Public Storage refiles UDRP, panel declines to hear it
Friday, September 7th, 2012
Company upset that decision was different from similar case it filed.
Generally speaking, the only reason a UDRP panel will re-hear a case is if the complainant brings forth new evidence that could not have been discovered prior to the initial case.
But that didn’t stop Public Storage from filing a new case against the owner of publicstoragephoenix.com.
Here’s the background:
In October 2011 Public Storage lost a case against the owners of publicstorage-phoenix.com and publicstoragephoenix.com. The case was similar, in the complainant’s view, to one Public Storage won against the owner of 15 domain names including “public storage” (D2011-1396).
Public Storage refiled the case against the owner of the Phoenix domains in June. It cited the prior case it won, questioning why this result was different. It also noted that the respondent had let one of the domain names expire and concluded that this may indicate something about the respondents’ intentions. (Although the registrar’s whois shows the domain as expired it has been renewed at the registry well past the expiration auto renewal period. The new case only goes after the domain that didn’t expire.)
Since Public Storage called out the apparent discrepancy between two different UDRP panels, the new panel explained that the results of cases can differ based on nuance — and that UDRP isn’t perfect.
Each UDRP case involves its own specific and unique set of facts, with each panel bringing its collective knowledge, expertise, experience and wisdom to the task of deciding the issues involved. Doing so, as with adjudication, necessarily involves some degree of analytic subjectivity whether in assessing the facts and/or the pertinent law, and/or applying that law to the facts to achieve a result, which, in turn, will from time to time yield variable results from one panel to the next. UDRP decisions are not precedential. Though significant efforts are made by panels and the Center to provide uniformity across its decisions that involve highly similar issues and fact patterns and thus avoid inconsistency, complete uniformity is, in practice, unattainable owing, in part, to different perspectives held by different panels and differing interpretations of the facts, the evidence presented and governing law taken by those panels. However, prior decisions that, at first blush, may seem inconsistent may very well, under more discerning scrutiny, appear quite consistent in view of subtle, but key factual differences which were not previously appreciated by the reader.
As you would expect, the panel declined to reverse the decision of the earlier panel.