchaser of the disputed domain name as at the date of his acquisition of it, then calling himself “Lambo” on the forum may have been part of a strategy intended to suggest an interest on his part in the disputed domain name in the event of challenge by the Complainant. Furthermore, the Respondent has not provided any evidence at all to support his contentions that he is known by the name “Lambo” both in other online communities and “in real life”.
The Respondent has asserted also that he is a “Lamb of outlier generic aptitude and intelligence”. What this means, is unclear but, whatever meaning is intended by this contention, it is a statement made without any evidential support.
The evidence to support the assertion that the Respondent is commonly known as Lambo is therefore confined to the Respondent having called himself “Lambo” for an unknown period of time on the NamePros online community, with nothing to suggest that he had been calling himself “Lambo” on the forum prior to his acquisition of the disputed domain name, nor, in fact, does the Respondent even specifically assert that this was the case.
Obviously, it's one thing to have a nickname and then set off to obtain the domain name corresponding to that nickname, and it is another thing to acquire a domain name and
then claim it as a nickname. One could justify any domain name on latter basis merely by registering SamsungElectronics.tld and then saying "it's my nickname."
But, the case was self-defended by someone who apparently thinks quite highly of himself, and didn't realize that the panelists might have wanted to see more in the way of pre-domain-acquisition evidence of use of the domain name. The dissenting panelist believed the Respondent, not represented by a lawyer, should have been given the opportunity to clarify whether the nickname preceded the domain name or the other way around. The dissenting Panelist would have requested more evidence:
In support, the Respondent has tendered in evidence some testimonials from acquaintances to the effect that he was known as Lambo, which go some way, but only some way, to verifying his position and although they are limited in number, he has certified that his submission is “complete and accurate.” His evidence was not entirely clear, as it did not have the professional gloss that was apparent from the Complainant’s case that was clearly prepared by a lawyer, which puts the Respondent at an obvious disadvantage. It therefore should be remembered that the Respondent is not represented by counsel and is opposed by obviously significant professional representation. There is an obligation on panels under Rule 10 to “ensure” that the parties are treated with equality and that each party has a fair opportunity to present its case, and this must be particularly so when a party is not represented.
...
The result is that the evidence has been left in an unsatisfactory state which is prejudicial to the Respondent but could so easily be rectified. It also potentially runs foul of the duty of the panel to ensure that the parties are treated equally and that each party is given a fair opportunity to present its case. The Respondent seems to this panelist to have been denied that opportunity, which compromises his due process rights.
Had that happened, things may have proceeded differently. However, old Namepros posts aren't going to be of much use, since changing your username on Namepros will change your name on all of your old posts. You can see that in action here:
Show attachment 242865
So, while there is a "lambo.com" post from December 2017, you can see that where it is quoted later in the thread, the original username at that time is reflected in the quote block. Additionally, if you look at old threads on Archive.org, the then-current username is preserved:
Show attachment 242866
But, in any event the Complaint, which was written and filed by an attorney, seems to put that question to bed:
Show attachment 242867
It's hard to tell, absent access to the actual UDRP filings themselves, the centrality of the "commonly known as" defense in the UDRP proceeding. If the Response attempted to imply that the nickname existed before acquisition of the domain name, then that is something the defendant will use to undermine credibility.
One person you don't want to be in this thing is one of the folks who submitted "
some testimonials from acquaintances," since their further testimony on how their testimonials came to be will be of interest.
In any event, the dissenting UDRP panelist's position was that the evidence was unclear, and insufficient to compel a result on behalf of the Complainant, who bears the burden of proving its case.
We in the peanut gallery have less access to any reliable evidence than the UDRP panel had. In a UDRP proceeding, there is no way to compel the production of evidence, but there certainly is in a court proceeding. So, however this thing moves forward, the parties and the court are ultimately going to have a lot more evidence on which to make decisions than the UDRP panel, or certainly anyone at Namepros.
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