|... no parody|
The decision of the panel was not wholly unanimous, since one member voiced a dissenting opinion. The minority saw that the deep similarities between the respective websites would cause confusion as to their true owner. Given the nature of the content of Greenpeace's website, it could not be viewed as merely a parody: Greenpeace should have taken further steps to distinguish the parody website from the original.
The panel acknowledged that there was a need to balance the interests of the party holding the trade mark with that of freedom of expression in utilizing the trade marks. Although the majority did not discuss the issue of bad faith in registering the domain names, the minority thought this was an issue of critical significance, regarding Greenpeace as having abused the similarities between the two websites for it own gain, in the form of actual donations and ad revenue, so the domains were therefore registered in bad faith.
Getting the right balance between these competing interests can be tricky. One cannot overly restrict the use of trade marks in parodies: criticism is an essential part of social discourse, and trade marks should not be used as a sword in any and every situation in which an expression of criticism of the trade mark owner makes reference to its trade marks. However, where that use oversteps the line and becomes defamatory or gratuitously insulting, such use becomes difficult to justify.
Thank you, Jani Ihalainen. for preparing this note on behalf of the IPKat.