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  • Panelist Blasts Credit Europe Bank for “Flagrant Abuse” of UDRP

    1. BY - Aug 02, 2010
    2. Policy & Law
    3. 9 Comments

    Lawyer states that his client’s interests are more important than domain owner’s, so they should get the domain name.

    Credit Europe BankA World Intellectual Property Organization domain arbitration panelist has some harsh words for Credit Europe Bank and lawyer Novagraaf Nederland after it brought a case against the owner of CreditEurope.com.

    The registrant of CreditEurope.com got the domain name in 2003, several years before Credit Europe Bank started trading under the Credit Europe name. In its case, Credit Europe’s lawyer said the business had been in existence since 1994, but failed to mention the name change.

    Panelist Richard Lyon said Credit Europe tried to mislead the panel with this omission, violating the lawyer’s certification, required by paragraph 3(b)(xiv) of the Rules, “that the information contained in this Complaint is to the best of Complainant’s knowledge complete and accurate, . . .”

    Lyon also said the complainant violated paragraph 3(b)(xiv) for not suggesting a reason the panel should deviate from significant precedent that a domain name registered prior to the date a trademark is used can’t be registered in bad faith.

    But perhaps most troubling in the dispute is the Credit Europe lawyer’s claim that it is more important than the domain owner, so it should get the domain name. The lawyer literally wrote:

    It should be clear that my client’s interests are more important and carry bigger weight than the interests of the Respondent, and therefore it is justified if the domain name is transferred to [it].

    Wow.

    Richard Lyon responded:

    Bluntly stated, Complainant, or Complainant’s representative, seems to believe not only that under some inchoate and undisclosed standard that Complainant has a greater entitlement to the domain name than Respondent, but also that this belief justifies relief in a UDRP proceeding. This latter assertion of course has no foundation in the Policy, and its use constitutes a flagrant abuse of the entire UDRP process

    Lyon said Credit Europe had “no excuse” for its failure to understand UDRP.

    Amazingly, Lyon was the only one of three panelists to find Credit Europe brought the case in an attempt at reverse domain name hijacking. All three, however, believed the domain name wasn’t registered in bad faith.

    The respondent was represented by domain name attorney John Berryhill.

9 Comments
  • “This latter assertion of course has no foundation in the Policy, and its use constitutes a flagrant abuse of the entire UDRP process”

    Still no reverse high-jacking decision on something as obvious as stated by the complainants? They basically said that they just felt they were entitled to the name so give it to us. With panelists not slapping heavy fines on these obvious reverse-high-jacking companies where is the disincentive to stop filing more frivolous udrp’s?
    Congratulations to Mr. Berryhill. Lucky respondent.
    Could the respondent not proceed to a real court with this decision and sue them a new “*&$hole?
    Best Regards.

  • Expect to see a similar case before too long – Metro Bank opened in London last week and don’t own either the .com or .co.uk – I imagine at some point they will try stealing these through the courts. Owners beware.

  • Could they not use this decision to proceed to a real court and sue for real damages for the reverse theft attempt? A strong fine or penalty for this type of abuse awarded in a real court might make people/companies think twice before trying to steal domains.

  • Jim Davies says:

    August 2, 2010 at 7:01 pm

    Is the decision up yet? I can’t see it on the WIPO page.

  • They’re coming for your domains, people. Sell your good generics while you still can; because the cards are stacked against you…UDRP/WIPO is not your friend.

  • Jim Davies says:

    August 3, 2010 at 8:09 pm

    Thanks John, there wasn’t a live link to the decision when I looked. :)

    Nice work on the case. Isn’t bad faith meant to be a unitary standard? If so, how e.g is failing to search IP databases an act of bad faith (for a registrant) – while giving a deliberate false impression that a mark was first used some 12 years earlier than its actual first use is not an act of bad faith?

  • John Berryhil says:

    August 3, 2010 at 10:06 pm

    Well, Jim, I asked that question.

    In the complaint, they said they’d used the mark since 1994. In their supplement, Ms. Koopman of the Novagraaf Nederland firm said it was an error based on a “miscommunication” with her client.

    The problem with her explanation is that the law firm ALSO filed all of the trademark applications and registered all of the domain names when the bank changed their name. So, even her excuse for false statements in the complaint didn’t make a lot of sense.

    Now it could be a simple matter of local standards. Apparently, in the Netherlands, attorneys can do that sort of thing. Since a Dutch attorney was appointed to the panel, I specifically asked the Dutch panelist whether that was normal behavior there.

    I guess it is, since it obviously didn’t strike Mr. Leppink as being at all unusual. So, if you want to make stuff up, hire a Dutch lawyer.

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