Filta.com case calls into question (lack of) incentives of UDRP arbitrators.
I recently read through documents related to Filta.com, a domain name awarded to the complainant in a National Arbitration Forum case on April 23.
The case is disturbing on a number of fronts. If you just read the decision, you’d think this was a fairly simple case (although you’d probably wonder how a trademark to the term “Filtafry” gives you rights to the name “Filta”).
But what really happened is disturbing.
The respondent Donnacha Mac Gloinn submitted a detailed response to the complaint. Apparently it was received 44 minutes past the deadline for consideration. Rules are rules, and it was late. But an arbitrator can choose to consider a late filing, and they usually do if it includes information vital to the case. In this case, arbitrator Louis E. Condon ignored the filing, even though he postponed providing a ruling on the case for a week due to “extraordinary circumstances”. (Condon was also the arbitrator for the controversial Versa.com case. He has found his last 50 plus cases in favor of the complainant. Two phone numbers found online for Condon were disconnected.)
It would seem that if you were to delay a case for a week because of your own circumstances, you would cut someone slack on being 44 minutes late. But the incentive for a UDRP panelist is to just take the payment and issue a simple ruling, usually in favor of the complainant. The evidence in the response was substantial and would have made the case very complicated.
It’s a frustrating case for Mac Gloinn, especially since the complainant made several claims in its filing that are either questionable or clearly incorrect.
-Mac Gloinn alleged in his response that the complainant (The Filta Group, Inc.) didn’t have the trademark for Filtafry and provides detailed reasoning; Filta claimed the trademark holder was a predecessor. Regardless of the merit of this issue, it’s something the arbitrator would have normally considered.
-Filta provided a print out of a DomainTools whois record for Filta.com. It said DomainTools was an online marketplace for selling domains, so it claimed this was proof that Mac Gloinn wanted to sell the domain. (In Filta’s additional submission, it said it misunderstood DomainTools, but that since DomainTools showed that the domain was registered at ResellOne.net, it was proof that the domain was for sale.)
-The complainant said Mac Gloinn had Sedo contact it to offer to sell the domain. Documents provided by Mac Gloinn prove that the complainant used Sedo to contact the owner previously.
-Filta’s complaint included this line:
In an email response to a communication from Complainant before the Complaint was filed, Respondent said on November 13, 2008 that “the domain name was currently not being used and had not been since it was purchased in 2002â€ (See a copy of the Respondent’s e-mail attached hereto as Exhibit “Eâ€)
This quote does now exist in the exhibit.
When Mac Gloinn pointed this out in his response, Filta wrote “Filta acknowledges misusing quotation marks in paraphrasing Respondent’s words”. Condon didn’t consider the additional submission by Filta, citing lack of payment with the submission. But the payment was actually received by National Arbitration Forum. Filta declined to comment for this story.
I’m not sure which way the case would have gone had all of the facts been considered. But domain names are important, and it seems that UDRP arbitrators don’t always treat them that way. To be sure, UDRP arbitrators are underpaid when they work on complicated cases. Perhaps that’s what needs to be fixed.