There’s no limit to the number of times a complainant can file a UDRP.
I’ve written a few times about domain arbitration cases in which the complainant re-files a case for the same domain name. It seems kind of like an appeal process for the complainant (an opportunity not afforded to respondents).
After seeing varying panel responses to refiled cases, I was confused about what the rules are for filing a case for the same domain twice. Perhaps that’s because there aren’t any rules.
Kristine Dorrain, Internet Legal Counsel for National Arbitration Forum, explains:
The UDRP is silent as to if disputes can be “tried twice.” Because of this, the FORUM doesn’t limit the number of times a complaint may be filed against a particular domain name. Each panel then gets to decide what to do with the issue of cases being re-heard.
But there’s the rub. By the time a panel decides whether or not to hear a case, the respondent has filed his response, and thus already paid for legal defense (again) and perhaps a three person panel (again). You can see how a complainant could merely refile the same case over and over, just to wear down the domain owner.
Dorrain explained that many panels use the United States principle of “res judicata” to decide if they should hear the case. This principle basically says the case should stand unless there is a compelling reason. A compelling reason may be new evidence that could not have reasonably been discovered at the time of the original filing.
This can become interesting when the complainant doesn’t tell the panel that the case was filed before, as Dorrain explains:
One particularly interesting issue is where parties don’t tell the Panel of a previous UDRP filing. If the complainant does not disclose this information, the Panel may not be aware that the case is refiled. This is most often seen when a party files with one Provider, loses, then files with another Provider.
An example is the recent MothersMilk.com case (although both the first and second attempt were filed at National Arbitration Forum). The panelist’s decision in the case doesn’t indicate any previous filing and what may be different in the second filing. But it’s a prime example of why a company might want to file a case a second time — the complainant lost the first case but won the second. The second case was heard by an arbitrator known for favoring complainants.
I’m sure the JDs can enlighten us better.
But, Andrew, you point is a valid question.
If we lose an arbitration case, there is a prejudice held against us in future cases.
Why isn’t there a prejudice held against complainants who file frivolous and reverse hijacking attempts?
I know of a young lawyer over the past 2 yrs who has been buying and developing prime words in .biz and .us. And, have applied for TMs for those words.
I suspect he plans to eventually go after the .com in the future.
For the domain, development, hosting and TM will be less than $ 1,000. Add another $ 1,500. for filing UDRP.
His total cost will be less than $ 2,500.
And, he has a chance of owning prime .com’s that would normally cost him $ xx,xxx to $ xxx,xxx. Multiple that times 50 domains, he could be a millionaire within 5 yrs.
I’m positive he will be one of the guys that keep filing til he wins.
@ Domain Investor – in the case of a refiled case, the panel can decide that it is being refiled to harass the domain owner. But they don’t have to decide that.
For an intersting lesson on how there are no real rules for re-filing, or least nonoe that Panelists consistently follow look at these cases to get a better understanding of what some Panels have found. Creo Prods. Inc. v. Website in Dev., D2000-1490 (WIPO Jan. 19, 2001); Grove Broad. Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000); CommScope, Inc. of North Carolina v. Herbert Kuehleitner FA1260847 (Nat. Arb Forum June 29, 2009);Cluett, Peabody & Co., Inc. v. Sanford Bus. Writing Serv., FA 95842 (Nat. Arb. Forum Dec. 12, 2000); Jones Apparel Group Inc. v. Jones Apparel Group.com, D2001-1041 (WIPO Oct. 16, 2001)
UDRP & the NAF although a novel idea, are just completely nuts IMHO at this point. Every day something new gets uncovered about all of this that is just ridiculous. Keep posting these stories, I think it may help move things along a little faster as I don’t think UDRP and NAF can keep going in their current incarnation for much longer.
Although I think UDRP needs reform, most lawyers I talk to say it’s still better than the wild west before it was introduced.
“If the complainant does not disclose this information, the Panel may not be aware that the case is refiled.”
Not quite sure what to make about this, Andrew. I wouldn’t expect the Complainant to disclose they lost. However, if I beat someone in arbitration and they’re dopey enough to refile the first thing I would do is point to the original decision.
Shouldn’t the panelist be required to check whenever a response isn’t submitted?
The MothersMilk.com panelist, Carolyn Marks Johnson, didn’t check. Incidentally, she has been sued for judicial misconduct.
I would think the arbitration company should check.
@Andrew, so are you proposing that the UDRP rules be changed where a panelist is assigned to the case immediately so that it can be potentially “quashed” so that the domain owner doesn’t have to incur any unnecessary time and legal expense?
@ UDRPtalk – I think that would be a reasonable approach. Perhaps the respondent is notified that a case has been filed, but that they should hold off on submitting a reply until the panel submits a decision with regards to if it should go forward. If the panel then decides it should go forward, the clock will start for the respondent. This would also save the panel the time of reviewing the respondents submission, which I believe they end up doing even if they decide not to render a decision on the case.
@Andrew, I’m glad we are on the same page. The decision to “quash” should only be done by a skilled panelist because the arbitration companies are just “clerks” and aren’t skilled enough to spot all the instances where a case should be “quashed”.
For example, the complainant could “fool” the clerks by simply moving paragraphs/exhibits around or even rewording/rephrasing portions resulting in nothing new being introduced and essentially the same case being filed again.
So you see, the skills needed are beyond “clerical” to detect all the opportunities for “quashing” that are beneficial to the respondent.
Just remember that the NAF and WIPO are in the business of making money. They have no motivation to change their policy unless groups like the ICA and other domain industry professionals complain. The NAF and WIPO could remedy this problem by simply asking in the cover form the complainant files whether there are any related UDRP actions (current or former) against the respondent. This would not only tell them whether a complaint has been filed against the same respondent but also would allow for of parallel complaints between the same parties to be consolidated, which would make administration of the procedure more streamlined. The major problem here is that there is no procedure for the respondent to move to dismiss based on res judicata. Respondents cannot take aggressive tactics like they can in federal court.
As I agree that the UDRP domain arbitration process is better than nothing, it is up to the domain community, the one paying the fees to fight these domain arbitrations, to be more vocal and add pressure to change the rules.