Arbitrator decides that the case was so weak that the complainant just didn’t know any better.
In March I wrote about how Life is Now, Inc., which promotes business coach David Neagle, had filed a UDRP against JustBelieve.com.
Domain owner Greg Ricks has successfully defended the ridiculous UDRP.
The primary determining factor was that Ricks owned the domain name before the complainant started using the term “Just Believe”. That makes it impossible to prove that the domain name was registered and used in bad faith.
Despite finding in Ricks’ favor, Arbitrator Mark McCormick failed to find Life is Now guilty of reverse domain name hijacking. He used what I call the “idiot defense” to let the complainant off the hook: the complainant just didn’t understand the policy, so it’s not their fault:
Because Complainant’s own evidence contains evidence of Respondent’s prior right in the JUST BELIEVE mark, Complainant may simply have been unaware of the significance of that circumstance. Complainant made no effort to conceal it, and the record contains no evidence of harassment or similar conduct by Complainant.
I wouldn’t have let them off the hook so easily. After all, the complainant was represented by counsel (Stephen J. Thomas of Thomas Business Law Group, P.C.). Despite this, the case was basically phoned in. According to the arbitrator himself, the complaint didn’t even make a case that the domain owner lacked rights or legitimate interests in the domain.
Yet Ricks had to take the time to defend himself.
Nat Cohen says
Andrew,
Your points are right on. If you publicly accuse someone of bad faith behavior without evidence, and force them to spend and time and money defending a baseless complaint, then even if you are an idiot you should be found guilty of RDNH.
It’s another example of the double standard in the UDRP. When have Panelists excused a domain owner’s bad faith behavior on the grounds that the domain registrant didn’t know better?
Nat Cohen
John Berryhill says
“He used what I call the ‘idiot defense'”
Ahem… page 6:
http://www.wipo.int/export/sites/www/amc/en/docs/berryhill14.pdf
Andrew Allemann says
Ah, crap. I need to send a royalty check.
🙂
Domenclature.com says
“Ignorantia juris non excusat”
The panelist is basically opening up a huge Pandora’s box; even someone with a substantial legal training cannot be aware of all aspects of law governing DNS activities. That is why the law imputes knowledge of all laws to all persons within the jurisdiction no matter how transiently
John Berryhill says
Oh, they understand that… which is why you’ll never see an ignorance defence applied to a respondent. What’s interesting is that since the complainant is usually represented by counsel, they are the ones whose job it is to know better.
Domenclature.com says
You’re of course one of the few with substantial legal training, who probably knows’em all, And come very recommended to anyone with RDNH problems.