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Bad-faith intent to profit

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Anti-cybersquatting Consumer Protection Act Edit

The concept of bad-faith intent to profit under the Anti-cybersquatting Computer Protection Act (ACPA) involves a court weighing a number of non-exclusive factors:

  1. the trademark or other intellectual property rights of the defendant, if any, in the domain name;
  2. the extent to which the domain name consists of the legal name of the defendant or a name that is otherwise commonly used to identify the defendant;
  3. the defendant's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
  4. the defendant's bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
  5. the defendant's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
  6. the defendant's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the defendant's prior conduct indicating a pattern of such conduct;
  7. the defendant's provision of material and misleading false contact information when applying for the registration of the domain name, the defendant's intentional failure to maintain accurate contact information, or the defendant's prior conduct indicating a pattern of such conduct;
  8. the defendant's registration or acquisition of multiple domain names which the defendant knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
  9. the extent to which the mark incorporated in the defendant's domain name registration is or is not distinctive and famous within the meaning of Section 1125(c)(1) of the Lanham Act.

Bad faith intent will not be found where the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.

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