No, AAA doesn’t own exclusive rights to ‘AAA’.
[Editor’s note: If you don’t have time to read this entire article, skip to the quote from Houston Putnam Lowry at the end. He believes the entire business model of registering generic domain names for later sale is prohibited under UDRP.]
In a brazen attempt to get control of a three character domain name, automobile club AAA has lost an arbitration case for AAA.net.
AAA argued that the domain name was confusingly similar to its trademark and that the domain was used in bad faith because it hosted pay-per-click links. It appeared that the owner of the domain went out of its way to not show links related to the automobile club. The lead panelist cited one example of links AAA provided that the club said shows the domain included links related to it:
Second, Respondent’s pay-per-click advertisements are generally not related to the goods or services associated with Complainant’s mark. While Complainant has found among the sea of auto-generated advertisements some related to its business, these appear to be few, and do not seem likely to create or exploit consumer confusion, and on this record could plausibly have been inadvertent. For example, Complainant submitted one screenshot with over a dozen advertisements, two of which mentioned mortgages—links for “Bad Credit Mortgages†and “UK Mortgage Loans.†Because such advertisements are auto-generated and rare, they do not appear to be targeted at Complainant’s mark.
Not only were they rare, but they only related to a secondary product of AAA.
The majority of the panel found that the owner had rights or legitimate interests in the domain and did not register it in bad faith ten years ago.
The lead panelist did not find reverse domain name hijacking. However, The Hon Neil Brown QC, who has written a guest article for Domain Name Wire about how panels fail to find reverse domain name hijacking, wrote a dissent on RDNH. Brown wrote:
…Complainant made some very serious accusations against the Respondent, namely that its conduct was “unsavouryâ€, that it was playing “fast with the facts and the lawâ€, making “false statements†and “blatantly false†ones and that it had shown “willful blindness†even in registering the domain name. Allegations of that kind, like the allegation of bad faith itself, may of course be made in UDRP proceedings, but if they are not supported by facts, which is the case in the present proceeding, parties run the risk of adverse findings against them.
One of the panelists dissented on the entire case, suggesting that AAA should have been awarded the domain. Panelist Houston Putnam Lowry wrote:
Respondent’s business model is to take generic words and/or letter combinations and to register them as domain names. Once someone wants to acquire the domain name, Respondent will sell it (presumably at a profit, otherwise Respondent could not stay in business). This Panel believes such practices were intended to be prohibited by the policy, even though this case is a close call.
Ari Goldberger of ESQwire.com represented the respondent.
Regarding the dissenting panelist. NAF & WIPO should not hire panelists that are not qualified regarding the space.
Would you hire a Traffic Court lawyer to handle your divorce?
I’m sure there are a variety of different categories of cases that NAF & WIPO handle. They should make an accredation/certification test to be able to arbitrate for each category. The more categories a panelist is certified in the more cases they can do, and the more money they can make.
Thank goodness this was a 3 member panel.
AAA organization owns the .com.
I noticed it was mentioned about profanity being on the site. And, Ari rebuttaled that the site was hacked. That is understandable.
I went to DomainTools and I noticed that the pprofanity was there for years.
I have a feeling this domainer was sticking his finger in the air at the .com.
Well, his expression of contempt just cost him $ 5K in legal fees and $ 1K in having 2 add’l panelist.
If a domainer knows he has a potential threat, why challenge them?
AAA organization didn’t want the PR problems of AAA customers visiting the .net and seeing the profanity.
He was lucky.
@ Domain Investor – I always thought the profanity was something that was triggered when the DomainTools bot hit the site for a screenshot.
@Domain Investor – Well that changes things. Maybe AAA should refile in light of this new development.
Seems that dissenting panelist is making up his own UDRP guidelines. If such use was “intended to be prohibited”, why did he not site any line in the UDRP even remotely supporting that OPINION? He didn’t because he can’t. Its an crime this guy is a panelist, he needs to be fired.
I agree that he should not ever work a UDRP again….fire him! He is totally unqualified.
He thinks the only way to make money is be selling domains? What an amateur.
Domains can’t be sold? Where did they find this clown?
At the cost of $5,000 to snag a domain name from its rightful owner versus paying 6 figures plus to acquire the domain name aaa.net, it makes economical sense to get the domain through WIPO knowing that 90% of the time, WIPO will award the domain to the complainant. The ironic thing about the whole matter is when WIPO receives a complaint, it is assigned to a case manager who has dealt with similar cases, and in return the case manager will pick a panelist who has rendered a decision for similar cases. So the advice is – if anyone gets a notice to cease and desist, and after WIPO has hired the panelist, you had better check what the panelist’s decision was in the past for similar cases. If the panelist’s decision on those similar cases was to transfer the domains to the complainant, the advice would be to hire an additional panelist and pay the extra $1,000, otherwise you are dead in the water. Don’t forget that WIPO was created to protect trademark holders, who can afford to pay the $10,000 cost for a trademark. The respondent is at the mercy of WIPO until there is a consumer protection agency that can protect the small guys who can only afford a couple hundred dollars to defend themselves.
Panelist Houston Putnam is clearly one of those
“arbitrators” that are either crooked, incompetent or biased.
He has no business deciding cases where impartiality is a requirement of the job.
Regarding the profanity on the web site, it was argued by the respondent and recognized by the Panel that the same profanity appeared during the same period of time in the Domaintools.com thumbnails. It was not clear whether the pages ever even appeared at all or whether the Domaintools.com thumbnail was incorrect. Either way, what was convincing to the panel was that there was no apparent connection between the profanity and the complainant since the same thumbnails appeared on numerous pages for no apparent reason.
To clarify on the previous comment, the main point was that the same profanity appeared on numerous OTHER DOMAIN NAMES associated with the respondent. Accordingly, there was no evidence of any animus directed by Respondent to Complainant, nor was there even any evidence that the pages actually appeared at all, and were simply the result of a hack or, perhaps, a flaw or idiosyncrasy in DomainTools software.
To: Houston Putnam Lowry:
“Hey guy… buh bye”
AAA means nothing to me as a UK citizen, I don’t associate it with any particular company. The UDRP process if far to US centric and it’s about time panellists realised there’s a whole world beyond America.
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Houston Putnam Lowry wrote:
Respondent’s business model is to take generic words and/or letter combinations and to register them as domain names. Once someone wants to acquire the domain name, Respondent will sell it (presumably at a profit, otherwise Respondent could not stay in business). This Panel believes such practices were intended to be prohibited by the policy, even though this case is a close call.
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This just shows what a mess the UDRP/NAF is, when one of its own appointed panellists makes such a ridiculous statement.
What a load of b.s.!! There are now dozens of businesses online that have paid millions for their generic domain names, and thousands that have paid six figures. And this guy says openly “y’all shoulda just come to me and paid me a few grand and I’da taken it for y’all”.
For the love of democracy, freedom and capitalism and everything else that we cherish that requires a level playing field, please, someone, please put a bullet in this man’s head NOW!