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JetGo guilty of RDNH after filing “seriously misleading” case against Frank Schilling

Australian charter jet company didn’t give the full story to WIPO panel.

Frank Schilling’s Name Administration has successfully defended another UDRP filed against one of its domain names. The three person UDRP panel also found the complainant guilty of reverse domain name hijacking.

JetGo Australia, an airplane charter company, filed the complaint over the domain name JetGo.com.

This is a classic case of a company adopting a company name in which the .com was already registered, but then claiming it was registered in bad faith. The panel determined that it was impossible the domain was registered in bad faith to target JetGo, which at the time had yet to select “JetGo” as its brand.

The reverse domain name hijacking charge came about because JetGo tried to mislead the panel with evidence showing that Name Administration offered to sell the domain name. JetGo omitted the full communication between the parties, which showed that it was JetGo that wanted to buy the domain name and Name Administration was merely responding to its offer:

The Panel considers that the Complaint filed in this case was brought in bad faith, and constitutes an abuse of the administrative proceeding, on the basis that it is seriously misleading. In particular, the Complaint fails to set out fully facts that were fundamental to the Complainant’s case and of which the Complainant had knowledge – namely, the Complainant’s unsolicited initiation and renewal of communications with the Respondent regarding possible purchase of the disputed domain name. By failing to state these facts, the Complaint makes an implied assertion that is false – namely, that the Respondent’s offer to sell the disputed domain name to the Complainant for a substantial sum was unsolicited by the Complainant. This false assertion might have misled the Panel had not the Respondent provided the evidence, readily available to the Complainant, that refuted this implied assertion. To knowingly make a false implied assertion on a material issue is evidence that the Complaint was brought in bad faith. Furthermore, it is simply not fair to require the Respondent to provide evidence establishing that the Complainant’s case on a material issue is without basis when the Complainant must have known this fact.

JetGo was represented by Sparke Helmore Lawyers. Name Administration was represented by John Berryhill.

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  1. John Berryhill says

    For those who like to keep track of unattributed copy-and-paste UDRP decisions, this was the finding in the digilove.com dispute a few months ago:

    http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2013-0583

    The Complaint fails to set out facts that are fundamental to the Complainant’s case and of which the Complainant must have had knowledge, such as the […] By failing to state these facts, the Complaint makes express and implied assertions that are false. These false assertions might have misled the Panel had not the Respondent provided the evidence, readily available to the Complainant, that refutes these assertions. Furthermore, it is simply not fair to require the Respondent to provide evidence establishing that the Complainant’s case is without basis when the Complainant must have, or at least should have, known this fact.

  2. Robbie says

    So what Frank has to pay his legal fees, and gets squat in return in regards to financial compensation for bully tactic waste of this time.

    What a great world we live in.

  3. Nat Cohen says

    A key factor in most RDNH decisions is that the domain name was registered before the Complainant had any trademark rights to the related term. This was also the situation in the JetGo.com case, as Name Administration acquired the domain before JetGo Australia began operations.

    I find it interesting that Presiding Panelist Andrew Christie didn’t mention that the domain was registered first as a reason for finding RDNH. He based his RDNH finding on misleading behavior by the Complainant.

    Christie, as you’ve written about many times, is notorious for trying to interpret away the UDRP requirement that a transfer can only be ordered if a domain is found to have been Registered in bad faith. This requirement in the UDR policy should make it impossible to win a UDRP on a domain that was registered by the Respondent before the Complainant had any related tm rights. Nevertheless Christie thinks that he can disregard that requirement.

    So it is not surprising – but still disappointing – that he did not find bad faith behavior in the Complainant’s trying to reverse hijack a domain that was registered before the Complainant had any rights in the mark.

  4. Paul Bredereck says

    One needs to go back further than Jetgo Australia Holdings.

    The owners of Jetgo have been using their name through a series of companies since 1989. Jetgo is not a common name that can be found in a dictionary but a unique business name used by Mr Ryder in a series of companies over many years.

    Mr Ryder attempted to purchase the name first but the owners / brokers were totally unrealistic in their price expectations. Mr Ryder may have been naïve in continuing to negotiate with the domain name broker, because as it turns out his communication was used to bring his complaint undone.

    So who is the real owner here? Someone who registers someone else’s name, coincidentally or not.

    • Paul Bredereck says

      @John. Maybe not from what I have seen. Jetgo’s lawyers failed to establish the link back as far as 1989.

      I also noted that somewhere you had asserted that your client had been using the term “jetgo” for jet travel prior to any claim of trade or service mark rights by Jetgo Australia… I think this is stretching the facts a bit and you know it.

      Nevertheless I will agree that Jetgo was given very poor legal advice, and had they been better appraised would probably not taken the WIPO path. Mind you your correspondence on the 2nd August did nothing to help… hindsight is a wonderful thing… happy to discuss privately if you wish.

      • John Berryhill says

        There is a huge difference between “poor legal advice” and engaging in abuse of process, which is what the panel found here. You clearly did not read or understand section II. of the supplemental reply nor the last paragraph of section IV. of the supplemental reply. There was no claim to rights owned by Jetgo Australia prior to the domain name. None. That is not “stretching the facts”. Whether Mr. Ryder was involved in companies that (a) did things other than jet charters, and (b) were sold to other parties, does not establish a trade or service mark right owned by the complainant in this proceeding. The only thing it demonstrates is that if one buys a business from Mr. Ryder, then one can’t trust that he won’t use the same name again for some other venture entirely.

        As to the August 2nd letter doing “nothing to help”, that’s comedy gold. The UDRP had already been filed at that point, and that letter provided (a) a completely accurate statement of the outcome of the proceeding, (b) an observation that the complaint evinced sheer incompetence, and (c) instructions on how to avoid reliance on “hindsight” to learn both (a) and (b). Remarkably, you agree with the principal assertions of that letter. There was very good advice in that letter. Your friend is immune to good advice.

        • Paul Bredereck says

          I would suggest John your August 2 advice would probably have been taken by Mr Ryder had you not exaggerated…. anyway time to move on! Cheers

          • John Berryhill says

            Exaggerated? The only thing I failed to predict with 100% accuracy is that the panel would find that the complainant had engaged in abuse of process.

        • Paul Bredereck says

          You asserted your client is in the “jet travel business”?… you are full of it!
          Time to move on!

          • John Berryhill says

            That’s ridiculous, Paul. It’s quite clear that the domain name has been used for advertising relating to the jet travel business. It is no secret that Name Administration is in the advertising business. The advertising has been for jet travel. Every member of that UDRP panel had been on at least one prior Name Administration case, and knows exactly what business they are in. Are you going to claim the panel was biased, even though the respondent moved to have your first choice panelist seated as presiding panelist?

            And while you are busy scrubbing Wikipedia, you still keep “founded 2011” at the top of the page. Nothing about 1989 there.

            On the subject of truthfulness, shall we discuss the email from “Ms. Gass”?

    • Paul Bredereck says

      Despite the founders of Jetgo legitimately using the name a long time prior to the registrations by what are effectively cyber-squatters of ,com and .com.au … its time to move on!

  5. Mans says

    Another example of Frank hording domain names under contentious circumstances and using his bulldog representative firm’s expert knowledge of DRP to navigate around the policy. We all know that if he ever loses a case, he’ll just hold it up in the Cayman courts for years, and make the winning party negotiate anyway. He has made this system his own, and WIPO are too scared to challenge him. Shame for IP owners.

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