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Fertilizer company tries reverse domain name hijacking

Company intentionally provided incomplete material evidence, panel determines.

Ferm-O-Feed B.V., a fertilizer company based in the Netherlands, has been found to have engaged in reverse domain name hijacking over the domain name Fertiplus.com.

The World Intellectual Property Organization panel determined that Ferm-O-Feed “provided intentionally incomplete material evidence.”

The case follows a familiar pattern found in UDRP filings:

A company first tries to buy a domain name by reaching out to the owner (either via email or an online form). Once it receives a quote for the domain name, it then provides the quote to the panel and suggests that the domain owner reached out to it to try to sell the domain rather than just responding to an inbound request.

This matters because the Complainant is using the communications to suggest that the domain owner targeted its trademark and company with the domain registrations.

The panel provides a whole host of reasons that the domain wasn’t registered and used in bad faith, and found that the fertilizer company filed the case in abuse of the policy by not providing a complete picture of the communication. This, despite a warning by the domain owner’s counsel Zak Muscovitch.

Ferm-O-Feed was represented by Novagraaf Nederland B.V. [Update: a DNW reader pointed out that I’ve written about several RDNH cases in which Novagraaf was involved.]

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  1. Donald Trump says

    Wow! Remind me to never hire Novagraaf Nederland B.V. for my intellectual property legal needs. Horrible!

  2. Al says

    Zak Muscovitch is one hell of a lawyer!
    I am speaking from personal experience.

    We prevailed with RDNH against the company who filed.

    If anyone needs an attorney for domain disputes I highly recommend
    Zak Muscovitch .

    • John says

      I’m sure he is great, but I disagree with his slippery slope belief that a penalty for RDNH would tend to lead to penalties for investors in the other direction. He even wrote a big apparently influential post about that. Even if people don’t agree they are going to keep silent because of “peer pressure” dynamics. Even one of the most famous bloggers made a statement effectively deferring to ZM on this merely because of his perceived standing in the dn community. There is only one part that can abuse the process, however – the predator complainant. Even I like a good slippery slope argument sometimes, but strictly speaking “slippery slope” is a recognized fallacy. When one keeps it in mind that abusing the process is the issue and not merely losing a contention, there is no good or solid reason to assert such a slippery slope on this topic. And saying you defer to his position on this because he’s a good lawyer doesn’t cut it. In fact you might even call that a “reverse ad hominem” fallacy. This appears to me to be one of most egregious cases of RDNH I’ve read about yet and absolutely screams for penalties being implemented – for abusing the UDRP process.

  3. John says

    P.S. And while my first post is awaiting moderation, I’ve said it before and will say it again: our host Andrew here doesn’t like “slippery slope” arguments himself and has said so, so would be nice to see him admit if he agrees with me and doesn’t agree penalty for RDNH would be bad. But I won’t hold my breath. 🙂

  4. Zak Muscovitch says

    Regarding John’s above comments, I think its great that he is engaging on this important issue. A finding that a complainant has engaged in RDNH has not proven to itself, be a sufficient deterrent for those wishing to abuse the UDRP, as witnessed by record breaking numbers of RDNH cases over the past few years.

    I do however want to point that John may be referring to a blog post that I published over 4 years ago on my personal blog (See https://dnattorney.com/for-those-that-believe-that-a-loser-udrp-complainant-should-pay/), and which actually did not take an express position for or against penalties for RDNH. Rather it pointed out the issues that could arise from advocating for and/or implementing a ‘loser pays model for UDRP’s’.

    As far as I am concerned, it is an open question and the Internet Commerce Association (which I recently became General Counsel of), continues to examine this issue and welcomes input and feedback from the community on it.

    As a practical matter, reaching consensus on financial penalties within the ICANN community would generally require consensus support from trademark interests, domain name interests, and non-commercial users. The ICA is therefore open to constructive suggestions for how to appropriately structure a financial penalty for RDNH that could achieve such consensus support.

    Avoidance of RDNH however, remains a priority. Through greater guidance provided to the trademark bar and vigilance by UDRP panels, many RDNH cases could possibly be avoided before they are filed. The ICA continues to work on this important task.

    • John says

      Sounds good to me Zak, thanks for commenting and I’ll point people here next time someone points others to your old blog post.

      Okay, so therein appears to lie the problem: “loser pays model for UDRP’s.” If that’s how some are framing the issue, that I would strongly suggest is both unnecessary and a mistake. As I’ve been saying for a while now, it is not and should not be about that at all. RDNH is about abuse of the process itself in my humble assessment, not about who wins or loses a dispute. It amounts to and in some cases doesn’t get any more explicitly a case of defrauding the UDRP establishment and proceeding itself. It happens that only one side in a dispute can abuse this particular process, though perhaps one may wish to argue that a respondent might occasionally engage in similar chicanery that falls apart upon examination and which amounts to abuse, which seems a bit far fetched to me and clearly is not a problem like RDNH. Personally I’m not even aware of a case where respondents were so wayward, but that’s just me. But the reality of RDNH looms large and rampant like the all caps that comprise the acronym.

      • H says

        Obviously there is a difference between just being a losing side in a civilized UDRP case and RDNH.

        Does any place collect stats about RDNH-victim names further destiny? I might be wrong, but according to my observations, any URDP case leaves a stain on the name and has rather negative (especially that RDNH-ed names are usually the expensive ones) effect on its chance of being sold successfully.

      • D says

        With a savvy crowd like this, a respect Hello and Thanks in advance is vastly warranted.
        Let’s see if I get the gist of this.
        It’s legal to own domain “djdienfj.com” and I can do with it as I see fit . But the moment I or a broker take a proactive approach and reach out to a prospective customer, it becomes a “Fuzzy legality” of cybersquatting aka Domainer; and this could potentially open me/my client to legalities.
        But if a company proactively reaches out to me, with the intent of purchasing my domain. And if it from the Netherlands, with lawyer Xxxxxxx; they may/WILL take a un-reactive stance of attempting to file a lawsuit against me to take my domain illegally, but with quivering legally standing. It’s almost as if the laws are written to be twisted and contorted at the whim of the largest war-chest to be used or against the prospective domainer’s lawsuit.
        With all that being said,
        What are the personal stances on political tempered domains names?
        What is your prospective legal stance on redirecting owned political/ politician’s domains to their opponent’s?
        Whom are the top DN/DIP attorneys to refer too or use for a domainer to proactively CYA, and still turn a profit domaining?

  5. D says

    With a savvy crowd like this, a respect Hello and Thanks in advance is vastly warranted.
    Let’s see if I get the gist of this.
    It’s legal to own domain “djdienfj.com” and I can do with it as I see fit . But the moment I or a broker take a proactive approach and reach out to a prospective customer, it becomes a “Fuzzy legality” of cybersquatting aka Domainer; and this could potentially open me/my client to legalities.
    But if a company proactively reaches out to me, with the intent of purchasing my domain. And if it from the Netherlands, with lawyer Xxxxxxx; they may/WILL take a un-reactive stance of attempting to file a lawsuit against me to take my domain illegally, but with quivering legally standing. It’s almost as if the laws are written to be twisted and contorted at the whim of the largest war-chest to be used or against the prospective domainer’s lawsuit.
    With all that being said,
    What are the personal stances on political tempered domains names?
    What is your prospective legal stance on redirecting owned political/ politician’s domains to their opponent’s?
    Whom are the top DN/DIP attorneys to refer too or use for a domainer to proactively CYA, and still turn a profit domaining?

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