The Trademark holder must agree to submit to the jurisdiction of the domain name holder or the registrar if the domain name holder challenges the outcome of the proceeding. Note that in a challenge to the outcome of a UDRP proceeding, the trademark holder can not require the domain name holder to go to court in its jurisdiction even if the domain name holder might be subject to personal jurisdiction there. Some critics indicate that Trademark holders will be reluctant to use the policy because of this provision. For additional information on jurisdiction issues, see the forthcoming Jurisdiction module in week 7. Several of the UDRP decisions represent typical cybersquatting cases that one would easily expect to result in transfer to the trademark holder under the new policy.
Some cases raise interesting issues regarding interpretation of the new policy.
While this might seem to preclude a transfer to the trademark holder in many cases where the domain name does not lead to an active web site, that is not the case. The domain name holder in these cases, however, also had shown a pattern of registering trademarks as domain names, thus supporting the inference that the registrant's purpose was not legitimate. The policy lists these four factors, not as an exclusive list, but as examples of bad faith registration and use. Because three of these four factors did not require active use in order to meet the bad faith registration and use requirement, the panelist in the telstra.org decision determined that passive holding in certain circumstances could constitute bad faith use sufficient to justify transfer according to the policy. All this led to an inability of the panelist to conceive of any plausible or actual contemplated active use that would not be illegitimate.