Yu have one interesting UDRP…

The case for Yu.com was much more complicated than it should have been.

All the facts of the UDRP for Yu.com point to an slam dunk, open-and-shut victory for the respondent.

Yet getting to that determination – a win for the respondent – was apparently anything but simple.

Michael has opined a bit on the case, and I’m going to share my analysis.

First, let’s discuss how this was a dead-on-arrival case.

The complainant, Two Way NV/SA, stated that it had plans to bring to market an app with the name YU, but had not yet launched it or commenced commercialization.

Two Way had managed to get a trademark for its non-existent app, but even that was filed for and granted after the owner of Yu.com acquired the domain in 2006.

So the case was pretty simple in favor of the respondent.

But what happened after the case was filed is quiet interesting.

Two Way wanted to disqualify two of the respondent’s suggested panelists on the three person panel.

First, it wanted to disqualify The Hon Neil Anthony Brown Q.C. on the grounds that he is requested by the defendant’s attorney, Ari Goldberger, in a number of cases. Two Way argued that Brown thus had an economic incentive to find in Goldberger’s favor.

It’s true that Brown hears a lot of Goldberger’s cases. It’s also true that Brown takes a reading of the UDRP that, on balance, leans more toward respondents than many other panelists.

While I think Two Way’s request was uncalled for and should have been dismissed, that’s when things get zany: Two Way also asked to have another of the respondent’s nominees (who is unnamed) dismissed because he or she was of the same nationality as Goldberger and was an American citizen, whereas Goldberger’s law firm is in America.

If complainants could strike a panelist because they’re based in the U.S., that would certainly turn UDRP on its head!

The case continued with panelists Mark Ming-Jen Yang and Andrew F. Christie joining Brown…at least for a while.

Now, if you consider that Brown’s interpretation of UDRP leans a bit to respondents, then Christie’s leans quite a bit to complainants. Christie is the one who has tried to twist the language of the third prong of UDRP – registered AND used in bad faith – to be registered OR used in bad faith.

Panelist Yang is a bit of an unknown. He has heard about 40 cases dating back to 2003. He has found in favor of the complainant in all cases except one. The one case in favor of the respondent was a three person panel.

What happened between the three panelists over the six months the case was decided is not exactly known.

But Yang definitely wasn’t on board with the other two.

In the closing days of the Panel’s deliberations, Presiding Panelist Yang indicated that he did not wish to be associated with membership of this Panel which is issuing a majority decision, and that he had nothing more to say.

I believe this is unprecedented.

A member of a three person panel can disagree with the other two panelists. All he or she has to do is file a dissenting opinion.

But Yang literally walked away.

Further compounding the mystery is that Christie and Brown, while coming to the same ultimate decision in the case, disagreed on how to get there. Both panelists submitted their own opinions for each of the second and third prongs of the case. Thus, it would have been perfectly acceptable for Yang to submit his own detailed opinion on the case.

What should have been a simple case turned into a six month ordeal and a blemish on World Intellectual Property Organization.