Lawsuit falsely presumes domain owner is offering to sell the domains. And that’s just part of the problem.
In December I wrote about a UDRP for BidPal.com filed by BidPal, Inc.
I noted that the UDRP decision against the complainant was probably correct, but that BidPal’s lawyer screwed up the research as well.
BidPal, Inc. has now filed a federal lawsuit(pdf) to get the domain name as well as “BidPal” in several other extensions. It also found itself a new lawyer who seems equally confused about domain names. That or he’s trying to mislead the court.
The lawyer, Overhauser Law Offices, holds his hat out as an IP lawyer with experience in domain name disputes. The only UDRP I could find that he did was a
loss on behalf of DISH Network win on behalf of the respondent in a case filed by DISH Network.
OK, let’s back up. BidPal Inc. uses the domain name BidPalNetwork.com. It admits that the reason it does this is because BidPal.com was already registered when it went to register the domain:
Because of Registrant Defendants’ cybersquatting behavior with respect to the Infringing Domain Names, BidPal has been forced to use another domain name. The name BidPal chose as the best alternative available was the far-inferior domain name “www.bidpalnetwork.com”.
Got it. So Bidpal.com was registered already, the company had to use a “fair-inferior” domain name, but it really wants the better domain name that was already taken. That’s part of the reason BidPal lost its UDRP. The three person panel found it wasn’t registered in bad faith as it was registered well before the company even came into existence.
So Overhauser and BidPal turn to the argument that the domain names were renewed in bad faith. I don’t like that argument, but ultimately the company has to make a stretch somewhere to make its case work.
The lawsuit also appears to be both in rem against the domains and against the domain registrant. The company says it hasn’t been able to get in touch with the domain owner, despite the owner responding to original UDRP. (Oh, and this case doesn’t mention anything about the loss in the UDRP, which I always find disingenuous.)
I question if filing in rem in Indiana against domains powered by multiple registries is going to work. Usually you have to file in the registry’s jurisdiction. If you want to get sneaky, go for an in rem in Verisign’s backyard for the .com, then work on the others.
Yet all of this is trivial to the big gotcha in the case, where either BidPal and its lawyer are trying to fool someone or it just didn’t do its research. I’m willing to assume the latter.
Here’s what the lawsuit tries to show bad faith by the registrant trying to sell the domain name:
The BidPal.com website redirects to a “parked” page (a free services offered by GoDaddy to websites which are not actively offering bona fide products, services and/or information). On that page, a visitor is invited to “Learn how you can get this domain [name].” Upon clicking on that link, the visitor is directed to an offer to engage a domain-buying service to acquire the name. An example of such an offer to sell an Infringing Domain Name, presumably made by either Peterre and/or InterMediaOne and/or InterMediaOne-AGB, is shown on the website at BidPal.com’s parked-for-sale page…
This “presumption” is wrong and the lawyer could have figured that out by doing a few minutes of research. GoDaddy places this link on a lot of the parked pages to promote its Domain Buy service. It has nothing to do with the domain owner. The product description itself states that they’ll just try to contact the domain owner to see if they’re willing to sell the domain.
Misleading or just poorly researched, I think this lawsuit stinks.
[Update: the parties settled and the plaintiff now has the domains.]