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The desired data can be downloaded with a simple click of your mouse — naturally for free. Another thing that exasperates panellists is unnecessary citation of authority.

Whether a trade mark is the same or confusingly similar to a domain name is a matter of impression and previous cases where another domain name was held to be similar or indeed dissimilar to a trade mark are rarely of any assistance to the panel whatsoever. Nor are cases that decide obvious points such as the suffix "com" does not distinguish an otherwise identical domain name. The Respondent has no Rights or Legitimate Interests in Respect of the Domain Name It is impossible to prove a negative and complainants are not required to do so.

On the other hand, they do have a duty to assist the panel to reach a just decision which probably connotes an obligation to disclose any facts or matters that might disclose a right or legitimate interest in the domain name and then address them.

The reason I say that is that the panel has a duty under rule 15 e of the Rules to declare that a complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.

Deliberate or even negligent non-disclosure would certainly constitute bad faith in my book. Paragraph 4 c of the UDRP lists a number of circumstances which if found to be present may demonstrate that the respondent has rights or legitimate interests in the disputed domain name: " i before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or ii you as an individual, business, or other organization have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or iii you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

It should be noted that these are examples and the list is not exhaustive. Probably the best way to deal with the second element is to say that the Complainant has never licensed or consented to the registration or use of the disputed domain name and to the best of its knowledge and belief none of the circumstances listed in paragraph 4 c of the UDRP applies and that there are no other circumstances that justify the respondent's registration or use of the disputed domain name.

The Domain Name has been registered and is being used in Bad Faith This is the most difficult element because the complainant must prove both registration and use in bad faith. It should be noted that these circumstances are only evidence and not conclusive proof of registration and use in bad faith but if the complainant can prove that one of them applies it will be the only evidence available to the panel and he or she will be bound to accept it unless the respondent can rebut it or explain it away.

It is nowadays rare to find an example of classic cyber-squatting that would fall within sub-paragraph i. In most of the cases that come before me, the respondent parks the disputed domain on a holding page with plenty of pay-by-click links and sponsored searches and that is usually enough to invoke sub-paragraph iv as the panel will already have found the domain name to be identical or confusingly similar and pay-by-click revenue is commercial gain.

The circumstances in paragraph 4 b are not exhaustive and that other circumstances of the same nature will suffice. Some panels have held that the mere act of registering a name that is similar to the complainant's trade mark or corporate name, failing to respond to a letter before claim or even using a privacy service suffice as evidence of registration and use in bad faith but I am more sceptical.

To take an obvious example, Lloyds is the name of a large London clearing bank, a corporation of insurers and a well-known pharmacy chain in the UK and each of them is entitled to register a generic top-level domain name that includes the word "Lloyds". There are very good reasons why domain name holders use privacy services and there can be all sorts of reasons why a respondent in country A might not even receive let alone take seriously a letter before claim from some law firm in country B.

It must have been obvious to NitroFlare that users were using the site's facilities to infringe the claimants' copyrights. The operators of the site could easily have stopped the infringements had they wanted to do so. Those operators took no steps to prevent such infringement.

They said that they had a takedown policy but that did not stop the site from hosting a lot of infringing material, There had been a similar takedown policy in EMI v Sky which Mr Justice Arnold had criticized for the following reasons: "i Requesting the takedown of individual files or links is overly burdensome and renders it impractical significantly to reduce the number of files illegally available on the Site in relation to any given piece of content.

As a means of trying to prevent infringement of one particular work, the "provision of links" policy would therefore be impractical and ineffective. It does not work where as here there is a constantly replenished stock of infringing content. There was no reason to suppose that they would be more successful with NitroFlare. Taking all of the above circumstances into account, the judge was satisfied that NitroFlare had infringed the claimants' copyrights by authorizing users to upload and download content to its site without the claimants' licence.

Mr Justice Miles found that NitroFlare was liable as a joint tortfeasor for its users' wrongdoing for the following reasons: "First, the Site has features which show that it is deliberately structured for the purpose of inducing users to upload commercial content. Users are offered a financial incentive to upload popular content which large numbers of other users are likely to wish to download.

This is most likely to consist of commercial content and that in turn is likely to be subject to copyright. Second, the service is provided in a user-friendly fashion. It is free of charge; allows effectively unlimited capacity; and gives uploading users the ability to promote their own uploads by providing them with links which they can supply to others.

Third, once content has been uploaded it is freely available to users. There is no restriction say by password protection on site-users' access. Fourth, the reach of the Site is amplified by the referrer sites. Fifth, the evidence summarised earlier shows that very large amounts of protected content is available for download from the Site; and that commercial material accounts for the vast preponderance of the content on the Site.

This is not accidental: the Site is, for the reasons already given, designed and structured to facilitate the sharing of commercial and therefore, probably protected content.

Sixth, the greater the amount of popular, commercial, content on the Site available for downloading, the greater the prospects of profits for the operator through advertising and subscriptions. Seventh, the steps taken by the Site to remove infringing content are, as already explained, wholly inadequate. The operator has clearly not adopted an effective policy to remove copyright protected content. The reasonable inference is that it would be contrary to the operator's financial interests to do so see the sixth point above.

The Site does not merely make available the means of infringement; it thrives on infringement. This explains the incentives given to users to upload popular content. The judge found that that requirement had been complied with. The claimants had notified the defendants of NitroFlare's activities in July They warned them of their intention to make this application in December They later supplied them with the evidence in support of the application. Like all injunctions, an order under s.

The principles by which that discretion was to be exercised in Nintendo as follows: "The injunction must be i necessary, ii effective, iii dissuasive, iv not unduly costly or complicated, v avoid barriers to legitimate trade, vi a fair balance between the fundamental rights engaged, vii proportionate and viii safeguarded against abuse. It can therefore be taken that it is proportionate as between the parties.