What a complaint has to prove
All three of the following, not two: that the domain is identical or confusingly similar to a trademark in which you have rights; that the registrant has no rights or legitimate interests in the name; and that the domain was registered and is being used in bad faith. The panel does not weigh them against each other. Fail one and the complaint fails.
Where complaints fail
The most common failure is the third element. If the registrant acquired the name before your trademark existed, they could not have registered it in bad faith towards you, whatever they are doing with it now. Descriptive names fail on the second element: a registrant holding a dictionary phrase and using it descriptively has a legitimate interest. And a complaint brought against a name that was simply available, and that the registrant bought first, tends to be found as an attempt to use the policy to acquire a name the complainant could have bought, which panels call reverse domain name hijacking and record against the complainant.
Checking registration date before calling counsel
Because UDRP panels require bad faith at the time of registration, the registry creation date is often the decisive fact. If the .com was registered in 2004 and your company was incorporated in 2019, a UDRP will almost certainly fail unless there was a recent transfer to a new owner targeting your mark. You can check the Verisign RDAP registration timestamp directly in our Domain & Email Exposure Diagnostic.
When to file
File when your mark predates the registration, the name is being used to impersonate you, sell counterfeit goods or capture your customers, and the registrant is either hidden or has quoted a price that is plainly extortionate. In those circumstances a UDRP costs a few thousand dollars in fees and counsel, takes about two months, and ends with the name transferred to you.
When to negotiate instead
Negotiate when any of the three elements is uncertain, when the registrant has a plausible story, or when the price they are likely to accept is lower than the cost and risk of a complaint. Most exact-match names held by a small business, a parking company or an investor fall into this category. An anonymous approach through a representative usually produces a number that makes the legal route unnecessary, and it does so without the registrant learning who wanted the name. Where a complaint would fail, the approach is the only route; where it would succeed, the approach is often still cheaper.
None of this is legal advice. It is the framework we use to tell a client whether to call their lawyer or call us.