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Recent Case Notes & Commentary

Redaction of Respondent’s Name: Exceptional Cases and the Availability of Redaction

BRF S.A, f/k/a BRF – Brasil Foods S.A. v. (Redacted)

National Arbitration Forum case: Claim Number: FA1410001583509

November 7, 2014

Most people can relate to a situation where they have had a wallet containing credit cards and personal identification either lost or stolen. The ensuing frenzy of attempting to cancel credit cards in a timely manner is an experience no-body thinks fondly of. Now imagine that subsequent this stressful event, you receive an email alleging that you have engaged in trademark infringement in relation to an internet domain name registered using your details.

However, you have never heard of the trademark in dispute, nor entered into any sort transaction in bad faith hoping to squeeze a few dollars from a company. You are the victim! Why is your name associated with cybersquatting, rather than the actual perpetrators who stole your credit cards and committed fraud in the first place?

Fortunately for those who may experience identity theft or other instances of fraud, there is a rule in place to have their name redacted from UDRP proceedings.

The Parties

The dispute relates to registration of the domain name <>. Following submissions by the Complainant, the Respondent did not provide a formal response to the Panel. Instead, the Respondent stated he possessed no knowledge of the domain name, and that his personal information had been used fraudulently in its registration. Accordingly, he did not wish to be party a proceedings.

Why was the Respondent’s Name Required as a Party at all?

In this case, the respondent had suffered the misfortune of identity theft. Accordingly, all that is required is simply to withdraw the Respondent’s name from the record, right? Unfortunately for the Respondent, this is not possible.

Under paragraph 1 of the Rules, the meaning of a Respondent is “the holder of a domain name registration against which a complaint is initiated”. Therefore, if the domain name is registered under their name, then for the purposes of the Policy they are the Respondent in proceedings. For example, if the disputed domain name had been registered in the name Donald Duck, then Mr Duck would later be named as the Respondent if proceedings were launched under the Policy.

However, all is not lost for an unlucky and unwilling Respondent, as Panellists are given power to overcome these exceptional circumstances.

Paragraph 4(j): The Panel can Redact Portions of Decision

Unusual cases such as this highlight the rigidity of procedural rules, in that an individual who has already been the victim of crime, is now associated with trademark infringement although they held no involvement or knowledge of what had transpired. However, Panellists have been granted discretion to remedy inequitable outcomes such as this.

Paragraph 4(j) of the Policy grants Panellists the flexibility to redact portions of decisions in exceptional circumstances. Because names are considered to be “portions of its decision”, paragraph 4(j) can be useful to those who do not want their name splashed on the Internet. To invoke this provision, Panels are required to analyse the circumstances of a case and come to a conclusion that redaction is warranted.

Given the circumstances, it was clear to the Panel that it should redact the Respondent’s name, which it did by its Order. This was a clear case of identity theft, allowing for the Respondent’s name to be removed.

While circumstances such as the ones that arose here are rare, it is useful to remember that redaction is available for those that need it.

NOTE: Research for this case note was carried out by Jacob Bayley but the text and the opinions expressed are those of the editor.

[1] This case was decided by the editor, The Hon N A Brown QC

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