We have spoken before about the consequences of bringing a weak case before a Panel, namely when a Panel finds that a complainant has used the dispute resolution process abusively and hands down a finding of Reverse Domain Name Hijacking (RDNH).
Put simply, RDNH is the process whereby the complainant trademark holder uses the dispute resolution system in order to bully or harass the registrant into transferring the domain. This is usually accompanied by a complaint that has little to no legal basis or provides weak evidence. Under Paragraph 15(e) of the UDRP Rules, the Panel has the discretion to declare a complaint to be an abuse of the proceeding “if after considering the submissions the Panel finds that the complaint was brought in bad faith”.
Like all discretions given to courts and tribunals, the discretion has to be exercised judicially.
There is no hard and fast method of achieving or avoiding a finding of RDNH, and Panelists will have different criteria for reaching a decision on defining what constitutes “bad faith”. In the WIPO Overview 3.0, WIPO provide some guidance about what might constitute an abuse of proceedings. It lists factors such as whether the complainant knew or ought to have known It would not succeed, submitting incomplete or false evidence (or no evidence), or filing the complaint after attempting to purchase the domain but not being able to afford the price. This last example has been commonly labelled a “Plan B” case and is not appreciated by Panelists, although of course all cases depend on their own facts.
A recent example of this was the WIPO case of Cyarx Technologies Ltd. v. Taylor Robison (Case No. D2020-0595), in which an Israeli security company pursued a domain which had been registered years before the company was founded in 2015. They had also tried to negotiate a price with the Respondent in 2018 but to no avail. The Panel found that their complaint clearly did not satisfy the UDRP requirements and handed down a ruling of RDNH. Our full commentary on this case can be found here.
Findings of RDNH are not purely cosmetic. In addition to receiving a scolding from the Panel, it is said that such a finding may harm the perception of future complaints and some Involved In the field say that it is damaging PR. There are also internet activists who maintains online databases of cases where RDNH has been found by panels.
Some jurisdictions penalise RDNH, and there Is legislation the United States which enables a UDRP respondent to sue a complainant for damages. In one such case a respondent was awarded over $100,000 after the Complainant was found guilty of RDNH in an American court in 2011. But under UDRP procedures, no financial penalties are attached to RDNH.
The easiest way to avoid such findings is to make sure that your case is rock solid before bringing it to arbitration. Panelists will not penalise bona fide, good faith attempts at arbitration. This (as with all cases) requires good evidence, rather than unsubstantiated allegations. It is also important to understand the purpose of arbitration – it is not an arena in which one party can go after or hope to obtain a domain name It wants but was simply too late to register. Potential claimants should ensure they are across the UDRP Rules and requirements, and the supplemental rules provided by the ICANN service providers beforehand.
All in all, it is not enough simply to fill in the forms. If you want to avoid such a finding against you, you need to prepare, study up and ensure that you have a good body of evidence in your favour.