Complaint was dead-on-arrival because domain was registered before business started.
Domain name attorney John Berryhill has successfully defended the domain name QWIC.com in a UDRP brought by an electronic bike maker.
The case was filed by the maker of Qwic bikes in the Netherlands. It uses the domain name QWIC.nl.
The complaint was dead on arrival as it seems that the domain registrant registered the domain name before the bike maker started its business.
Panelist Alistair Payne addressed this issue, writing:
The basic premise underlying the Policy, subject to a showing of bona fide pre-existing trade mark rights, is “first come-first served”. In this case and based on evidence on the record, the Respondent was clearly first in time. The Panel notes that the Complainant subsequently had its agents make an international trade mark application based on the Benelux application and also obtained the domain names qwic.nl and qwicgb.com. The Panel finds it difficult to believe that the Complainant was not made aware by its trade mark agents in 2006 or 2007 of the Respondent’s ownership for the disputed domain name.
However, Payne did not find the complaint to have been filed in abuse of the policy:
This therefore appears to be a case in which the Complainant has sought to launch a rearguard action to obtain a domain name which it most likely knew from the outset was not available. However in circumstances that the Respondent had never made an actual use of the disputed domain name and that the Complainant could not have been aware of the circumstances surrounding non-use as subsequently described by the Respondent, then a UDRP panel following the Octogen line of reasoning might in other circumstances have come to a different view. In this light it cannot be said that the Complainant had no hope at all of succeeding on its Complaint and as a result, although this is a borderline case, on balance, the Panel has decided not make a finding of reverse domain name hijacking on this occasion.