Should UDRP providers redact financial data? – Domain Name Wire

Complainants are asked to share very sensitive data in some cases. It might be fair to redact it from published decisions.

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Complainants in cybersquatting disputes filed under the Uniform Domain Name Dispute Resolution Policy (UDRP) sometimes need to provide revenue and expense data.

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For example, a Complainant arguing it had a common law trademark when a domain was registered might state how much revenue it made in the years before the registration. Some companies will also state how much they spent advertising their brand during those years.

The WIPO Jurisprudential Overview 3.0 explains how companies can show common law rights in a mark:

Relevant evidence demonstrating such acquired distinctiveness (also referred to as secondary meaning) includes a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys.

Panelists frequently cite a lack of sales and advertising numbers as a reason for failing to show common law rights.

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These numbers can be crucial in making a decision. At the same time, I understand why private companies don’t want to share this data. It’s important to keep this information close to the vest. Many private companies only share such data with their investors.

When filing a UDRP, the numbers become public (pdf) for everyone to see.

I think it’s reasonable for companies to ask for some privacy around their financials. A compromise would be for UDRP providers to redact the data when publishing decisions.

This has a downside; it makes it difficult to see what various panels considered significant enough to warrant proof of a common law mark. But I think the interests of Complainants outweigh the benefit to other parties.