Panelists should find RDNH even when a complainant is just very misguided.
A World Intellectual Property Organization panelist has given a free pass to a Complainant who seemed to not understand the requirements of the Uniform Domain Name Dispute Resolution Policy (UDRP).
Sébastien Paches filed a UDRP to get the domain name Paches.com for a business he is launching. A domain investor registered the domain before he had his business idea.
Paches tried to buy the domain but didn’t like the owner’s price, so he filed a UDRP.
This is a classic case of reverse domain name hijacking. But panelist Nick Gardner let him off the hook.
Paches was represented by counsel. His case was so dead-on-arrival that Gardner gave him a pass:
On balance the Panel does not consider the Complainant’s conduct warrants a finding of RDNH. It considers this is a case which should never have been brought and where the Complainant had no prospects whatsoever of succeeding. As such it is potentially within (i) above. There is also some evidence suggesting this is a situation whereby the Complainant has failed to buy the Disputed Domain Name at a price he was prepared to pay, and then adopted an alternative strategy of an unmeritorious Complaint. It is also the case (as the Respondent points out) that the Complainant was less than frank when seeking to buy the Disputed Domain Name claiming he wanted it for personal use as it corresponded to his family name and not mentioning his proposed business or asserting any legal claim. However the Complainant is not represented and it seems to the Panel that on balance he has simply failed to properly understand the Policy rather than acted deliberately in bad faith. Accordingly the Panel has concluded the Complainant’s conduct does not fall within the above guidelines and does not deserve the censure of a finding of RDNH.
While panelists sometimes go easy on Complainants who aren’t represented by counsel, it’s worth pointing out that the domain owner was represented by counsel. He likely paid several thousand dollars to defend the domain name. And while a finding of RDNH in a UDRP doesn’t come with a financial penalty, the domain owner is owed this respect.
Rick Schwartz says
I don’t think the domain owner is owed anything.
If the domainer owner is too cheap to get a PROPER 3-personal panel and the attorney does not insist on that, then they get what they get. They are lucky to keep the domain with a one person panel. Sorry, no sympathy from me.
Dumitru Brinzan says
Sounds a bit harsh to me.
Not every domain is owned by a professional domainer with a huge portfolio and dozens of years of experience.
And this doesn’t sound like a case with a $xxx,xxx domain name, where a thousand here or there doesn’t make much of a difference to the owner.
Rick Schwartz says
It may be harsh but if the domain is worth defending, it’s worth defending the right way.
I don’t like to see anyone lose a rightfully owned domain.
The big expense it the attorney not the 3 member panel.
1 member panels are the kiss of death. Flip of the coin no matter how strong the case.
I have written about this for many many years. And again, if not the domain owner, then the attorney should have insisted for his own repuation’s sake!
I’ll be honest with you – I don’t see how anyone with even a little bit of brains needs an attorney for this.
Yes it may often be worth it to pay for a three member panel if you can afford it, however.
This will be an example where I occasionally do not like or approve of some of Rick’s personal attitudes even though I usually agree with him about domain related matters. Rick has lost perspective because he is rich and has been rich for a long time. Not everyone, even those who may have a few great domains, are necessarily rich and for whom blowing a few grand or more to defend against a bad claim is not an unpleasant matter.
There should be penalty for RDH, as abuse and defrauding of process, not as “loser pays.” This penalty should cover the cost of defending a domain and a three member panel, at least.
I suspect that if guys like Zak Muscovitch and whoever want to persist in framing the issues as “loser pays” or a slippery sloping leading to what has been argued about “loser pays,” they are the ones who are thinking about money. Penalty for “abuse of process” (and not “loser pays”) means there would likely be far less UDRP’s filed. And that means far less hiring of DN attorney’s to defend them. Which of course means such attorney’s making far less money for that.
And people thinking what I first said above and acting upon it means the same things about far less hiring as well.
But honestly, you don’t even have to be that smart or talented to reply with a strong argument refuting a bad claim. And if God has made you pretty smart you can even respond with a truly devastating argument. Not to brag, but personally I eat lawyers for lunch though I’m not a lawyer, and the last time I did a big 3 or 4 hundred pound judge came up off the bench to walk all the way across the courtroom to shake my hand. I never studied science, but the last time I went to my doctor’s office with my own proposed “diagnosis” about a condition I was experiencing the Physician Assistant raved on and on calling me a “great diagnostician” and “best patient” and so forth. (And I did turn out to be right, though a great and mighty Ivy League ER doctor was wrong.) So much so that she actually had to stop and take a breath in order to continue with a second round of raving. So a lot of this is two things: attitude (as in, yes you can know and understand and do a few things if God has enabled you to do that), and honesty, as in having and approaching a matter with an honest mind. It also helps to be able to think critically of course along with that honesty of mind. But matters such as these are like some other things we have seen in life – people no matter how smart they are – and many of them are brilliant – are kind of brainwashed into thinking they can’t do it themselves and have to have a hired expert for this or that all the time.
Bradley Arthur says
It seems to me that if the complaint was filed in bad faith, with a pipe dream of hope that they could get away with inappropriately taking a domain from it’s rightful owner, the party pays panel and attorney’s fee.
Did you read my comment. It’s been discussed before, but there apparently is resistance among some in the industry against pursuing penalty for RDNH. And in my comment you will see a suggested possibility regarding why there is this resistance.