This panelist used domain owners’ fair asking prices as strikes against them.
UDRP panelists know a thing or two about cybersquatting, but few are qualified to judge the value of domain names.
I was reminded about this in two recent cases, both involving panelist Warwick Rothnie. I wrote another post about two cases involving Rothnie’s cases that I’ll publish shortly. I’m not trying to pick on him, but I flagged these cases and was surprised to see that he decided all three.
The first case is MAGT Holding B.V. vs. “Translation failed”. (The Chinese domain registrant apparently used non-Roman scripts for his name, and the registrar could not translate these.)
The Complainant went after the domain dwrs.com because it sells a line of shoes under this name. Its use dates to about 2015. It’s unclear when the Respondent acquired the domain, but as a Chinse domain investor who put a sales contact address @xz.com, you can bet this person bought the domain because it’s a four letter domain with inherent value. I doubt they were trying to target the shoe company in the Netherlands. When I search DWRS on Google in the United States, the first page doesn’t mention the Complainant.
The domain owner didn’t respond, though.
I’m not judging Rothnie’s entire decision. My concern is that Rothnie took the domain owner’s $40,000 asking price in response to the Complainant’s inquiry as an indicator that the domain investor was targeting the Complainant:
In the present case, the Complainant plausibly argues that the Respondent became the registrant of the disputed domain name after the Complainant’s trademark had become well known. The Respondent has not denied this. Nor has the Respondent denied knowledge of the Complainant and its trademarks. On the contrary, through the GoDaddy broker, it offered to transfer the disputed domain name for the sum of USD 40,000. There is no evidence before the Panel which would suggest this amount reflects the intrinsic value of a domain name comprised of a four letter acronym rather than the Respondent’s assessment of the value of the disputed domain name to the Complainant. On the contrary, the GoDaddy broker’s recommendation that the Complainant’s representative make an offer of USD 2,500 – 5,000, and subsequently USD 10,000, tends to suggest that USD 40,000 does not reflect the intrinsic value of the disputed domain name apart from its association with the Complainant’s trademarks.
There are a couple of things to note here. First, GoDaddy is working on behalf of the domain buyer, not the seller. So sure, they’re going to try starting low. Second, four letter domains do sell for under $10,000 all the time. They also sell for more than $10,000 all the time. That the domain owner asked for a relatively modest sum for the domain in response to the Complainant’s inquiry shouldn’t be an indicator that it targeted the Complainant when it acquired the domain.
In fact, you could look at this the other way around: the domain owner tried to buy the domain and then filed a UDRP when it wasn’t happy with the price. That’s indicative of Plan B reverse domain name hijacking.
This leads to the other case. In Miroshnichenko Nikolay Viktorovich v. Abid Ali, Rothnie found on behalf of the Respondent of nickol.com but declined to find reverse domain name hijacking. Here’s his rationale for not finding RDNH:
Bearing in mind that the Complainant does have registered trademarks based on “Nickol” and the offering of the disputed domain name for sale on the “www.dan.com” website for an asking price of USD 25,000, however, the Panel considers this is not an appropriate case for a finding of reverse domain name hijacking. The Respondent has succeeded on the basis of his own personal knowledge and information about the Complainant. In particular, the Respondent’s lack of knowledge or otherwise of the Complainant and his trademark was not objectively apparent from the price which the Respondent advertised the disputed domain name for sale.
It seems that Rothnie is discounting the Respondent’s case based on how much he was asking for the domain.
I suppose there are extreme pricing examples that a panelist could point to as a factor in bad faith. If there’s really only one plausible buyer, and it’s a huge corporation, for example. But in both instances, we’re talking about relatively fair prices for these domains. It’s not a panelist’s position to think they know a domain’s market value and infer anything from the domain owner’s pricing.