Double jeopardy comes to UDRP.
Last week I wrote about a WIPO domain arbitration case in which a complainant refiled a case after losing the first time. The arbitrator ruled that the complainant didn’t include any information in its refiled case that it couldn’t have discovered and filed in its original case. So he dismissed the case.
But over at National Arbitration Forum double jeopardy is alive and well.
On April 6, an arbitrator ruled that Traditional Medicinals Inc. should not get the domain name MothersMilk.com. Besides the domain name being an obvious generic domain name, the arbitrator ruled that Traditional Medicinals didn’t show any proof of non-use of the domain name:
Complainant claims that Respondent has registered the disputed domain name in bad faith. However, there is no allegation or evidence demonstrating the use or non-use of the disputed domain name. Thus, the Panel cannot make a finding of bad faith on the merits of the case
(Incidentally, non-use by itself does not mean it was registered in bad faith.)
Fast forward a couple months and Traditional Medicinals is victorious. The company filed the case again, and this time got lucky with the arbitrator, who ruled:
Respondent has registered the mothersmilk.com domain name but has not made an active use of it. The Panel finds that passive non-use also supports findings of bad faith registration and use under [the policy].
Basically the same case. Tried twice. Two different outcomes. Sure seems like a complainant appeal process to me. Remember, the complainant has all the time in the world to make sure its paperwork is in order before filing. The respondent only has a couple weeks.
[Hat tip to UDRPsearch.com]