This company thinks the eNom backpack girl looks similar to its CEO.
At what point does a cybersquatting complaint filed under UDRP become laugh-out-loud funny?
I think we have now have the answer, although the respondent in this case probably isn’t laughing.
An Australian hair care company called Patricks Universal Export Pty Ltd (Patricks) filed a UDRP against the owner of Patricks.com. The hair care company uses Patricks.com.au and was clearly looking to upgrade.
So it reached out to David Greenblatt, who registered Patricks.com in 1997. The complainant started operating under the name Patricks much later (this decade).
Greenblatt responded with a price that didn’t please Patricks Universal Export Pty, which filed a UDRP as “Plan B” for getting the domain name.
I’m going to copy these allegations directly from the UDRP decision, because they are really, really funny:
“The original registration was in bad faith as the historical captures of the Website shows that the Respondent registered the Domain Name and all the other domain names to sell for commercial use and he now secretly tries to sell them.”
“In March 2016, the Complainant tried to contact the Respondent on the telephone number found on the WhoIs of the Domain Name at least 10 times a day at different times for over a week and no one answered the telephone. This is evidence that the Respondent was hiding some or all of his bad faith acts in this manner.”
“The Complainant managed to track him down to a phone number through public records on the Internet. The Respondent’s response to the Complainant’s request for the Domain Name was that he wanted USD 150,000 and equity in the Complainant for the Domain Name. This was bad faith as the Respondent did not claim any rights or legitimate interests in the Domain Name, the amount claimed was more than one thousand times the costs of the Respondent’s out-of-pocket costs to register and re-register the Domain Name and he was attempting to steal an ownership interest in the Complainant.”
“The Respondent has engaged in a pattern of conduct to register hundreds of domain names for the purpose of preventing the owners of trade marks and trade names from reflecting their trade mark in a corresponding domain name. These trade marks include “9to5”, “agentbooking”, “findcheapair”, “easy123dining”, “mqzm” and “Vqdv”.”
Was the complainant being serious? It’s so sad I might just cry.
But here’s where it gets really funny:
The Respondent’s posting on the Website of a photograph of a smiling girl with blonde shoulder length hair with a side parting fringe (the “Photograph”) between 2012 and 2014 is evidence of bad faith as it bears a striking resemblance to the Complainant’s CEO Aimee Kidd and this was the time when PATRICKS was becoming a global name. The use of the Photograph on the Website which was offering the Domain Name for commercial sale was to draw the Complainant’s attention to the Domain Name for the purpose of extracting lots of money for its sale. Further the use of the Photograph probably infringes a third party’s copyright which also supports a finding of bad faith.
Want to see the image the complainant is talking about?
Yep, backpack girl.
According to Patricks, the owner of the domain deliberately set up a page with an image similar to that of its CEO Aimee Kidd. The goal was ostensibly to attract Patricks’ attention and get it to buy the domain.
To be fair to the complainant, there is some resemblance here 🙂
Unsurprisingly, the three-person World Intellectual Property Organization panel found that Patricks, with the aid of its attorney Jason R. Buratti, engaged in reverse domain name hijacking:
This is one of the few cases in which a finding of abuse of the administrative proceeding is beyond obvious. While such a finding is always a matter of discretion, the Complainant’s empty rhetoric, mudslinging, and unsupported factual allegations require this Panel to impose the only sanction available to it.
John Berryhill represented the domain owner.
Joseph Peterson says
So the owner of Patricks.com has quietly parked his domain for almost 20 years using a default landing page.
Then, all of a sudden, this clown in Australia decides to call him “at least 10 times a day at different times for over a week” – 70+ phone calls, possibly in the middle of the night (due to a time-zone difference).
Since when is that socially acceptable? That’s 10+ phone calls to a stranger every day for more than a week straight!
Of course, I’m assuming that this guy is genuinely obnoxious … not just lying to exaggerate how obnoxious he really is.
Aimee Kidd is no back pack girl.
How embarrassing. And I say that as an Australian!
Interestingly though, this Aussie firm engaged an attorney from the USA. I wonder how much he billed them for this derisory effort?
His LinkedIn descriptor is interesting:
“Revenue-Optimizing & Problem-Solving Business & Intellectual Property Executive, Attorney and Entrepreneur”.
Joseph Peterson says
My country beats your country when it comes to prominently embarrassing citizens. Ha!
Jane Doe says
That’s Australia for you, must be hoping to go into politics.
Thanks for outing this “bad hair day” for the unscrupulous Patricks. No doubt the list of ingredients in its products will be as dubious, or lack integrity to the same degree. Shame on you Patricks!
We tried to replace Backpack Girl in 2009 but no one could do better than her. A strange but true fact.
John Berryhill says
The best part of the Proceeding was omitted by the Panel. The Complainant filed a supplement in which they claimed that Backpack Girl was retired in 2012, based on a joke article at DomainGang:
Honestly, I couldn’t stop laughing for two days.
Andrew Allemann says
John, you’ve got to send us the supplement 🙂
John Berryhill says
The “supplement” is 14 pages long. This is the relevant passage:
The Response includes a three page history of “backpack girl” Hanna Stellar (and a colorful smear campaign). See Response at 1-3 (Section I). Respondent does not, however, deny the evidentiary inferences drawn in the Complaint, not even with an affidavit. Nor does Respondent’s counsel deny those inferences. Remarkably, the Response does not argue – nevermind prove – that the disputed domain was (a) parked at the time Aimee Kidd’s likeness was published there, or (b) that someone other than Respondent serendipitously selected Aimee’s likeness, or that (c) that someone other than Respondent was a registrar licensed to use Ms. Stellar’s image. Each of these things is necessary to rebut the inferences of the Complaint: (1) a licensed registrar (2) selected the image and (3) installed it at (4) the parked domain. Failing not one, but all four, the Response cannot rebut the evidentiary inferences of the Complaint (whether or not counsel finds them surprising after failing even to argue that the Complaint does not make a prima facie showing that the elements of the UDRP are met).
For all its history, the Response failed to inform us that “backpack girl” was decommissioned in 2012, when the “typically Hispanic” look of Jaunita Rodriguez (depicted in the margin) replaced Ms. Stellar. ((reference to DomainGang joke article omitted)). Surely, “backpack girl” Ms. Rodriguez does not look like Aimee; “backpack girl” Ms. Stellar does. See Complaint at 7 (showing Aimee’s 2012 picture). The disputed domain continued to display “backpack girl” Ms. Stellar but not Ms. Rodriguez (see, e.g., Annex 22 from July 5, 2013) – a domain Respondent does not even argue (nevermind prove) was actually parked during this time and did not select this image of Ms. Stellar (though his lawyer argues it is parked today). Once again, only one inference is supported by the facts: Respondent controlled the domain in around and after 2012, published Aimee’s likeness there, and targeted Complainant.
This was only one of the many gems in this thing. So, yeah, after pointing out that Backpack Girl has been a domain industry icon for years “only one inference is supported”.
It was like dealing with people who don’t think we landed on the moon. On the subject of whether “Patricks” is the common possessive or familial form of the name “Patrick”:
First, the Response constantly claims “Patricks” is a name. PATRICKS is not a name. The undersigned has never met anyone named “Patricks.” Patricks is a word. Well, wait, in this proceeding, it undisputed that PATRICKS is both Complainant’s trademark and trade name. It also is undisputed that the disputed domain identical to the PATRICKS trademark and trade name.
Second, we do not dispute the Response argument that “Patrick” is a name. That would be silly. But the name is not so universal as the Response protests. In Ireland, for example, the name is not even Patrick – it is Pádraig; in French, Patrice; in Spanish, Patricio; in Italian: Patrizio. This list goes on. So Patrick is a name in the English language in some, but not all, English speaking countries. English-speaking countries comprise a small fraction of con- tracting parties to the Policy. Even then, the name “Patrick” has become less popular in the last 10 years. ((linked ref omitted)).
Third, we tried to figure out how many people or companies are named Patrick, but we could not. So we are unable to do more than challenge the Response argument there are “le- gions” of people and more “legions” of companies named Patrick (or Patricks). Since Respondent offers no evidence, we disagree on both counts.
Fourth, Respondent’s only potentially-relevant “evidence” is entirely unreliable. Re- spondent offers a Google search that returns a lot of hits. But we ran the same search with “and not st patricks” in the Google search, and it returned only about 10% of the hits.11 Annex 20 is an exported PDF of the May 21, 2016 first page of results for our search. As Annex 20 shows, our search returned just 18M hits instead of the 96M+ of Respondent’s self- serving version. Even with our more reasonable limitation, however, most of the hits still appeared to be regarding Saint Patrick’s Day and not “legions” of people named Patricks. Our point is, the only material evidence offered by Respondent is unreliable.
Yikes! I am embarrassed for both Aimee Kidd and Jason R. Buratti. So unprofessional – such an unfounded sense of entitlement to someone else’s intellectual property that was created 20 years before they even thought of their company and its name. These domain name buyers and their attorneys are so wacko sometimes.
I feel for Mr. Greenblatt who had to spend thousands of dollars unnecessarily to defend his property from bad faith UDRP theft.
Shame shame shame on Aimee Kidd and Jason R. Buratti. In fact, they will likely end of up on http://www.HallOfShame.com, and justly so. I for one would never hire Jason R. Buratti as my attorney — he simply stole money from Ms. Kidd by giving her bad bad advice to proceed with the UDRP process. He totally failed to advise her of her rights to the domain name in this case — she had NONE WHATSOEVER!!!
Congratulations to the three wise professionals on the UDRP panel who did the right thing and unanimously ruled this a Reverse Domain Name Hijacking (RDNH). Spot on.
I’ve always wondered about that photo. Anyone know the story behind it and who the model is?
Andrew Allemann says
This is the story:
I long thought the picture was taken at the University of Texas, and I recall Chris Sheridan and a couple other eNom (at the time) people going to get their photo taken at UT in Austin to mimic it. Alas, it was from a college in Missouri.