The nine factors are addressed to the court, not to the expert
US-specific. The nine factors live in United States federal law, at 15 U.S.C. 1125(d)(1)(B)(i). They have no application outside it.
The statute says a court may consider factors such as, but not limited to, the nine. The list is non-exclusive. There is no scoring, no threshold number and no weighting in the text. And bad faith intent to profit is a legal conclusion reserved to the court.
So the sentence that governs this page: a domain name expert does not decide whether a factor is met and does not opine on bad faith. What an expert does is identify, retrieve, authenticate and explain the technical records that bear on each factor, and state the limits of those records.
What follows is that mapping, factor by factor. It is not a scoring system and must not be read as one.
Factors (I) and (II): the registrant's own rights, and the registrant's own name
Factor (I) looks at the trademark or other intellectual property rights of the registrant, if any, in the domain name. Note the direction: it asks about rights held by the registrant, not the complainant.
The record is registry-of-marks material plus date comparison. From the USPTO's Trademark Status and Document Retrieval system: registration or serial number, filing date, claimed first use in commerce, status, and the ownership chain from assignment records. Then three questions answerable from records — whether the registrant matches the recorded owner of that mark, how the mark's filing date sits against the domain's creation date, and whether a dated trail shows the registrant using the asserted mark. Where a mark application postdates a demand letter, that is two dates from two records. State the dates; the inference is someone else's.
Factor (II) asks how far the domain consists of the registrant's legal name or a name otherwise commonly used to identify them. The evidence: historical registrant name and organization fields and when they changed; registrar account records behind a privacy or proxy service; the organization field of an organization-validated TLS certificate, which a certificate authority checks against corporate records and which is publicly visible in Certificate Transparency logs; and the name as it appears in archived content.
Factors (III) and (IV): prior use, and what makes a use commercial
Factor (III) concerns the registrant's prior use of the domain in connection with the bona fide offering of goods or services. "Prior" makes it a dated question, and dated questions are where the technical record is strongest.
What bears on it: archived captures showing a functioning commercial site, each with its capture timestamp and an explicit statement of crawl gaps; the commercial machinery inside those pages — product listings, checkout endpoints, payment processor scripts, terms pages; passive DNS showing continuous address resolution and MX records indicating a working mail configuration rather than a parked name; certificate log entries across a span, evidencing a name actively served rather than dormant; and any hosting logs produced. The comparison that matters is the ordering of dates: earliest evidence of the offering, the domain's creation date, the mark's first-use date.
Factor (IV) concerns bona fide noncommercial or fair use of the mark in a site accessible under the domain name. Two conditions there are technical facts to establish rather than assume: the use must be of the mark, and the site must have been accessible — a page sitting in an archive does not by itself show the domain resolved to it. The part only a technical examination surfaces is commerciality — advertising publisher identifiers embedded in the archived HTML, affiliate parameters, parking templates and parking-service name servers, subscription or donation endpoints. Whether a use was "bona fide" or "fair" is not the expert's characterization to make.
Factor (V): intent to divert, and the redirect chain
Factor (V) concerns intent to divert consumers from the mark owner's online location to a site that could harm the goodwill represented by the mark, for commercial gain or with intent to tarnish, by creating a likelihood of confusion as to source or sponsorship. It is the most technical of the nine.
- Redirect forensics. The full chain captured with response headers — status codes,
Locationheaders, meta-refresh tags, script-driven redirects, and cloaked redirects that behave differently by user agent, referrer or geography. Where the chain terminates is the material fact, and it is captured repeatedly and from more than one vantage point. - Monetization attribution. Affiliate identifiers, tracking parameters, advertising publisher and analytics property identifiers in the pages, which tie a destination's revenue to an account; and the keyword terms served on a pay-per-click parking page, captured with the page rather than described.
- Confusion-facing artifacts. Copied logos and images compared by file hash, copied templates, a matching favicon hash, and use of the mark in the page title.
- Mail configuration. MX records on a confusingly similar name pointing at a mail host the registrant controls.
- String proximity and infrastructure overlap — transposition, omission, doubling, adjacent-key substitution, homoglyph confusables; and shared name servers, hosting addresses and certificate coverage with the registrant's other properties.
Factors (VI) and (VII): offers to sell, and contact information
Factor (VI) concerns an offer to transfer, sell or assign the name for financial gain without having used, or intended to use, it in a bona fide offering — or prior conduct indicating a pattern.
The records: archived captures of a for-sale lander or marketplace listing, with capture date and asking price as displayed; name servers or lander fingerprints belonging to a sales service; recorded sale data from public databases for the pattern limb; escrow records; and correspondence produced with full headers, so the routing chain and sender-authentication results can be examined.
Factor (VII) concerns material and misleading false contact information supplied when applying for the registration, together with intentional failure to maintain accurate information. The evidence: historical registration snapshots showing what was supplied and when each field changed; registrar-produced records under legal process, the only authoritative source for what was submitted at application and for the account behind a privacy or proxy service; any validation artifacts the registrar generated, such as verification messages and bounces; deliverability testing of the address on file; and repetition of the same implausible data across a portfolio.
Two distinctions this factor routinely loses. Use of a privacy or proxy service is not, in itself, false contact information — it is a disclosed service reflected in the record. And redaction of published registration data is a publication decision by the registrar or registry, not something the registrant supplied; redacted output says nothing about the accuracy of the data on file.
Factor (VIII): the portfolio, and per-name date anchoring
Factor (VIII) concerns registration or acquisition of multiple domain names the person knows are identical or confusingly similar to marks of others — distinctive at the time those names were registered, or dilutive of famous marks famous at that time — and the text adds "without regard to the goods or services of the parties."
This factor is almost entirely an expert product. The candidate portfolio is assembled by searching historical registration datasets by registrant detail; because the registrant-name field is frequently redacted, the work then moves to signals that survive redaction: shared registrant email or forwarding-address pattern, shared name servers, shared hosting addresses, shared analytics and advertising account identifiers, certificates naming many hosts at once, matching favicon or template hashes, and clustered registration timestamps.
What separates a defensible portfolio analysis from a list is per-name date anchoring. The statute anchors distinctiveness and fame at the time of registration of such domain names — plural, each with its own date — so each name is compared against the register as at its own creation date, not against a single cut-off. Linkage remains inference, and the report says so on every row: shared name servers can mean a shared hosting provider. Every signal carries its alternative explanation, or the analysis is not evidence.
Factor (IX) and the safe harbor: where the expert stops
Factor (IX) concerns the extent to which the mark incorporated in the registration is or is not distinctive and famous within the meaning of the dilution subsection. It is trademark-side, and a domain expert's contribution is bounded. The record supplies the USPTO registration record, including the register the mark sits on and any claim of acquired distinctiveness, and the mark owner's own online footprint over time — archived captures, resolution and hosting history, certificate entries — documenting duration, continuity and scale of use. The fame determination and any survey evidence sit outside a domain expert's scope, and an expert should never state that a mark is famous.
The safe harbor at 1125(d)(1)(B)(ii) provides that bad faith intent shall not be found where the court determines the person believed and had reasonable grounds to believe the use was fair or otherwise lawful. Belief and reasonable grounds are states of mind, and the expert does not answer them. What the record supplies is what existed and when: dated disclaimers, the content served in each period, dated correspondence with full headers, and the presence or absence of the artifacts catalogued under factors (IV) and (V).
What the factor matrix cannot establish
It cannot establish bad faith. That is the point of the matrix form: it shows counsel what records exist against each factor and where nothing was found, and it stops there.
- No factor maps to a single record. Each is served by a combination, and any single record is weaker than the combination it sits in.
- Absence of evidence is not evidence of absence. No archive capture in a period does not show no site existed; no passive DNS record does not show the name never resolved. Sensors have partial coverage; archives crawl on their own schedule, behind robots exclusions and login walls.
- Redaction removes the fields factors (II) and (VII) address. Registrant name, street, postal code, phone and email are redacted from published gTLD output where applicable law requires (ICANN Registration Data Policy), and reach the file only through the registrar.
- Factor (VIII) linkage is the most contestable analysis in the set and is worthless without stated alternative explanations.
What a retaining attorney should expect
The deliverable is a matrix: one row per statutory factor, with the records located, the holder of each, the collection date and hash, the period covered, and an explicit "no records located" entry where that is the honest answer. The absences are as much a finding as the presences.
US-specific: the opinion is governed by FRE 702 as amended effective 1 December 2023, and the matrix form has a practical benefit under that rule: it exposes the basis for each statement to the data underneath it.
The report says the record shows, never this establishes bad faith. Counsel argues the factors; the expert supplies the evidence going to them and states where it runs out.