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National Arbitration Forum FAIL

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.

Incidentally, Traditional Medicinals is the same company that swiped the generic domain name SmoothMove.com from WorldWide Media. WorldWide Media sued to block the transfer.

[Hat tip to UDRPsearch.com]

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  1. Johnny

    National Arbitration Forum needs to admit it’s failures in it’s duties.

    They have many uninformed, and thus unqualified, panelists making these stupid decisions.

    I hope Traditional Medicinals becomes known as a thief of domains also for trying to steal domains by means of a weak UDRP system.

  2. Shahram

    Since when does non use become bad faith? Thats pretty much like saying “Hey i can take your vacation home and keep it cause your not using it.”

    Well i guess we have to keep in mind that the UDRP process is like playing russian roulette with no protection to the domain owner. Just like in court you get one chance to state your case and with all of the facts given the first time is what you can use in arbitration.

    Arent there any rights for the registrant?

  3. UDRPtalk

    Passive holding of an inactive generic name is NOT bad faith.

    What planet is the arbitrator, Carolyn Marks Johnson, from? Hasn’t she some common sense about the descriptive phrase “Mother’s Milk”? She should have known better; she’s handled several UDRP cases.

    Plus, it’s outrageous that the arbitrator allowed this case to be retried again considering that no new evidence appears to have been contributed between the cases. Responding to a UDRP is not a requirement in order to prevail, so therefore the arbitrator should confirm that new evidence is being submitted between trials especially since no response was presented. Obviously, that verification never occurred since the arbitrator did not make any mention of the past case or the lack of new evidence being contributed.

    This case appears to be a combination of “If at first you don’t succeed, then try try again” and “Use it or lose it” without any regard to genericness.

  4. Lda2

    This is madness.

    Systematic acquistion of resources as a prelude to launching a business is STANDARD PROCEDURE in commerce, and has been forever.

    During this period, which has no time limit, a business person is a fool to telegraph what is coming to rivals.

    Now apparently, careful and diligent preparation will be seen as bad faith !!

  5. Domain Investor

    What constitutes non-use?

    So, if I owned an ocean front parking lot which is generating a little bit of revenue, I guess this panelist would take it away from me.

  6. Domain Investor

    “Respondent failed to submit a Response in this proceeding.”

    In both cases, the respondent failed to respond.

    Lets be realistic – that is probably why they lost.

    • Andrew Allemann

      @ Domain Investor – the fact that the respondent didn’t respond makes this case even more interesting. The respondent’s “facts” didn’t change because there were never any submitted.

  7. Domain Investor

    I realize it shouldn’t be this way but I believe many of the panelist figure if the respondent doesn’t respond, the respondent feels they are guilty.

  8. Darren Spielman

    Andrew, Your comment that “In this case the person probably didn’t receive the complaint.” assumes that all domains contain accurate WHOIS information. The debate of accruate information will rage on for a while, but my best interpretation is that panelists use that concept heavily.

  9. Johnnnn

    The more ridiculous decisions I keep seeing from both WIPO and and NAF, it makes it all clear to me, to stay in business they have to favor the complainant, after all the fees come from the complainants, not from the respondents, by favoring the complainants,even in ridiculous cases, they incurrage other complainants to file and keep business coming in. The arbitration system should be overhauled or done away with, and let the courts decide.

  10. Steve Z

    If you research the many cases out there, non use being bad faith is almost like flipping a coin. As crazy as this is it happens quites often. Thats why if it were me I would pay for a panel, but then again now we must pay to upgrade to a panel to defend our names. The system need a major overhaul.

  11. ben

    Carolyn Marks Johnson sole source of income seems to be from being a panelist. She always rules in favor of complainants, so she gets picked over and over. NAF needs corrupt panelists like Carolyn Johnson to stay in business.

    Some common tricks used by NAF over and over is to not accepting resonses filed by respondents for various ridiculous reasons or not contacting the respondents. I for one will in due course be organizing a class action against this entity and forcing them to open their complete records./ correspondence log.

  12. Richard Wixom

    ..”passive non-use also supports findings of bad faith registration and use…”.

    Aren’t panelist required to follow the laws/rules and precedence? Was this panelist from Mars? And could this unreasoned and wholesale change now become a basis for future rulings? Scary.

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