In a pretty interesting recent UDRP decision a one member panel concluded that it is not bad faith when domain owner responds to an offer to sell that is initiated by the Complainant.

You know the game.

You own a domain you believe is generic, someone sends you an offer wanting to buy the domain from you and when you respond to the offer the person who made the offer files a UDRP citing that you tried to sell them the domain as bad faith.

The UDRP was over the domain name inclusivehealth.com and the one member panel, citing the majority view of UDRP decision clearly rejected the argument that responding to an offer coming from the complainant amounted to bad faith

Here are the relevant findings of the panel:

“‘The Respondent alleges that, because the Complainant initiated the offer for the sale of the disputed domain name, the Respondent’s counteroffer does not exhibit bad faith registration and use.”

“Previous panels have determined that, when a complainant initiates an offer for the sale of a disputed domain name, a respondent’s willingness to engage in negotiations for the sale of the domain name does not equate to bad faith. ”

(See Pocatello Idaho Auditorium Dist. v. CES Mktg. Group, Inc., FA 103186 (Nat. Arb. Forum Feb. 21, 2002) (finding that “when a Complainant indicates a willingness to engage in a market transaction for the name, it does not violate the policy for a [the respondent] to offer to sell for a market price, rather than out-of-pocket expenses”); see also Puky GmbH v. Agnello, D2001-1345 (WIPO Jan. 3, 2002) (finding insufficient evidence to hold that the domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(i) where the complainant initiated contact with the respondent and the respondent responded with an offer to sell its domain name registration for $50,000).

Therefore, the Panel finds that the Respondent’s conduct in this respect does not constitute bad fath use pursuant to Policy ¶ 4(b)(i).

The Complainant also argues that the Respondent’s inactive holding of the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(a)(iii) in and of itself. The consensus view of panels regarding this matter can be found in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), available at:

http://www.wipo.int/amc/en/domains/search/overview2.0/index.html#32

The consensus view is:

With comparative reference to the circumstances set out in paragraph 4(b) of the UDRP deemed to establish bad faith registration and use, panels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant’s concealment of its identity. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa. Some panels have also found that the concept of passive holding may apply even in the event of sporadic use, or of the mere “parking” by a third party of a domain name (irrespective of whether the latter should also result in the generation of incidental revenue from advertising referrals).

In the present case, the mark is not well known and it is composed of two common words, “inclusive” and “health” which are commonly associated together. The Respondent has replied and has not concealed her identity. There has been no sporadic use of the disputed domain name, nor has it been parked or used to generate incidental revenue from advertising referrals.””