The Dispute Resolution Service (DRS) Policy requires complainants to prove that they have 'rights in respect of a name or mark which is identical or similar to the domain name'. The Policy means rights enforceable by the complainant, whether under English law or otherwise, and may include rights in descriptive terms which have acquired a secondary meaning.
The main point of the test is to make sure that the person who complains is someone with a proper interest in the complaint. The rights test is not a particularly high threshold test. However, some complainants do fail this test, and it is important to provide evidence of the rights you are claiming.
Parties should bear in mind that merely showing that you have rights is not sufficient to win in a DRS complaint – the complainant must also show that the registration or use of the domain name is an abusive registration.
A trademark of any type might be helpful in demonstrating rights in the disputed domain name, but is not required. Trademark holders should also remember to include a copy of the trademark certificate with their submission.
The definition of rights in the Policy covers all rights enforceable under English law, so contract rights can be enough. It also covers rights that may not actually be enforceable under English law, but which demonstrate a genuine interest, such as the complainant's own name.
Showing when you had rights
You need to have rights at the time of the complaint in order to be able to bring the complaint, but it may be difficult to show that there is an abusive registration if you did not also have rights when the abuse took place. For example, it is unlikely that a domain name registration was made in order to prevent you from having it if you set up business after the domain name was registered.
The policy only requires the complainant to have rights, but it is also something the respondent should consider. If they have rights in a name which is the same as or similar to the domain name, it may be helpful in proving that there is no abusive registration. Respondents should provide proof of any rights they have when responding to a complaint.