ESQwire.com wins UDRP for client with minority finding of RDNH
Wednesday, September 26th, 2012
A RNDH opinion worth reading.
Ari Goldberger’s ESQwire has helped its client PortMedia defend the domain name Altom.com in a UDRP.
One of the panelists determined that the case was reverse domain name hijacking, and his point of view is worth reading.
The domain name was registered in 2002. Although it was protected by whois privacy for much of the time, I have good reason to believe that the current registrant is the one that registered the domain name back in 2002. It underwent a name change in the interim.
The complainant wasn’t formed until 2008.
On that basis alone, the complaint fails.
While the three person panel found in favor of the respondent, it didn’t fully consider if this was reverse domain name hijacking. It appears the respondent didn’t specifically ask for a finding of RDNH.
But panelist Neil Brown, who believes panelists should consider RDNH even when not directly asked, determined that this is an example of RDNH.
Here’s what Brown had to say:
The Complainant’s case was hopeless from the beginning and should not have been brought. It may well be that the Complainant and its lawyers were not familiar with the UDRP. But even if that were the case, a cursory examination of the Policy shows that certain basic elements must be proved and if those preparing the Complaint find, as anyone familiar with the facts of this case must have deduced, that it would be impossible to prove those elements, the claim should not be brought.
There was never any prospect of proving any of the three elements in the Policy as the facts clearly do not exist to prove them and the Complainant seemed to acknowledge this by not even attempting to prove them. It did not submit that it had a registered or common law trademark or adduce any facts that, even on the most charitable interpretation, showed that it had such an entitlement. Its case on the other two elements was a series of formal assertions and reliance on the fact that the disputed domain name was for sale. It also overlooked the main point about this case which is that the disputed domain name was registered 6 years before the Complainant was incorporated, requiring that for the Respondent to be liable, even in a layman’s sense, it must have had what were referred to in Success Bank v. ZootGraphics c/o Ira Zoot, NAF Claim No. 1259918 as “psychic powers” to predict that the Complainant would be incorporated several years later.
All of this might be put down to inexperience rather than bad faith. But what has swayed me is that instead of dealing with the evidence, the Complainant chose to attack the Respondent’s bona fides and to allege, before it saw the Response and the Respondent’s version of events, that it was guilty of bad faith and that it was “predatory and parasitical”, apparently because it had registered a domain name that the Complainant, 10 years later, now wanted, but which is for sale at a price it does not want to pay.
Such allegations can always be made, but they should not be made unless there seem on reasonable grounds to be facts to support them. Moreover, those who make such allegations run the risk of an examination of their own bona fides, for allegations of bad faith made without supporting facts are themselves a form of bad faith and that is the feature that the Rules require to be in evidence before a finding of Reverse Domain Name Hijacking may be made. When it is then seen on such an examination that its own case, complete with accusations of bad faith and of other allegedly improper behaviour, is not only without merit but entirely baseless, a finding of Reverse Domain Name Hijacking is open and should be made in an appropriate case. This case, on the totality of the evidence is such a case and it is by no means a borderline one.