Martha Stewart Living Omnimedia, Inc. filed an “intent to use” application to register EVERYDAY FOOD which was denied as descriptive, but acquiesced in its being registered on the Supplemental Register. Martha Stewart Living Omnimedia, Inc. v. Joe Perez, FA0904001259275 (Nat. Arb. Forum June 24, 2009). Within months of the application the Respondent registered and . The Complainant presented a policy argument that an “intent to use” application ought to be treated as notice of its prior rights to the trademark as would a subsequent registrant for the same term in the same Class(s):

Since the Respondent is located within the U.S., he has notice of Complainant's prior rights to its EVERYDAY FOOD mark. The fact of (a) the prior pending intent to use application combined with (b) the fact that a search of the USPTO records prior to the date of the registration of the Offending Domains would have revealed Complainant's claim to rights and (c) the fact of the nature of the use of the Offending Domains to promote competing goods and services via a pay-per-click interface which makes direct reference to Complainant and its MARTHA STEWART and EVERYDAY FOOD magazine marks all support a finding of bad faith registration.

While this is undoubtedly a forceful trademark analysis that would exclude another applicant in the same Class from claiming priority it does not prevent a respondent from registering a domain name identical or confusingly similar to the requested trademark. Until a trademark registrant is successful in proving distinctiveness – establishing entitlement to be on the Principal Register – it is vulnerable to what Martha Stewart regards as an interloper stepping in front it:

Complainant alleges that this is a straightforward case that offers the Panel a stark choice between applying the plain language of the Policy or creating a safe haven for U.S. based cybersquatters to poach domain names based upon Intent to Use trademark applications....

However, in proposing a “stark choice” the Complainant mis-construes the Policy. Such a principle is not found in the UDRP. Trademarks and domain names exist on different strata, intersecting only when a complainant satisfies the jurisdictional requirement for complaint. Rather, the Complainant’s argument is essentially one based on an unenforceable moral code: a domain registrant shalt not poach from an “intent to use” application. Since the Complainant in Martha Stewart did not have a protectable right at the time the Respondent registered the domain names it could prove none of the paragraph 4(a) requirements.