Domain bought for $18,805 earlier this year saved in UDRP, but it was closer than it should have been.
In September, I wrote about the domain name Bespoke.com being hit with a UDRP after the buyer paid $18,805 to buy it in an expired domain name auction.
A three person WIPO panel has denied the UDRP, but one panelist dissented and the panel did not find reverse domain name hijacking. I find the dissent appalling.
Originally, it appeared that the complainant may have been the company that previously let the domain name expire. That does not come up in the written decision, nor does it mention that the respondent acquired the domain name in an expired domain auction.
It appears, from my reading of the decision, that complainant Bespoke Services Group S.A. of Switzerland is a newer company. The complainant has an internationally registered design mark from 2013 that includes Bespoke plus a graphic include BSPK, and it submitted a business plan for its company that refers to the domain name bspk.com (which is parked). That domain name doesn’t appear to be even owned by the complainant. I can’t find a company website in Google.
All indications are that this is a business that hasn’t gotten off the ground yet.
The majority of the panel considered this, and the fact that bespoke is a generic term, to find that the complainant didn’t show a lack of legitimate interests, nor was it registered in bad faith.
It did not, however, find Bespoke Services Group guilty of reverse domain name hijacking, stating “Although the Complaint is weak, it appears that the Complainant may have misunderstood the requirements of the Policy, rather than being motivated by bad faith.”
This is unfortunate. The complainant appears to have been represented by counsel. And, regardless of whether the complainant misunderstood UDRP, it still caused the respondent to have to spend money to defend its domain name.
Perhaps the majority of the panel didn’t find RDNH because a third panelist, Nathalie Dreyfus, amazingly found in favor of the complainant. [Update: many people have pointed out that Dreyfus often represents complainants in UDRP cases.]
Think about this for a moment. Would you spend close to $19,000 in a heated domain name auction to buy this domain name with the purpose of selling it to a little known company? That’s a lot to pay for a domain for this purpose.
I should point out that the case doesn’t mention the acquisition at this price in an expired domain auction.
It’s not clear if Dreyfus knew this. I’ve heard form the domain owner that the panel was aware how much he paid for the domain. Still, her commentary on the matter is baffling given the domain name at issue.
She seems to focus on the fact that the parked page at Bespoke.com had one or more links relating to financial services, which is apparently part of the complainant’s business plan.
…The majority of the Panel focused on the descriptive nature of the word “bespoke” and therefore its registration as a domain name would be legitimate. However, as it was pointed out, the legitimacy is lost if the Respondent is seeking to exploit the Complainant’s trademark.
…concerning the Respondent’s awareness of the trademark at the moment of the disputed domain name registration, the Dissenting Panelist disagrees with the majority of the Panel. Given the international registration of the Complainant’s trademark, a simple search on the WIPO Global Brand Database would have sufficed to reveal it.
….The Dissenting Panelist finds that the Respondent’s only interest in buying the disputed domain name was to sell it for valuable consideration in excess of its out-of-pocket expenses, either to the trademark’s competitors, or to the trademark owner.
It’s ridiculous to suggest that the respondent acquired the domain name to sell it to the specific complainant or any a competitor. I personally was bidding in the expired domain auction for this domain name, and that was based solely on this word’s common usage. In addition to its usage in clothing, it is used to mean anything made-to-order.
In fact, a UK software company paid $8,800 for the domain name BespokeSoftware.com for its software development services.
The respondent in this case certainly hopes to sell the domain name for a profit. But suggesting its value is based on anything other than its generic meaning is ridiculous.