Panelist says no reverse domain name hijacking because domain owner didn’t respond to purchase inquiries.
Today’s “WTF, why isn’t this reverse domain name hijacking” case comes courtesy of panelist Alistair Payne and Czech Arbitration Court (CAC).
The case was filed by the proprietor of French trademarks for “ikase” against the domain name iKase.com.
The domain was registered six years before the complainant claimed any rights in the “ikase” mark, so the panel rightfully determined that it was impossible the domain was registered and used in bad faith.
Yet Payne let’s the complainant Yvan Taieb off the hook for RDNH because he didn’t receive any responses to his purchase inquiries for the domain:
The Complainant must have or at the least should have known that the Respondent had registered the Disputed Domain Name approximately six years prior to its trademark registrations. However, the Panel notes that the Complainant tried several times to contact the Respondent in order to purchase the Disputed Domain Name but received no response (the Panel notes that the only evidence to this effect before it is an email dated 28 November 2013 from Mr Taibe’s lawyer to [email protected] and a letter from Mr Taibe’s lawyer dated 16 January 2014 to WHOIS Privacy Services).
In these circumstances there is, in the Panel’s view, nevertheless a reasonable explanation for the Complainant filing its complaint, as it most probably seemed to the Complainant to be the only way that it could contact the Respondent. In these particular circumstances, the Panel is therefore prepared to give the Complainant the benefit of the doubt and considers that, on balance, the Complaint was made in frustration at not having received a response to the Complainant’s attempts to contact the Respondent and therefore the requirements for reverse domain name hijacking have not been made out.
The fact that the complainant tried to buy the domain first and resorted to UDRP later is even more proof that the complainant did not feel the respondent was actually cybersquatting.
Domain owners have no duty to respond to a domain inquiry. And given where the panel says the email and letter was sent, I doubt the domain owner even got it.
The fact that the respondent didn’t respond to the purchase inquiries perhaps emboldened the complainant into believing that they might get a “default” decision in the UDRP, i.e. that the respondent wouldn’t submit any statement to defend themselves. Indeed, the panelist made the ridiculous statement that:
“….a reasonable explanation for the Complainant filing its complaint, as it most probably seemed to the Complainant to be the only way that it could contact the Respondent.”
In other words, if someone doesn’t respond to your communications, it’s OK to initiate a dispute as a means to “contact them.” UDRP is now a legitimate means to compel communications in domain purchase negotiations, apparently — absurd!
The failure by the panelist to render a reverse domain name hijacking decision encourages other complainants to “roll the dice” in the future, with no repercussions.
It almost goes beyond absurd, and fast encroaching bizarre territory.
I think it fits quite well with absurd…
ab•surd: utterly or obviously senseless, illogical, or untrue; contrary to all reason or common sense.
…unless of course the UDRP was delivered personally by a fantastically dressed court jester (circa. 1500) who danced while he whistled on his magic flute en route to the addressee; where he presented the document while singing “The Communications Compeller of Taieb” (a curious song, sung to the tune of “The Pied Piper of Hamelin”).
Now we’d be in bizarre territory…
bi•zarre: odd or unusual, esp in an interesting or amusing way | markedly unusual in appearance, style, or general character; strange; odd.
LOL!!
You never know, these internet judges could be rendering these verdicts in cap’ n ‘bells, pink underwear, and red noses, in front of their Atari computers, while making funny faces at the little guys.
We’ll never know, Confer.
woo hoo… and rdnh means what? oh … that’s right… nothing… i forgot.
Seems perfectly legitimate to me.
My neighbor has a nice car that I’d like to own. Let me get out a $100 bill, and knock softly on his front door (whether he’s at home or not). If he doesn’t open the door in order to discuss the purchase, then I’m entitled to smash the window and drive it away.
That’s not theft. Because the owner didn’t respond to my purchase offer, he relinquished his rights to call me a thief.
Alistair Payne did not respond to an email asking for further explanation of this decision, so I guess we’ll have to just accuse him of being a child molestor in order to get in touch with him.
What bullshit.