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Recent Case Notes & Commentary

Can the UDRP Deal with Daddy Issues?

Big Brands, LLC v. Zach Mosesian

Claim Number: FA1909001863623

8 November, 2019

While the UDRP maintains its role as an effective remedy against cybersquatting and abusive domain name registrations, it can sometimes flat out refuse to hear cases which are outside of its scope. The UDRP is an Alternative Dispute Resolution service, not a court, and while it can enable parties to quickly and definitively resolve disputes without litigation, the trade-off is that it lacks the rigour and comprehensiveness of the courts, and is consequently much more limited in its scope.

A recent case, in which a father-son Complainant and Respondent battled it out over several domain name registrations related to their business, was dismissed, as the Panel found that the claim fell outside the scope of the UDRP. Rather than involving cybersquatting of any kind, it instead centred on a business dispute between the two parties. The legal arguments therein centred not on the UDRP, but on those related Business, Family and Contract Law.

This dispute certainly suggests the father and son have not been on the best terms

While the Complainant alleged that the Respondent was not authorised to use the domain names, and was “holding them hostage,” the Respondent argued that the Complainant, as his father, had treated him poorly over the years, both personally and in business, and that he did hold a right in the domain names. Several non-UDRP related issues were brought up by both parties in the case file, several related to ongoing disputes about Respondent’s role within the Complainant’s business. These issues were concurrently being examined in active cases before the courts, and there was no way the panel could make a definitive finding against the three elements before it based on the parties’ submissions. As a result, the Panel found it inappropriate to make a finding and as such dismissed the case. Rather than featuring alleged Cybersquatting or abusive domain name registration, the Panel found that the case instead centred on ongoing business and civil disputes between the parties well beyond the law of trademarks. It instead extended into contract law, and fiduciary responsibility, well out of the scope of the UDRP.

While the UDRP is not bound by precedent, Panels often cite important prior cases to substantiate their reasoning and justify their decisions. In deciding to dismiss the case because it fell outside the scope of the UDRP, the Panel referenced Love v. Barnett, FA 944826, in which it was found that when both parties each hold at least a prima facie case for a right in the disputed domain name, the case falls outside the scope of the UDRP. The UDRP is not an avenue for weighing up parties competing rights, nor can it make judgements when parties differ significantly on the basic facts of the case, without clear and conclusive written evidence. UDRP panels lack the rigour of the courts to examine the credibility of evidence and as such, these disputes lay beyond the scope of the Policy. Such disputes are almost always better left to litigation.

That said, it is rare for panels not even to consider the case before it against the three elements of the policy. However, doing so clearly suggests that the UDRP was inappropriate to resolve the issues raised in this case.


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