Fighting the Un-ethical Online Marketing Post-Covid: An Analysis of the Domain Name Model

With the current development of on-line sales, after the Covid crisis, domain names use and abuse have become more than actual, generating a new wave of conflicts with the legitimate owners of trademarks. Recent studies show a significant increase in domain-names disputes. While most research examines statistical trends or economic factors driving domain name disputes, this study delves into the interpretative framework of the Uniform Dispute Resolution Policy (UDRP) to uncover how “bad faith” is assessed in arbitration. Using a qualitative case law analysis, this study examines key UDRP rulings to uncover both written and unwritten criteria influencing arbitration outcomes. Findings indicate that UDRP panels apply a flexible yet evolving interpretative framework, sometimes assuming a quasi-legislative role to address ambiguities. This research introduces two original models to enhance consistency and predictability in UDRP decision-making. The Five Zone Model for Fraudulent Use Analysis systematically classifies cases based on similarity, legitimate rights, and “bad faith”, offering a structured method for understanding panel reasoning. The Decision-Making Model for Fraudulent Marketing provides a framework for evaluating abusive domain name registrations, identifying key decision-making patterns. Given that proving “bad faith” is one of the three fundamental criteria for domain name recovery, these models offer valuable insights for arbitrators, policymakers, and trademark owners. This study highlights the need for regulatory refinements to maintain ethical standards in online commerce while ensuring a fair balance between trademark protection and domain registrant rights.