Panelists don’t always consider RDNH when asked, and both WIPO and NAF don’t seem to care.
On Friday I wrote about the UDRP decision for AboutDotMed.com et al. This morning I read the decision for J-brand.com.
In both cases the respondents won. In both cases the respondents asked for reverse domain name hijacking. But in neither case did the panelist make a decision (either way) about reverse domain name hijacking.
Yet the World Intellectual Property Organization and National Arbitration Forum allowed the decisions to be published in their incomplete form.
When a respondent asks for reverse domain name hijacking, it is the panelists responsibility to consider it and make a ruling. In fact, a UDRP panelist can make a ruling of RDNH without the respondent even tasking.
If you turn in unfinished work at school, you either get a failing grade or the homework is returned to you to complete. If you turn in an unfinished project at work it will be counted against you. You might even be fired. Yet for some reason, both major UDRP groups let panelists turn in unfinished decisions.
Why are panelists allowed to shirk their duties? Why do the arbitration managers let them turn in unfinished decisions?
Ron says
Just a cash grab, I can be a panelist too, pay me $300k a year, and I will flip a coin all day long.
Graham Schreiber says
Please see the China conversation.
WIPO and the UDRP are a complete waste of time!
I implore aggrieved parties to do some research … yourselves … don’t rely on others to express your position(s) and if you truly, really truly have a case, represent it yourself Pro Se.
When / If, you do actually educate yourself, you’ll see some facts, conveniently well concealed, in the rules & regulations published for domain names, which concede to a higher power.
Cheers, Graham.
Jay says
UDRP has to be changed from its core. Right now it is a junk and mess. Shame!
John UK says
We all know the whole UDRP system is flawed. It should be based strictly on trade mark laws so that there is some more commonsense to the decisions. As regards WIPO and some of the Panelists ,they are blatantly biased towards Big Companies with large pockets of cash and that is who they are seeking to assist. Only way is take the matter to Court before the UDRP is issued preferably.
Graham Schreiber says
Ownership of a “.com” namespace is a “Mark” of a “Registered” nature, as ICANN use matching language of the USPTO, both at the pleasure of the US Commerce Dept.
Owning & being a trading business, with “.com” accommodates … partial … “States Rights” in Virginia, home of the ICANN Registry, which is VeriSign and perhaps 100% “States Rights”.
My position is a ‘.com’ registered in 1998 and my website & emails have been hosted in Virginia, since 2006, gives me 100% “States Rights” which after five years become “Incontestable” Nationally.
I’m not sure where the definitive point is, but will be able to advise, in due course.
If your a business outside the US, like me, and somebody aggravates you, from outside the US, they can be obliged into the Federal Court, Eastern District Virginia.
Keep the internet as an American Institution, revoke the ICANN licence and award it’s care to the USPTO.
Perhaps, that would increase the cost of the “.com” however, it would immediately align ownership with a TM status; and I think the world’s business community agree, that a US Trademark is a well built & very honourable system & designation.
Not just for American’s, but all.
Cheers, Graham.
SF says
These organizations operate under the Guise of fairness and justice.
They really exist for ONE reason:
To make is easy to take domains away from domain investors.
They randomly do what the want to do. There is no consistency in their decisions.
There is no penalty or punishment for reverse domain name hijacking!
There is only one thing that can fix this.
LEGISLATION – anything short of that would not be enforceable and would not work.
John Berryhill says
Andrew, it helps to focus on what the rule says:
“If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.”
First of all, it is not a “counterclaim” to be raised by a Respondent. There have been as you know, RDNH decisions in default cases. It also doesn’t require a panel to expressly decline to find RDNH because a respondent asked for it. What the rule says, in other words, is “If you think it was RDNH, then say so.” It does not say, “If you think it wasn’t RDNH, then explain why not.”
Andrew Allemann says
@ John –
Fair enough. Given that how most cases at least address it with “This case doesn’t warrant RDNH”, I don’t think it’s too much to ask.
adam says
“Keep the internet as an American Institution, revoke the ICANN licence and award it’s care to the USPTO.”
Yes because the USPTO is such a finely tuned system.
Domainer Extraordinaire says
Why do you or anyone else care? RDNH ruling and $5 will buy you a cup of coffee at Starbucks.
Andrew Allemann says
@ Domainer Extraordinaire: although I’d love for there to be a penalty, I’m sure John can explain how bad it looks for the complainant’s lawyer in a RDNH decision.
John Berryhill says
As Andrew points out, having to explain to your client that “the panel decided we were full of crap and scolded us” is not an easy thing for a lawyer who already sold their client on $XXXXX for a “slam dunk”.
This gets into the broader question of “how do stupid cases get filed?” or “whose bright idea was this?”
I’ve had people sometimes approach me wanting to know if I would do X. Now, I don’t expect everyone to be born knowing whether or not X is a dumb idea, but you don’t walk into a doctor’s office and say, “I’d like you to give me an appendectomy”. You might think you have appendicitis, and you might know that is the recommended treatment for it. But before that doctor commences to ripping out your appendix, it’s a pretty sure bet that the doctor is going to make his or her own diagnosis of whether you have appendicitis before reaching for the knife.
You’ll notice that some panelists distinguish between misguided cases filed directly by a complainant, and those filed by counsel. Counsel is supposed to know better, and if counsel does not understand what they are doing, then they are engaging in malpractice.
So put yourself in the client’s shoes in one of these situations. You wanted a domain name, you don’t know the policy or the rules, and your lawyer told you “Well, for $10K (and up) we can file one of these here UDRP complaints”. You sign the check and a few weeks later you get back a decision that says you are a miscreant. What do you think your next conversation with that lawyer is going to be about?
Domainer Extraordinaire says
The losing lawyer will just tell his client it turns out this is kangaroo court and he would be accurate.
John Berryhill says
Possibky, yes. There is no shortage of narciissists, paranoids and assorted sociopaths in the legal profession.
Andrew Allemann says
I wish the UDRP complaint required you to answer the question “did you have rights to the trademark prior to the domain being registered”?
Having to answer the question would get people to stop and think about the requirements to win.
On the flipside, we’ve seen cases where the trademark rights (or first use in commerce) occurred after the domain was registered and the complainant magically wins. I suspect a lot of lawyers tell their clients, “It’s a long shot, but it might just work. Wanna try?”
Lda says
Hi Andrew
The domain previously in dispute is ours.
The decision report contained numerous
aspects and complainant/respondent mixups
etc. that surprised us as well.
Most notable nonsense was the supposed offer
to sell. No such offer was ever made by us.
In fact, prior to receiving the UDRP we had
never heard from the complainant.
I will restrain myself from criticizing the
panelist, but will mention the following.
The UDRP apprently cost the complainant $1300
plus whatever the supplemental submission
cost them (the one day late payment by
credit card).
From $1300, how much does the panelist get ?
As little as a few hundred perhaps ?
An hour or so of fees to a top professional.
Whatever it is, it’s not enough.
No wonder the panelist took only 1-2 days
to churn out the written decision.
The UDRP must cost much more to implement.
At least $5000 or more.
That way the increasing number of wannabe
domain hijackers will think twice moneywise.
Also, and more importantly, the panelist can
be paid a professional fee to take more time
in reaching a fair decision.
What we are interested in now is how long it
will take before the registrar lockdown is
lifted. At this time we don’t have any
control over the domain.
Andrew Allemann says
@ Lda – thanks for commenting.
You’re correct, UDRP panelists are not paid enough to put much thought into decisions. It’s one of the problems with the system.
Some panelists go above and beyond (despite the low pay) out of a sense of duty. But that’s probably a lot to ask.
That’s part of the reason National Arbitration Forum has clerks put together much of the “answer” for panelists. They give them information for both sides of a decision, and the panelist can pick and choose from the supporting material.
John UK says
@Lda I won back a domain via the German Courts after losing it at UDRP. It is now 3 years since that UDRP and still the domain is frozen in some “twilight zone” and not released. Will it ever be ?.
Dave Zan says
@John UK – has the registrar received a copy of that court decision giving you control of that domain name again?
John UK says
@Dave Zan . Yes Dave they have seen a copy (in German which is their language) but have failed to communicate with me at all so far.
Dave Zan says
@John UK – ouch. Alas, you’ll just have to keep at it. Good luck with that.
Nat Cohen says
There are likely many such cases like the ones you highlight where the Respondent makes a strong case for RDNH and asks for a RDNH finding but the panel ignores the request and issues a decision that doesn’t address RDNH.
sk-rt.com is another such case-
http://www.adrforum.com/domains/decisions/1110912.htm