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.

WIPO doesn’t admire dentist’s creative arguments.

A Missouri dental practice run by dentist Brian Henningsen has been found to have engaged in reverse domain name hijacking over the domain name AdmireYourSmile.com.

Admire Your Smile, P.C. started using the “Admire Your Smile” mark after a dentist in New Jersey registered the domain name. The Missouri dentist later tried to buy the domain name but didn’t get a response. He then threated to take legal action if he didn’t receive a response. He followed up by filing a UDRP cybersquatting complaint with World Intellectual Property Organization.

Of course, that complaint fell flat on its face. Admire Your Smile, represented by Dunlap, Bennett & Ludwig P.L.L.C., tried to come up with creative arguments why the panel should make exceptions to the language of UDRP that requires a domain name be registered in bad faith, not merely used in bad faith. It even argued that the domain was renewed in bad faith.

Panelist W. Scott Blackmer wasn’t having any of it. In finding that the case was filed in bad faith, he wrote:

The Complaint argued disingenuously that the Respondent (a dentist in a distant state) was a “competitor” who registered the Domain Name “less than two years” before the Complainant began using its mark in commerce and then renewed the registration in 2017 to “disrupt” the Complainant’s business. There is no plausible evidence that the parties actually compete, and the Complainant provided no historical evidence of use of its mark beyond the unexamined claim of “first use in commerce” in its much later trademark application. The Panel found that the Complainant did not, for example, place the mark on its website until the end of 2014, seven years after the Respondent registered the Domain Name, and the Complainant did not possess a registered mark even at the time of the Respondent’s renewal of the Domain Name registration in December 2017…

…This case does seem to reflect an illegitimate domain name acquisition strategy. The Complainant adopted a business name without ascertaining that the corresponding “.com” domain name was already taken. Years later, the Complainant tried to purchase the Domain Name. Years after that, the Complainant obtained a trademark registration and threatened the Respondent. It may be telling that the Complainant did not act on that threat for more than a year. There are obvious gaps in the evidence and argumentation presented in the Complaint, as discussed above, despite signs that the Complainant’s counsel was aware that the third element, bad faith, would appear on its face to be impossible to establish.