What is Bad Faith Intent to Profit from a Mark?
The ACPA gives the court some guidance to assist it in determining if the requisite bad faith exists. In determining if the defendant has bad faith, the court may consider the following non-exclusive factors: • the trademark or other intellectual property rights of the defendant, if any, in the domain name; • 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; • the defendant’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services; • the defendant’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name; • 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 th
