Paragraph 4(c)(iii) of the Policy is backward looking; that is, it rejects any claim of future, non infringing plans for the domain name. It contrasts with paragraph 4(c)(i) which includes a forward looking defense based on Рdemonstrable preparationsП to use the domain name to offer bona fide goods or services. The defense is only available to respondents who are presently using the domain name either noncommercially or fairly. It is not available to respondents holding domain names inactively. Paragraph 4(c)(iii) of the Policy is a two part either/or test. Paragraph 4(c)(iii) reads:
[Y]ou are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The disjunctive, "noncommercial [use]" or "fair use" expands the possibilities for reaching safe harbor. The issue is clearer where the use is both noncommercial and fair, where (for example) the website is used for Constitutionally protected commentary or criticism, but it could equally be the case that the domain name resolves to a website that is fair but commercial (nominative fair use; an example is Pfizer Inc v. Van Robichaux, D2003-0399 (WIPO July 16, 2003) ((LIPITOR and <lipitor info.com>) where the Panel specifically mentioned nominative fair use). There are a number of disputes reaching back to the earliest years of the UDRP that illustrate other noncommercial and fair uses that do not implicate free speech.
On the noncommercial use side there is RMO, Inc. v. Burbidge, FA 96949 (Nat. Arb. Forum May 16, 2001) in which Respondent operated a website at <rmo.com> that contained family information. He also offered persuasive evidence of his legitimate acquisition of the domain name. The Panel held that a Рfamily information site is a legitimate non-commercial use [which] ... is a recognized method of proving rights and legitimate interests on the part of such user even when the use may cause some disadvantage or harm to other parties.П In Modefine S.A. v. A.R. Mani, D2001-0537 (WIPO July 20, 2001) (ARMANI and <armani.com>) Respondent proved that his given name was РA.R. Manni.П). In the most recent example, David Unangst v. Aimee Rancer, FA1307001508778 (Nat. Arb. Forum August 28, 2013) (LOCAL TRANSPLANT and <thelocal transplant.com>) Respondent demonstrated that she was using "the domain name to host a blog of her personal experiences."
The noncommercial or fair use elements of paragraph 4(c)(iii) are more generally associated with free speech where "commercial [use"П is incompatible with "fair use." There can be no meritorious defense if content is designed to generate income. Of all the WIPO Views on Selected UDRP Questions two stand out for Panels being in disagreement: commentary/criticism sites (paragraph 2.4) and Fan sites (paragraph 2.5). There is a split among Panels on whether the Рfree speechП is the speech contained in the domain name or the expression within the website to which the domain name resolves. For answers to all the other WIPO Overview questions there is consensus. The question at paragraph 2.4 is, "Can a criticism site generate rights or legitimate interests in the disputed domain name?" The answer splits into "View 1" and "View 2." The WIPO Final Report offers no assistance about the form of the domain name, whether identical or confusingly similar, although it would appear that under the plain reading of paragraph 4(c)(iii) defense there must be some commercial use to support a Policy violation, but not otherwise. Proof of noncommercial use and fair use regardless whether the domain name in identical or confusingly similar to complainantМs trade is essentially a View 2 position.
A clash of views is nicely illustrated in Aspis Liv Försäkrings AB v. Neon Network, LLC, D2008-0387 (WIPO June 2, 2008) where Respondent registered a domain name to offer critical commentary identical to ComplainantМs trademark, <aspis.com>). The majority held that the domain name was registered and being used in bad faith. RespondentМs legitimate interest in the domain name was vigorously supported by the dissent in. The dissenting member believed that "respondent has been improperly deprived of the Domain Name, in violation of his or its U.S. Constitutional rights of free speech, and feels that if this case were brought in virtually any court in the U.S., the result would be different." Respondent was vindicated in a subsequently commenced an action for declaratory relief under the Lanham Act § 1114(D)(v) in which complainant (now defendant) defaulted in appearance, Neon Network, LLC v. Aspis Liv Försäkrings, No. CV-08-1188-PHX-DGC (USDC Arizona July 22, 2009). The Court granted a default judgment declaring that the registration and use of the domain name was not unlawful.
