The Complainant appears to have provided the wrong acquisition date, but the Respondent’s dates don’t add up, either.
Regal Games, LLC was found to have attempted reverse domain name hijacking in a recent cybersquatting decision at National Arbitration Forum. Two things make this case interesting beyond the reverse domain name hijacking (RDNH) finding. The dates on both sides don’t add up.
First, the Complainant argued that the Respondent, Wolfgang Sauer, acquired the domain on May 20, 2021, but didn’t provide any evidence to back this up. This date is the “Updated Date” in Whois, and update dates can be for any change to a Whois record, such as a nameserver change.
I’m shocked that a Complainant would not understand this, especially when represented by counsel specializing in Intellectual Property. Incubate IP represented Regal Games.
An Updated Date can coincide with an ownership transfer, but panelist Luca Barbero noted that Regal Games didn’t provide any proof of an ownership transfer. Barbero cited the Complainant’s incorrect date as part of his rationale for finding RDNH.
But there’s something else funny about the case, this one on the Respondent’s side. Barbero’s write-up states:
Respondent further submits that the disputed domain name has been used for its own business [emphasis added] in the sale of game consoles since September 2002 (as shown by an historical screenshot taken from the Internet Archive “www.archive.org” in Annex 2 to the Response).
Here’s the thing. When I looked at historical Whois records, it appears that a previous owner used the domain back then. Until mid-2014, a Florida company called Eagle Entertainment (and then Regal Games) owned the domain. DomainTools records show that the domain went into Pending Renewal or Deletion at Network Solutions in August 2014, with Sauer becoming the registrant on August 20, 2014. The domain has been parked since then.
I reached out to Sauer via email last Friday to ask for clarification but have not heard back. It’s possible that he stated the domain was used for gaming purposes back then, not that he used it for his own business. But that’s not what Barbero’s decision states. There could also be a connection between the companies, although they are located in different geographic locations, and the domain went through NameJet’s expiration cycle.
This might not have changed the outcome of the case. Regal Games did not provide solid evidence of common law rights pre-dating its 2019 trademark application.
Still, it’s a big open question. And it’s strange that Regal Games didn’t make a supplemental filing a) explaining its misunderstanding of the acquisition date b) challenging the acquisition date by the Respondent. Of course, if you don’t understand that the Updated Date is not the acquisition date, then you probably don’t understand how to use historical Whois services.