This Note could alternatively have been called “shutting a legal file is not an estoppel to later prosecution of abusive registration.” The Respondent in Disney Enterprises, Inc. v. The Lion King a/k/a NULL NULL, FA0906001266261 (Nat. Arb. Forum June 24, 2009) is a collector of things Lion King “purely for personal enjoyment purposes.” The domain name <the lionking.com> is part of an extensive collection of Lion King memorabilia and its “crown jewel.” The Respondent contends that the Complainant investigated his registration in 2003 and after interviewing him closed its legal file. This “acquiescence conferred Respondent with rights or legitimate interests in the disputed domain name” and exonerated him from acting in bad faith. The domain name “does not resolve to an active website ... [and is used] for e-mail purposes only.” If the issue has never been litigated acquiescence or laches is not an affirmative defense. A self-described crown jewel enhances the value of a collection of memorabilia. The problem is that a domain name composed of a famous trademark cannot be owned like other collectibles.

Moreover, registering and passively holding a domain name does not confer a right or legitimate interest in it. Neither does using it as a personal moniker for one’s e-mail account. The use may be noncommercial but it is not “fair use” as that term is defined by case law and paragraph 4(c)(iii) of the Policy. Fan websites honoring celebrities may be “fair” but only if they are active. Panels typically consider whether the domain name could ever be used without infringing the complainant’s rights. Infringement will be found if “[it is] not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate,” Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO February 18, 2000).

However, judging conduct where there is no express commercial use cannot easily be slotted into any of the four examples under paragraph 4(b) of the Policy. The domain name is not being held for ransom, [¶4(b)(i)], there is no “pattern” of abusive registration [¶4(b)(ii)], the Respondent is not a Disney “competitor” [¶4(b)(iii)] and he is not “attempting to attract, for commercial gain ... 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,” although 4(b)(iv) is the closest and the theory selected by the Panel. In support of 4(b)(iv) an e-mail moniker conceivably confers prestige that could both constitute “commercial gain” and mislead those who deal with the Respondent into believing that he is sponsored, affiliated or being endorsed by Disney. The uncertainty of which theory applies suggests the “totality of circumstances” approach articulated by the Panel in Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000). There does not have to be a compartmentalized basis for finding bad faith registration and use.