UDRP What is the definition of commercial use in UDRP cases?

[Maverick.au]

Hi,

I'm involved in another UDRP case with Volkswagen, details are in this thread "Volkswagen los UDRP against the domain my.gti.com" in this forum (sorry can't link as a new account).

I won the first case but they have relodged it as they have "discovered" two links to third party websites which were there for over five years and they have also noted the donation option (under $50 per year is donated). I don't get paid for these links nor any of the links on the website but this raises the question of what is commercial use?

In my case I spend hundreds of hours each year on the website, pay for hosting and pay for parts used in projects specifically for the website. Ignoring my time the actual cost of running the site would be around $1000 per annum.

A commercial operation exists to make a profit so income needs to exceed expenses. If I were to hypothetically derive say $990 in income and my costs are $1000 I'm making a loss so would this constitute commercial usage in a UDRP case?

Surely there is a difference between a site that has been parked and has advertising on there purely to make money from it and a site that is in use and has legitimate costs?

 

[jberryhill]

You are asking the wrong question.

First off, VW is an admitted criminal organization, having recently pled guilty in the US to one of the largest criminal frauds in history. They are hardly in a position to take the moral high ground relative to criticism of their longstanding pattern of fraud.

I don't get paid for these links nor any of the links on the website but this raises the question of what is commercial use?

You might want to take a look at the facts in this case:

http://www.adrforum.com/domaindecisions/1076568.htm

" Respondent’s use of the <ellenwhite.org> domain name does not constitute a legitimate, noncommercial fair use, as the connecting web site is commercial in nature – soliciting donations in support of Respondent’s activities, stating that “for a suggested donation of $25.00 or more you may choose any one of the books about Ellen White . . . as our way of saying thank you”"

[...]

It can be discussed whether the soliciting of donations in exchange of a book about Ellen White makes the site more or less commercial, as argued by the Complainant. After careful consideration of all arguments from the Complainant and the Respondent, this Panel is not convinced that the intention of Respondent’s use is commercial."

You might want to take a step back, and not lose the larger picture in the details. What is the objectively apparent overall purpose of the site? Is it to make money or is it to criticize the criminal VW organization? The fact that, yes, hosting etc. is not free, could render any website "commercial" in the sense that money is changing hands somewhere. Newspapers and magazines, protected by the First Amendment, are substantial businesses. Only in the weird strictest interpretation of the UDRP is one required to lose money to be "non-commercial". Obviously, in the Ellen White case noted above, there was some "commerce" going on in the form of donations and book sales, but that activity was not intended to "compete" with the Adventists (although in the religious context, we tend not to call competition what it is). Rather, that activity is in support of the critical purpose itself - i.e. to keep the site running.

Are you criticizing VW for the purpose of selling competitive cars? No. Would it be perfectly legal to write a book criticizing VW and sell that book? Yes.

But rather than focus on a binary technical distinction between "non-commercial" and "commercial", since just about anything can be defined as "commercial" in some sense, the larger point is "what is this guy trying to accomplish?" a critical purpose or a commercial one? That is the question driven at by the decision above - what is the intent here?

 

[Maverick.au]

But rather than focus on a binary technical distinction between "non-commercial" and "commercial", since just about anything can be defined as "commercial" in some sense, the larger point is "what is this guy trying to accomplish?" a critical purpose or a commercial one? That is the question driven at by the decision above - what is the intent here?

Thanks for your help, I won the case and your information played a part in that. Greatly appreciate you taking the time to respond.

The decision is here (can't post a link so copy the URL to your address bar)

udrp.adr.eu/adr/decisions/decision.php?dispute_id=101516

 

[jberryhill]

Thanks for your help, I won the case and your information played a part in that. Greatly appreciate you taking the time to respond.

Congratulations, and you are welcome. Had I known it was a fan/aftermarket site, instead of a criticism site as I had assumed, I could have provided better references, but the principle is the same.

 

[1Darko]

Congrats for successfully defending your assets!