Panel determines the case was “dead on arrival”.

Mountain Top ApS, which manufactures covers for pick up truck beds, has been found to have engaged in reverse domain name hijacking over the domain name Mountaintop.com. The company uses the domain Mountaintop.dk for its website.

The owner of the domain registered in 1995. The Complainant argued that there was a transfer in ownership in 2012-2013 and that this should count as the registration date. But the transfer was merely a change of registrant name involving the same owner. Even if it was a transfer, the new owner used Mountaintop in its brand, showing rights or legitimate interests in the domain. (Mountain Top claims common law trademark rights dating to 2002, hence its desire to show a transfer date after it claims rights).

The domain owner has used the domain for a personal blog and email.

While the Complainant could not find the owner’s full details in Whois at the time it filed its case, it was made aware of them during the verification phase and did not withdraw the case. A bit of additional research before filing the case would have shown the domain’s use over the years, too.

A three-person World Intellectual Property Organization panel ruled that this was a case of reverse domain name hijacking even though the domain owner didn’t ask for it.

…This Complaint was dead on arrival and likely would have been denied had there been no Response. The Complainant’s entire case on bad faith is that the Respondents registered the Disputed Domain Name intending to sell it to the Complainant. Not only is this allegation supported by no evidence at all, the charge is grounded on a theory of constructive notice that has long been held to be inadequate for Policy purposes (see WIPO Overview 3.0, section 3.2.2) and the obviously spurious statement that “mountaintop” is not a common term. The Complainant, which bears the burden of proof on each Policy element, did at best minimal due diligence once it learned the identity of the Respondents – enough to find that the Respondent Business used the term in its business name, something that normally constitutes bona fide use. “Ordinarily if the face of the complaint itself demonstrates a settled reason why the complaint must be denied, a panel may make a finding of RDNH.” Tarheel Take-Out, LLC v. Versimedia, Inc., WIPO Case No. D2012-1668, quoting from Liquid Nutrition Inc. v. liquidnutrition.com/Vertical Axis Inc., WIPO Case No. D2007-1598.

The Complainant’s allegation that the Respondents acquired the Disputed Domain Name to sell it to the Complainant has no evidentiary support. It is wholly inconsistent with the fact, documented in the Response, that the Respondents have never offered or invited offers to sell the Disputed Domain Name and did not respond to the Complainant’s offer to purchase the Disputed Domain Name for that reason.

The Complainant also failed to demonstrate that it had been targeted by the Respondents or provide any evidence to support a conclusion that an individual or organization in the United States was likely to be aware of the use of the Trade Mark (a common English word mark) by a Danish automotive parts supplier.

The Panel considers the Complainant likely launched the proceeding either in anticipation of a default or, more likely, to encourage the Respondents to engage in negotiations with the Complainant to sell the Disputed Domain Name. Either such motive belies the Complainant’s undertaking, required by paragraph 3(b)(xiii) of the Rules, “that this Complaint is not being presented for any improper purpose”…

It appears that Mountain Top’s interest in the domain might be because it’s opening a production plant in the U.S. it announced the plant yesterday.

Elmann IPR Law Firm represented the Complainant. John Berryhill represented the Respondent. The panelists were John Swinson, Andrew Lothian, and Richard Lyon.