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  • Domainers are going to love and hate the QLP.com UDRP decision

    1. BY - Dec 17, 2013
    2. Policy & Law
    3. 13 Comments

    Complaint fails, by why did only one panelist find Quality Logo Products guilty of reverse domain name hijacking?

    Get On The Web, Ltd has successfully defended the domain name QLP.com in a UDRP brought by Quality Logo Products, Inc. While the overall decision in the case was good, domain investors are still going to be upset about some of the details.

    The obvious fact here is that QLP.com is a generic domain. It was also registered in 1999. That’s seven years before Quality Logo Products claims to have started using the QLP brand in commerce.

    In other words, unless Get On The Web is psychic, it could not have registered the domain name in bad faith with the complainant in mind.

    Quality Logo Products essentially admits this, but argues it was registered to sell to “some party”. Although Get On The Web had a good alternative explanation for registering the domain name, it really doesn’t matter whether it registered it for resale or not.

    Here’s the essence of Quality Logo Products’ complaint:

    While the Respondent may not have initially registered the disputed domain name to sell it to the Complainant, the Respondent only registered it to sell it for a profit to some party. The Complainant offered to purchase the disputed domain name for a reasonable price, USD 19,500. The Respondent acted in bad faith when it was unwilling to accept a reasonable price, even though the Respondent has absolutely no legitimate use or purpose in holding the disputed domain name.

    Ah, the elusive “reasonable” price.

    As Get On The Web’s attorney John Berryhill pointed out, this is a ridiculous argument:

    The Complainant wants the Panel to decide that the Respondent had an obligation to accept the Complainant’s USD 19,500 offer. Presumably, the Panel is supposed to act as a price arbitration board and determine that bad faith registration and use does not exist at any price up to USD 19,500, but that a penny more renders the disputed domain name to have been registered and used in bad faith. This is, however, an abuse of the Policy as a negotiating tactic, which UDRP panels have seen and addressed many times before.

    This case was dead on arrival, and the three person panel ruled against Quality Logo Products for failing to show the domain was registered and used in bad faith.

    Are you happy that the panel made the correct decision? Good, because you’re about to get mad.

    The majority of the panel did not find Quality Logo Products guilty of reverse domain name hijacking.

    While this is shocking, there’s some good news. Panelist Richard G. Lyon fulfilled his duties and found the company guilty of abusing the process. In a scathing opinion, Lyon wrote:

    We owe it to this Respondent to chastise the Complainant and its representative for their irresponsible conduct. We owe it to the integrity of the UDRP process to call out patent abuses such as I believe this case to be.

    The representative in this case was Golan & Christie LLP.

    Lyon goes on to explain that the complainant clearly knew the domain wasn’t registered in bad faith and filed the UDRP in an attempt to increase bargaining leverage.

    So why did one panelist find RDNH but the others didn’t. Why didn’t the other two panelists agree with Lyon?

    It’s impossible to tell, but there is a detail that doesn’t look good. The two other panelists were Jonas Gulliksson and Christopher K. Larus. The first name may ring a bell, as Gulliksson’s law firm is representing the complainant in the highly questionable UDRP for StableTable.com.

    Would a complainant’s law firm not want to find other companies guilty of reverse domain name hijacking out of fear it would be called out for RDNH itself? I don’t know, but it doesn’t look good. Law firms should either be UDRP arbitration panelists or representatives, but not both.

13 Comments
  • Andrew, thanks for the write-up.

    Yes, it would be a little awkward for Gulliksson if he found RDNH in QLP.com and if the StableTable.com panel then found Gulliksson guilty of RDNH in that dispute and cited QLP.com as precedent.

    As you point out, there is a clear conflict of interest in lawyers serving as panelists reviewing the merits of the same arguments that they make themselves as Complainant’s attorneys.

  • Good to see John Berryhill winning one more case. To maintain accuracy, this statement must be amended: “The obvious fact here is that QLP.com is a generic domain”. By definition, generics are meaningful words; this is an acronym.

    • Good point. What would you call an acronym that could be an acronym for a number of different things?

      • John Berryhill says:

        December 17, 2013 at 10:21 pm

        The word “generic” takes a lot of abuse from domainers. Something is not “generic” as a free-standing proposition. It is “generic for X” – i.e. “apple” is generic for apples; “apple” is not generic for computers. If you mean to refer to a string of letters which are not distinctively or exclusively associated with some entity, then you might say it is non-distinctive or non-exclusive. A “generic acronym” would be something like SCUBA (self-contained underwater breathing apparatus) or RADAR (radio detection and ranging). Of course, Acro has an “Acro nym”.

    • Actually, I think generic is correct in the context of a UDRP.

      I’ve seen you differentiate between generic and descriptive. It’s fair to differentiate, although most of the time I just call something that’s not a trademark or can be branded as generic.

  • Not convinced that reasonable price is elusive. Just put the domain to auction and allow the market to set the price?

    Or if the seller thinks that $19.5k is unreasonable, would he like to tell us of a higher offer in the 14 years he has owned the domain?

    In fairness, auction price can be a little below reasonable, but that’s a small measure of hard luck to a speculator in exchange for a big benefit to the end-user.

  • There is no credibility whatsoever in a judicial system where one person can simultaneously act as the judge in one courtroom and the prosecution or defense in another.

    Impartiality under such circumstances is altogether impossible. No matter how ethical a person attempts to be, the system itself corrupts the decision-making process.

    Court rooms are not impermeably sealed microcosms. It’s EXPECTED that a decision in one court MUST impact decisions in others. So if the rule of precedent is to be meaningful, then a single lawyer will keep an eye on both the case he is judging AND the case he is prosecuting or defending.

    Thanks for bringing this to everybody’s attention. Without wishing to cast blame on the individual, I would suggest — as others have done before me — that the system is so fundamentally flawed as to be illegitimate.

  • So what the domain owner gets a legal bill for a few thousand, sorry for your troubles sir, sheesh there needs to be some compensation, this is not chump chamge, this is abuse of the system.

  • David Gruttadaurio says:

    December 17, 2013 at 6:13 pm

    “Law firms should either be UDRP arbitration panelists or representatives, but not both.”

    Nice job catching this, Andrew.

    So who do these guys (the panelists) answer to? Does anyone monitor their actions?

  • Brilliant defense argument by John Berryhill.

  • Jonas Gulliksson is just doing his job. Getting paid from all sources.
    Doing what he does best: get more clients.
    He will not get more clients by finding RDNH.
    WIPO will not get new clients by dismissing complaints and finding RDNH.

    ICANN and the UDRP providers are to blame in this case.
    Also UDRP provider shopping has to stop. There is no court shopping and there judges should be on both sides.

    But nobody cares. (if they are getting paid)

  • Having read this case write-up, this is the clearest case of Reverse Domain Name Hijacking. If this isn’t Reverse Domain Name Hijacking, then what is ?

    Yet only Richard Lyon is honorable enough to state as such. How can Jonas Gulliksson and Christopher K. Larus dissent from saying so. They need to be accountable and state their reasons.

    This case highlights why the UDRP and WIPO are discredited.

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