Recent Case Notes & Commentary

PRODUCE GOOD EVIDENCE OR YOU WILL LOSE

AIRY GreenTech GmbH v. Privacydotlink Customer 3050720 / Samsu Sempena

WIPO: Case No. D2020-1119 , July 3, 2020.

Domain name: <airy.com>


When pursuing a complaint in accordance with the UDRP, one should not turn up empty-handed. Complaints require research, preparation and confidence that a Complainant will succeed before pulling the trigger; as so often is the case, the result all comes down to the evidence. In this recent WIPO case, the disparity in evidence between the parties was so great that not only did the Complainant lose and get hit with a finding of Reverse Domain Name Hijacking, but it also received something of a scolding from the Panel.

The evidence provided by the Complainant was not enough to satisfy the UDRP requirements. The Complainant, a German producer of room-purifying pot plants, alleged that it had a German trademark for AIRY, but not much else by way of evidence. Its main argument seems to have been that if internet users hit on the website to which the disputed domain name resolved, namely www.airy.com, they would be redirected to another web site of Airy Nest, which was in effect the Respondent and an Indonesian hotel booking service, namely www.airyrooms.com. Thus, it was argued, Respondent was trying to mislead pot plant enthusiasts seeking the Complainant into scouting out a trip to Indonesia. The issuing of a cease and desist notice to the Respondent, only to be met with no reply, was the nail in the coffin for the Complainant. Armed with correspondence between the Complainant and the domain name broker (who the Complainant alleged “attempted to hold [their] goodwill to ransom”), they set sail on a leaky ship that was then sunk by the Panel.

The Respondent, a representative of Airy Nest, did what parties in these proceedings, should do, namely produce evidence. It knew that it had to produce evidence, not just arguments, that it was legitimate in every sense of the word, that it was a legitimate busine ss and had a legitimate and believable reason for acquiring and using the domain name. It went all out in providing a comprehensive suite of evidence that not only exonerated the company but successfully led to an RDNH finding. The evidence extended far and wide and included signed contracts with hotels, news coverage about the business, memoranda with Indonesian public bodies, and screenshots of the company’s popular Facebook account with hundreds of thousands of followers. This evidence showed that it was a legitimate booking service and therefore had a legitimate reason for registering and using the domain name.

It probably also helped in the success of another of its arguments, that it was commonly known by the domain name.

Importantly, the Respondent provided evidence that over 95% of its website’s traffic came from Indonesia, which also helped to establish that it was not trying to harm the German complainant and that it had a legitimate interest in the domain name that centred on its market in Indonesia. The Respondent was even able to establish that Airy Nest came up as a “suggested similar page” on the Complainant’s LinkedIn profile due to its popularity!

Clearly the same evidence showed it was not acting in bad faith in registering or using the domain name.

The Complainant therefore lost the case because of a lack of evidence.

But things got worse when the Panel considered the Respondent’s request for a finding of Reverse Domain Name Hijacking. The Panel certainly did not hold back. Its response is neatly summed up in its finding that “the Complainant’s failure to undertake what would have been reasonably modest research into the Respondent’s identity and business activities demonstrates at best carelessness and, at worst, a wilful disregard for the obligations placed upon it by the Policy.”

In this regard, we make the point for practitioners in this field that of those cases where a Complainant fails, it is often because it has not checked out whether the Respondent is just a cybersquatter, as they suspect, or whether it might be a legitimate business with a legitimate reason for acquiring and wanting to hold onto the domain name. It is usually unwise for complainants to shoot first and ask questions later. This is one such case that illustrates that proposition perfectly.

For good measure, the Panel went on to scold the Complainant further for draining the Respondent’s resources by bringing the complaint in the midst of a pandemic, one which has severely impacted the tourism industry and caused the indefinite shutdown of the Respondent’s business.

The prevailing lesson from this case is, therefore, that a potential Complainant should place a high regard on the power of good and detailed evidence. If you want to succeed and also to prevent a finding of RDNH against you, it is better come prepared.