In our recent post entitled Reverse Domain Name Hijacking (RDNH) - recent cases, we looked at two decisions, Sébastien Paches v. Dvlpmnt Marketing, Inc., WIPO Case No. D2019-0742, and Limited Liability Company AV 808 v. Brian Cury, EarthCam, Inc. WIPO Case No. D2019-0625. The cases had similar facts and in the first case, the claim was Denied, and RDNH was found. In the second case, the claim was also Denied, but RDNH was not found. How can it be that different results on RDNH can be arrived at on similar facts. It shows that the decision to find RDNH or not to find it, is finely balanced and may well be decided on unique, discrete, or perhaps unusual facts that just tip the balance one way or the other. It is therefore important that parties put in all their evidence that might show a good case for RDNH or a good case for rejecting it.
Here is another decision that does not make the dichotomy of results on RDNH any easier to understand.
Hims, Inc. v. Sharad Patel
FORUM, Claim NO: FA1810001810653
November 16, 2018
Here the substantive claim itself was doomed, because the Respondent had owned the domain name for 20 years before the Complainant had first used its trademark. In keeping with the view expressed by panellists that this prevented a finding of bad faith, the claim was dismissed. But did it also mean that there should be a finding of RDNH? No.
The claim for RDNH was put on several grounds, i.e. that Complainant was not candid in its Complaint because it did not acknowledge the descriptive meaning of HIMS, its relevance to Respondent’s field of business, or Respondent’s prior uses of the disputed domain name. It was also argued that the Complainant did not provide an account of its many attempts to purchase the disputed domain name from Respondent which might have led to the case being seen as a Plan B Case.
You might have thought that this amounted to a good case for RDNH. Instead, the panel found that the Complainant “had a colorable claim based on arguments of bad faith renewal of the disputed domain name, therefore declines to find reverse hijacking.” Interestingly, that was an argument that the panel had just rejected.
To read the whole decision: https://www.adrforum.com/domaindecisions/1810653.htm