NMC.com Domain Name Spared at Arbitration Despite No Response

Prolific panelist makes the right finding (this time).

National Arbitration Forum panelist Carolyn Marks Johnson is no friend of domain name owners. An early study of arbitrators found that she was one of the most prolific and biased, finding for complainants 97.2% of the time (compared to the typical 82.9% at the time). She was also recently sued for alleged judicial misconduct.

But she managed to find for the respondent on NMC.com, despite the respondent not filing a response to a case brought by Nebraska Machinery Company.

Mind you, it was pretty straightforward. NMC.com was registered in 1998, and Nebraska Machinery Company didn’t start using the NMC mark until 2007. I can’t help but wonder “if NMC had started using the mark prior to 1998, would she have handed the domain over even though it’s a generic three letter mark?”

After all, she found in favor of the complainant for Freebie.com, even though the respondent owned a company called Freebie, Inc. that used the web site for a “points site” for Blockbuster Video. That decision found its way to court, where two separate courts found that the UDRP was flat out wrong. The first court decided that the UDRP was “unsupported by the evidence” and should be reversed. An appeals court agreed.

She was also the arbitrator on the recent MothersMilk.com case. She was the second arbitrator to hear what amounts to basically the same case. The first arbitrator ruled in favor of the respondent; Johnson found in favor of the complainant.

But I guess I shouldn’t complain in this case. Regardless of the rationale, the end result is correct.