I recently had occasion to set out in a decision some thoughts on Reverse Domain name Hijacking ( RDNH). Although this was only one opinion in a three person panel decision and the other panellists did not make a finding on the issue, I thought it might be of sufficient interest to colleagues working in this field to set it out here, as it was an opportunity to bring up to date my thinking on the issue. The subject is a vexed one for panellists , as to whether to deal with the issue at all and how to decide it when the facts are 50/50 in favour of one party or the other on this issue.
There is also the issue that sometimes troubles panellists. namely what is the point of considering the RDNH issue when there are no consequences in terms of the actual case, even if a finding of RDNH is made.
As in all cases, the facts are important, I would suggest that you read the unanimous opinion on the substantive issues in the case before reading this additional contribution of mine on Reverse Domain Name Hijacking. Following now is my opinion on the RDNH issue in this case.
"Concurring Opinion with Minority Finding of Reverse Domain Name Hijacking"
I agree with the decision but I would have also made a finding of Reverse Domain Name Hijacking in this case.
I have already expressed my views in general terms about this issue and those views may be found in an article at “http://domainnamewire.com/2009/07/13/an-arbitrators-view-of-reverse-domain-name-hijacking/” and in the following decision: Shoe Land Group LLC v. Development, Services c/o Telepathy Inc. (NAF case no. FA1255365). Naturally, all such observations are open to the qualification that all cases must be judged on their merits and in the light of the facts in each individual case.
It seems to me quite clear, in the light of the way that the Rules, paragraph 15(e) and the definition of Reverse Domain Name Hijacking in the Rules, paragraph 1, are drafted, that the issue may be considered even if the Respondent has not asked for such a finding.
In the present case, the facts justify a closer look at whether such a finding should be made and in my opinion it should be made.
The Complainant’s case was hopeless from the beginning and should not have been brought. It may well be that the Complainant and its lawyers were not familiar with the UDRP. But even if that were the case, a cursory examination of the Policy shows that certain basic elements must be proved and if those preparing the Complaint find, as anyone familiar with the facts of this case must have deduced, that it would be impossible to prove those elements, the claim should not be brought.
There was never any prospect of proving any of the three elements in the Policy as the facts clearly do not exist to prove them and the Complainant seemed to acknowledge this by not even attempting to prove them. It did not submit that it had a registered or common law trademark or adduce any facts that, even on the most charitable interpretation, showed that it had such an entitlement. Its case on the other two elements was a series of formal assertions and reliance on the fact that the disputed domain name was for sale. It also overlooked the main point about this case which is that the disputed domain name was registered 6 years before the Complainant was incorporated, requiring that for the Respondent to be liable, even in a layman’s sense, it must have had what were referred to in Success Bank v. ZootGraphics c/o Ira Zoot, (NAF case no. FA1259918) as “psychic powers” to predict that the Complainant would be incorporated several years later.
All of this might be put down to inexperience rather than bad faith. But what has swayed me is that instead of dealing with the evidence, the Complainant chose to attack the Respondent’s bona fides and to allege, before it saw the Response and the Respondent’s version of events, that it was guilty of bad faith and that it was “predatory and parasitical”, apparently because it had registered a domain name that the Complainant, 10 years later, now wanted, but which is for sale at a price it does not want to pay.
Such allegations can always be made, but they should not be made unless there seem on reasonable grounds to be facts to support them. Moreover, those who make such allegations run the risk of an examination of their own bona fides, for allegations of bad faith made without supporting facts are themselves a form of bad faith and that is the feature that the Rules require to be in evidence before a finding of Reverse Domain Name Hijacking may be made. When it is then seen on such an examination that its own case, complete with accusations of bad faith and of other allegedly improper behaviour, is not only without merit but entirely baseless, a finding of Reverse Domain Name Hijacking is open and should be made in an appropriate case. This case, on the totality of the evidence is such a case and it is by no means a borderline one.
I would therefore make a finding that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.