Losing complainant posts all documents online, including price negotiations.
When Domain Name Wire reports on UDRP decisions, usually all we have is the panelist’s write-up of the decision. This typically includes the panelist’s summary of each party’s case, but not the entire written complaint and response.
In the case of Overus.com, which the respondent just won, the complainant actually posted the full complaint online — including evidence he submitted that was rather damning to his case.
The complaint was filed by Keith J. Miklas, d.b.a. The OVerus Organization, which owns Overus.org.
OVerus promotes a label that food companies can put on their products “that respect Christian values”.
Along with the full complaint (pdf), Miklas posted the sales inquiry communications for the two times he tried to buy the domain.
The communications show that, rather than someone who thinks a domain owner is cybersquatting on his trademark, Miklas is just trying to buy a domain to help his organization ramp up.
He labeled the attachments “price negotiation”.
In response to the domain owner asking Miklas how much he’s willing to pay for the domain. on August 28, 2012 Miklas writes:
Hi Stu,
Well, I’m trying to get a non-profit off the ground, which is never easy.
Would you take $50?
The domain owner responds with an asking price of $5,000, to which Miklas responds:
Wow… yeah… at this point I’m not even close to that number. I haven’t even made $5,000 gross with the current business model.
If the business takes off and justifies the cost of this domain I will email you back.
Does this sound like someone who thinks the owner of Overus.com is violating his trademark?
It also draws into question the level of trademark rights he has in the “Overus” name despite the federal registration. Further, I don’t see any notice on the web site that it’s a non-profit, as he asserted. His follow up communication seems to be about a business, not a non-profit.
In the “second price negotiation” (pdf) from March to May 2013, Miklas offers $100 and then $150.
The $150 offer is followed by “If this goes well I will look at the other domains in your portfolio”.
He follows up with another offer for $1,000 in May, asking for a response by May 20.
On May 20, he sends a cease and desist letter.
Nowhere in the two negotiations does he assert that the respondent is infringing his mark.
The single member National Arbitration Forum paneled ruled that the complainant failed to even make a prima facie case in support of its arguments that the respondent lacks rights and legitimate interests in the domain.
Tom says
Yes, once the person engages in negotiations, they have waived their right, and going against this would be construed as bad faith by the inquirer.
rob sequin says
No RDNH?
How about a section for “attempted” RDNH?
Andrew Allemann says
@ Rob Sequin – the panelist really punted on RDNH, saying that b/c the complainant and respondent agreed that the complainant had some rights in a mark that was similar to overus.com, that RDNH wasn’t warranted.
Colin says
I love the way he went back with a $100 offer after they said they wanted $5k. Hahaha that is brutal.
Adam says
Seems like a case study of how 99% of udrp complainants likely think.
Tom says
There are ways to fight. You just have to have the passion and energy to fight for what’s right.
FIRST COME FIRST SERVE.
Mike says
LOL ,he was in such a rush he has put
“ICANN COMLAINT” (missing the “P” . He must be really “p”‘d off.
Michael says
In the C & D letter he also threatens to file a lawsuit based on the Lanham Act. Just because he lost the UDRP does not mean he can not move forward with the lawsuit. I don’t know if the Lanham Act works the same way with regard to owning the domain prior to the trademark being filed. I would think for the Lanham Act to come into play, the domain owner would have to be blatantly infringing on said trademark.
DaveZ says
Just skimmed the decision. More or less, is this part:
Why it lead (overall) to this result?
Andrew Allemann says
@DaveZ – I’d call it laziness.
Dough nuts says
@tom Yes, once the person engages in negotiations, they have waived their right, and going against this would be construed as bad faith by the inquirer.
Um, nope!