The Policy lists four non‑exclusive examples of bad faith. Each identifies a particular and distinguishable parasitic or predatory act. While it may be true that a respondent’s conduct can be actionable under more than one theory, they should not be blurred or blended any more than theories of action in civil court. The elements for proving tortious interference with contract is entirely different from tortious interference with prospective advantage. A plaintiff cannot hope to win the first by offering as proof the elements of the second. Not infrequently, however, complainants and panelists blur the distinction between ¶4(b)(iii) and ¶4(b)(iv) of the Policy. The two Policy provisions read:
“[Y]ou have registered the domain name primarily for the purpose of disrupting the business of a competitor”[¶4(b)(iii)]; and
“[B]y using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on‑line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location” ¶4(b)(iv)].
An example of blurring of theories is illustrated in a recent case, Sony Corporation v. John Stewart Last, Dragon Domains Limited, D2008‑0812 (WIPO July 2, 2008). The Panel first noted that it “may be argued that the Respondent is not a competitor of the Complainant.” However, he then cites to IGBnvestments, Inc. v. Donald Baker, D2007‑1320 (WIPO November 9, 2007) in which the Panel holds that
In engaging in this commercial activity, Respondent did (if only indirectly) become a competitor of Complainant and attracted Internet users for commercial gain, and in so doing it must have been apparent to the Respondent that this would have a disruptive effect on the business of the Complainant.
The blurring harks back to Mission Kwa Sizabantu v. Rost, D2000‑0279 (WIPO June 7, 2000) where the Panel stated that “the natural meaning of the word ‘competitor’ is one who acts in opposition to another.” This is questionable and certainly not the “natural meaning.” Rather, the term “competitor” means, as defined in Webster's Ninth Collegiate Dictionary (1983) “one selling or buying goods or services in the same market as another.”
It is possible for a respondent to violate both ¶4(b)(iii) and ¶4(b)(iv), but only if he is a competitor not just someone who competes for Internet traffic. It is error to apply the term “competitor” to respondents whose landing pages contain links to competitors. The predatory conduct in Sony consisted in using the domain name intentionally to attract Internet users to its website for commercial gain “by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation.”