Domain names composed of generic terms or common words and expressions do not violate the Policy when they “have been registered because of their attraction as dictionary words, and not because of their value as trade marks,”  Land Mark Group v. Digi Media.com,  FA0406000285459 (Nat. Arb. Forum August 6, 2004).  If that is the case, domain names are legitimately owned by the first to register. Priority of registration is a fundamental principle of the Internet whether or not the complainant has a trademark.  Thus, a domain name that anticipates registration of a trademark by a long interval undercuts an allegation of bad faith registration even if the respondent subsequently uses the domain name in bad faith. For example, there are a string of cases alleging bad faith based on offers to sell the disputed, common word or generic term domain to the complainant [¶4(b)(i)].  Unless there is proof of bad faith registration, they fail because the respondent is offering to sell what he legitimately owns.  On the other hand, a registration that anticipates the trademark by a short interval may violate the Policy as being opportunistic [¶4(b)(ii and iv)] .  Legitimacy is not granted simply by virtue of the domain name being a generic term or common word.

    Taking the first of the affirmative defenses, respondent's right or legitimate interest in a disputed domain name composed of generic terms or common words is gauged by analyzing its history and its website.  Paragraph ¶4(c)(i) of the Policy reads:              

[B]efore 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.

    This comment will focus on "demonstrable preparations to use" through a recent case entitled State of Florida Department of Management Services v. Mr. Siegfried Maier and Edelsbacher Design Group KEG, D2008-0318 (WIPO April 23, 2008) (<myfloridamagazine.com). Geographic indicators as trademarks will be considered in a later comment, but in this case MYFLORIDA and MYFLORIDA.COM are registered trademarks with the USPTO.

    The respondents offered two arguments. First, that they were "not infringing the Complainant’s trademarks because they have no intention of providing any services identical or similar to the services offered by the Complainant and protected by the trademark registrations." Second, that "owning a domain name is not an infringement and that the Disputed Domain Name was registered for supporting or as yet unascertained a future business." Neither of these arguments is persuasive against a claim for abusive registration. Argument one assumes that the registration is legitimate when the parties travel in different trade channels. Argument two assumes that a simple, unsupported allegation of future intention is sufficient to persuade the Panel that the respondent has rights or legitimate interests in the domain name.

    Proof of demonstrable preparations under ¶4(c)(i) is intensely fact driven. Mere registration of a domain name is not such evidence, Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO November 11, 2000), and the Panel in The Napoleon Hill Foundation v. VivaCorp SA, FA0604000672115 (Nat. Arb. Forum May 18, 2006) stated that the Policy "specifies that the demonstrable preparations must be assessed before any notice of the dispute is given". Passive holding or parking merely reserves the web address for future infringing use. Acceptable evidence would include a business plan, timing etc., as explained in DigiPoll Ltd. v. Raj Kumar, D2004-0939 (WIPO February 3, 2005). The Panel found that Respondent’s case 

falls down because there is no evidence of what, if any, preparations he has made. There is no evidence of a business plan or partners, the proposed technology or how it would function, how the business would be financed, a timetable or, indeed, evidence of a single fact about the business other than the intention to develop it at some indeterminate time in the future. 

    As with evidence generally, allegations do not prove a case. They are merely a signpost to respondent's destination.