Cybersquatting Bad Faith Factors: The ACPA’s 9-Factor Test

To win a cybersquatting lawsuit under the Anticybersquatting Consumer Protection Act (ACPA), a trademark owner must prove that the domain name registrant acted with a “bad faith intent to profit” from the mark. Courts decide that question using nine non-exclusive factors listed in 15 U.S.C. § 1125(d)(1)(B)(i): four that tend to show good faith, four that tend to show bad faith, and one that can cut either way. The factors are a guide, not a scorecard. Courts look at the full picture, and a registrant who reasonably believed its use was lawful can avoid liability under the statute’s safe harbor.

What a Cybersquatting Claim Requires

The ACPA, codified at 15 U.S.C. § 1125(d), makes a person liable to a mark owner if that person has a bad faith intent to profit from the mark and registers, traffics in, or uses a domain name that is identical or confusingly similar to it. For famous marks, the statute also covers domain names that are dilutive of the mark. In practice, a plaintiff must establish:

• A protected mark that was distinctive (or, for a dilution theory, famous) when the domain name was registered
• A domain name that is identical or confusingly similar to the mark, or dilutive of a famous mark
• Registration, trafficking, or use of the domain name by the defendant, who must be the registrant or the registrant’s authorized licensee under § 1125(d)(1)(D)
• A bad faith intent to profit from the mark

The first three elements are often straightforward. Bad faith is where most cases are won or lost. For a closer look at building the overall case, see our guide on how to prove an Anti-Cybersquatting Act claim.

The Nine ACPA Bad Faith Factors

The statute says courts “may consider” the listed factors, and the list is not exhaustive. Here is what each one asks.

Factors That Tend to Show Good Faith (I–IV)

• Factor I: The registrant’s own rights in the name. Does the registrant hold trademark or other intellectual property rights in the term used in the domain name? A business that legitimately operates under the same name stands on much firmer ground than someone with no connection to it.
• Factor II: The registrant’s legal name or nickname. Does the domain name consist of the registrant’s legal name or a name commonly used to identify that person? Registering your own name is a classic good-faith explanation.
• Factor III: Prior bona fide business use. Has the registrant previously used the domain name in connection with a genuine offering of goods or services? Real, pre-existing commercial use weighs against bad faith.
• Factor IV: Noncommercial or fair use. Is the registrant making a bona fide noncommercial or fair use of the mark on the website, such as criticism, commentary, or parody?

Factors That Tend to Show Bad Faith (V–VIII)

• Factor V: Intent to divert consumers. Did the registrant intend to divert consumers from the mark owner’s online location to a site that could harm the mark’s goodwill, either for commercial gain or to tarnish or disparage the mark, by creating a likelihood of confusion about source, sponsorship, affiliation, or endorsement?
• Factor VI: Offers to sell. Did the registrant offer to transfer or sell the domain name to the mark owner or anyone else for financial gain without having used, or intending to use, the domain for a genuine business? A pattern of that conduct also counts.
• Factor VII: False contact information. Did the registrant provide material and misleading false contact information when registering, intentionally fail to keep that information accurate, or show a pattern of doing so?
• Factor VIII: Warehousing multiple domain names. Has the registrant registered or acquired multiple domain names it knows are identical or confusingly similar to other people’s distinctive marks, or dilutive of other people’s famous marks?

The Factor That Cuts Both Ways (IX)

• Factor IX: Strength of the mark. How distinctive and famous is the mark used in the domain name? A coined or famous brand makes an innocent coincidence hard to believe. A descriptive or common word makes it far more plausible that the registrant chose the domain for its ordinary meaning.

How Courts Weigh the Factors in Practice

Courts do not simply count how many factors favor each side. In Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489 (2d Cir. 2000), the first federal appellate decision to apply the ACPA, the Second Circuit found bad faith based largely on the unique circumstances of the case, which did not fit neatly into any enumerated factor. The statute allows exactly that kind of holistic analysis.

The factors also protect legitimate speech. In Lucas Nursery & Landscaping, Inc. v. Grosse, 359 F.3d 806 (6th Cir. 2004), a decision from the federal appeals court that covers Michigan, a dissatisfied customer registered lucasnursery.com to publish complaints about a landscaping job. The Sixth Circuit affirmed summary judgment in her favor, finding no evidence that she intended to trade on the goodwill of the company’s mark. The Fourth Circuit reached a similar result in Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), holding that a noncommercial gripe site at a misspelled domain name was not cybersquatting absent a bad faith intent to profit.

On the other side of the ledger, the evidence that most often supports bad faith tracks the statutory factors closely. Examples include a domain registered after a brand became well known, a page monetized with ads for the brand owner’s competitors, an unsolicited offer to sell the domain to the brand owner, concealed or false registration details, and a portfolio of names that echo other companies’ marks.

The ACPA Safe Harbor

Even when some factors point toward bad faith, § 1125(d)(1)(B)(ii) provides that bad faith intent “shall not be found” where the registrant believed, and had reasonable grounds to believe, that its use of the domain name was a fair use or otherwise lawful. The belief must be both sincere and reasonable. In Prudential Insurance Co. of America v. Shenzhen Stone Network Information Ltd., 58 F.4th 785 (4th Cir. 2023), the Fourth Circuit affirmed a finding that the registrant of PRU.COM acted in bad faith and was not entitled to the safe harbor.

Timing Matters: Registration vs. Re-Registration

Because a mark must be distinctive when the domain name is registered, the relevant registration date can decide a case. The federal circuits disagree about whether a later re-registration or transfer counts as a new “registration”:

• The Ninth Circuit held in GoPets Ltd. v. Hise, 657 F.3d 1024 (9th Cir. 2011), that re-registration of a currently registered domain name by a new registrant is not a “registration” under the ACPA. It applied that rule again in an unpublished 2025 decision in JFXD TRX ACQ LLC v. trx.com, and the Supreme Court denied review on December 15, 2025 (No. 25-188).
• The Third Circuit (Schmidheiny v. Weber, 319 F.3d 581 (3d Cir. 2003)), Eleventh Circuit (Jysk Bed’N Linen v. Dutta-Roy, 810 F.3d 767 (11th Cir. 2015)), and Fourth Circuit (Prudential, 2023) treat a re-registration as a registration that can support liability.

Where a domain name was first registered before your trademark rights arose, where you file can therefore matter a great deal.

Remedies When Bad Faith Is Proven

A successful ACPA plaintiff can obtain significant relief:

• A court order for forfeiture, cancellation, or transfer of the domain name under § 1125(d)(1)(C)
• Actual damages and the defendant’s profits under 15 U.S.C. § 1117(a), or, at the plaintiff’s election any time before final judgment, statutory damages of $1,000 to $100,000 per domain name under § 1117(d)
• Reasonable attorney fees in exceptional cases under § 1117(a)

When the registrant is anonymous or outside the reach of U.S. courts, a mark owner may be able to proceed against the domain name itself through an in rem action under the ACPA, although in rem remedies are limited to the domain name.

Bad Faith Under the ACPA vs. the UDRP

Many domain disputes are resolved not in court but under ICANN’s Uniform Domain-Name Dispute-Resolution Policy (UDRP). A UDRP complainant must show that the domain name is identical or confusingly similar to its mark, that the registrant has no rights or legitimate interests in it, and that the domain name “has been registered and is being used in bad faith.” UDRP panels can order transfer or cancellation, but they cannot award money or attorney fees. A UDRP decision is also not the last word: the registrar delays implementing a transfer for ten business days so the registrant can file a court challenge. Learn more about how a UDRP proceeding works.

Registrants have statutory protections too. Under 15 U.S.C. § 1114(2)(D)(v), a registrant whose domain name has been suspended, disabled, or transferred may sue to establish that its registration or use is not unlawful. Under § 1114(2)(D)(iv), a party who causes a registrar to act based on a knowing and material misrepresentation can be liable for the registrant’s damages, costs, and attorney fees. These tools are central to fighting reverse domain name hijacking.

What to Do If You Suspect Cybersquatting

• Preserve evidence now. Capture screenshots of the website, advertising, redirects, and any email or marketplace offers to sell the domain.
• Compare the dates. Determine when your mark became distinctive and when the domain name was registered and transferred.
• Look for patterns. Check whether the registrant holds other domain names that mirror well-known brands.
• Be careful about negotiating. An early purchase offer may be cheaper than litigation, but your communications can become evidence, so plan them with counsel.
• Choose the right forum. Weigh a UDRP complaint against a federal ACPA lawsuit based on the damages you need, how quickly you need the domain, and whether the registrant can be found.

Protecting Your Brand Online

The ACPA’s bad faith factors reward legitimate businesses, individuals, and critics while giving brand owners strong remedies against people who register domain names to exploit someone else’s goodwill. Because courts weigh the factors case by case, and because the circuits differ on key questions such as re-registration, the strength of a claim or defense depends heavily on the specific facts.

If someone has registered a domain name that trades on your brand, or if you have received a cybersquatting demand over a domain name you own, the cybersquatting attorneys at Revision Legal can evaluate the bad faith evidence and recommend the fastest path to resolution. Contact us through the form on this page or call (855) 473-8474.