For example, The domain was registered in 2000 and the trademark was registered in 2001. Now we bought the domain from an auction like Godaddy, Namejet....So, who is got the rights? I have seen a lot of domains like this on the market.
Despite the fact we are not talking about any concrete case/dispute, I will try to explain you what I think it concerns you.
For a UDRP complaint to succeed, the complainant must establish that the following three cumulative criteria are met:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights
(ii) The registrant of the domain name has no rights or legitimate interests in respect of the domain name
(iii) The domain name has been registered and is being used in bad faith
Lets say complainant can prove that domain name is identical or confusingly similar to his trademark + he can prove the registrant has no rights or legitimate interests in respect of the domain name.
At this point, complainant have to prove also that domain has been registered and is being used in bad faith.
I suppose you know that it would be very hard for a complainant to prove a respondents bad faith if a domain name has been registered before a complainant has acquired trademark rights.
But what does it mean "
registered"? First registered, creation date? What about the change of ownership?
According to this, Wipo 3.0. states:
"Merely because a domain name is initially created by a registrant other than the respondent before a complainant’s trademark rights accrue does not however mean that a UDRP respondent cannot be found to have registered the domain name in bad faith. Irrespective of the original creation date, if a respondent acquires a domain name after the complainant’s trademark rights accrue, the panel will look to the circumstances at the date the UDRP respondent itself acquired the domain name."
The reason behind this is that its necessary to determine a good/bad faith registration.
Because the initial registrants "good or bad faith" is not relevant anymore, we need to determine a respondents (a new owner) "good or bad faith".
The conclusion is that a change of ownership / transfer of a domain name to a third party, in general, is considered as a new registration.
If you have bought the domain from an auction, the relevant date to determine a good/bad faith is the date of your purchase.
But remember, complainant have to prove that domain name has been registered + is being used in bad faith, and here we are talking only about the relevant date for determining your bad/good faith registration.
Its only a part of the process of proving.
"What if the respondents registration was made in good faith but the renewal was not?", "What about trademark, is it widely known?" and many questions like this can pop out from what is seemingly nowhere, but its important to stay focused on the main theme because we are talking in general here.
Im giving you this example just to show you how complicate this subject could get.
If you want to discuss something specific, just let us know and give us more informations.