Recent Case Notes & Commentary

WHEN A VEXATIOUS CLAIM BECOMES REVERSE DOMAIN NAME HIJACKING

AgSpace Agriculture Limited v. Anthony Glynn, AG Space Industries WIPO Case No. D2019-1532 August 27, 2019

WIPO Case DSE2019-0024 , 22 August 2019


A respondent does not necessarily have to assert that it is a victim of reverse domain name hijacking (RDNH) for a panel to conclude that it is. When an abuse of the administrative process becomes apparent on the facts, panellists can come to such a conclusion of their own accord, even if the Respondent has not asked for a finding of RDNH, which is what happened in the case of AgSpace Agriculture v AG Space Industries.


AG Space Industries had been using the domain name <agspace.com> since 1998 yet AgSpace Agriculture attempted to seize it, knowing full well that the Respondent had a legitimate interest in using it. AgSpace Agriculture was also aware that the two companies operated in different industries and sold separate products, namely software in the agriculture industry, and hardware in the construction industry. Prior to filing the claim, AgSpace Agriculture attempted to buy the domain name from the Respondent twice, initially for 500 GBP and then 700 GBP. On both occasions it used the threat of UDRP proceedings to induce a sale and on both occasions the Respondent denied ever intending to sell the domain name. And yet, the Complainant asserted bad faith in the form of cybersquatting with an intention to profit from the domain name.


Needless to say, the claim failed. The dominant reason however, was that the Respondent clearly had rights to the name through the sale of power tools since 1998 i.e. in connection with a legitimate business purpose and further, it had been operating for about 14 years prior to AgSpace Agriculture registering the relevant trademark.


The mere failure to succeed in a UDRP claim will not be considered RDNH, but if it seems that the Complainant’s knowledge was such that it knew or ought to have known that its claim was doomed to fail but had effectively harassed the Respondent by bringing it, panels are likely to consider that RDNH has occurred and so find.