Pigs, ants, elephants, and elk.
Domain name attorney John Berryhill has an animal fetish. When it comes to UDRPs, anyway.
Now you can add Elk.com to that list.
I first wrote about this nonsense case back in March. Now the decision has been handed down in favor of the domain owner — with a finding of reverse domain name hijacking.
The case was brought by is ELK Accesories Pty Ltd., which has a web site at elkaccessories.com.au.
The owner of Elk.com registered the domain before ELK Accesories registered a trademark for Elk.
In a scathing analysis of why this case was reverse domain name hijacking, the three person panel blasts ELK Accesories’ counsel and the complainant. Here are some of its choice words:
Initiating domain name dispute resolution proceedings necessarily involves putting the parties to a considerable expenditure of time and in many cases cost and the Policy must not be used unless the complainant has a reasonable and credible belief it is entitled to succeed. In particular, proceedings must not be commenced in an unjustifiable attempt to pressure a domain name owner into releasing a legitimately held domain name predating any trademark rights held by the complainant, see Sustainable Forestry Management Limited v. SFM.com and James M. van Johns “Infa dot Net” Web Services, WIPO Case No. D2002 0535.
In that regard it should also be said that the Complainant has entirely misconceived the nature of the proceedings it has brought. It says in the Complaint that it, the Complainant, “is a more appropriate owner and to which it has better rights that the Respondent.” It has been said many times that this is not the test or even one of the tests of success in UDRP proceedings, which are concerned with abusive registration of domain names.
Finally, it should also be said that it was the Complainant who, on no evidence at all, accused the Respondent of acting in bad faith. That, itself, is an act of bad faith and is part of the reason why the Panel has made the finding of Reverse Domain Name Hijacking…
This case is a prime example of why you should consult an attorney skilled in bringing the type of case you have. On the part of ELK Accesories, any attorney skilled at filing UDRP cases could have apprised it that the case was dead on arrival. As just one example of incompetence, ELK’s counsel mistakenly suggested the current owner registered the domain in 1995. That date, of course, was even more detrimental to the case than the actual registration date. But the fact that the counsel couldn’t accurately determine when the domain was registered by the current user is a sign they didn’t know what they were doing.
Read the full case here (pdf).