Two cases, three different view of reverse domain name hijacking.
Two recent UDRP cases show the inconsistency of how reverse domain name hijacking (RDNH) is applied.
In the first case, Intelligentsia Coffee & Tea, Inc. v. Ashantiplc Ltd, the panel found against the complainant in a dispute over Intelligentsia.com.
In this decision, two of the three panelists said it is the Respondent’s job to prove RDNH.
The majority write:
A majority of the Panel notes that Complainant provided little enough support in its Amended Complaint regarding Respondent’s bad faith that had Respondent pressed the issue, a finding of Reverse Domain Name Hijacking (“RDNH”) —i.e. a finding that Complainant was “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name” —might have been appropriate.
Richard Lyon wrote a concurring decision that argued that RDNH should be found.
“In my view RDNH is a matter the Panel should consider in an appropriate case whether or not a respondent requests it,” he wrote.
Lyon goes on to explain that the purpose of RDNH decisions is not to grant a claim requested by the Respondent, but to protect the integrity of the UDRP process:
A finding of RDNH could be said to be an empty gesture. As with any statement by any panel, it has no collateral estoppel or res judicata effect in any subsequent litigation or administrative proceeding, indeed even in any subsequent Policy proceeding brought by the same party or representative. Limited though this censure may be, though, it is sometimes the only way for a panel to deter future abuse of the Policy and to remind parties and professionals who invoke the Policy of its limits, rules, and means of abuse.
So, is the majority saying that it was an abuse of the policy, but their hands are tied because the Respondent didn’t “press the issue”?
One view of this approach is that since the Policy doesn’t itself provide any criteria for it, and leaves it up to the Panel in a procedural rule (Rule 15e) – instead of the Policy itself, then the Panel should consider it as a matter of procedure. The UDRP doesn’t even mention RDNH apart from the UDRP Rules of procedure, and it is mentioned under the section of the Rules applying to the Panel, not to the parties.
Lyon’s view is similar to that of Neil Brown, who argues that a panel should consider RDNH regardless of whether the respondent specifically asks or argues for it.
The second case pitted Personally Cool Inc against Frank Schilling’s Name Administration for the domain name CoolFront.com.
In this case — unlike the Intelligentsia.com case — the respondent’s attorney asked for a finding of reverse domain name hijacking. (John Berryhill was the respondent’s attorney in both cases.)
The panel considered that the complainant wasn’t represented by counsel. Panels often give the benefit of the doubt to a complainant that doesn’t use a lawyer. For example, in a case over Imagem.com, the panel determined that the complainant was so misguided that it simply misunderstood the policy.
But the three person panel in Coldfront.com pointed out that this isn’t always an excuse — especially in this case, where the complainant was warned ahead of time by the domain owner why his case would fail:
It is true that Complainant appeared pro se, without counsel, but that is not an excuse for clear disregard for the limitations of the Policy. Rather, when there are questions about the validity of the claim – and especially where Respondent offered detailed information about why a complaint would have no merit – it is incumbent upon the Complainant to research carefully the validity of its claims, including if necessary consulting with experienced counsel.