You might need a flow chart to track what happened in this weird dispute.
Creatd, Inc., which runs a site called Vocal, has won a cybersquatting dispute against Epik owner Rob Monster over the domain name Vocl.com. It’s one of the zaniest UDRP cases I’ve read in a while.
Mike Lindell, the MyPillow guy most famous for claiming the 202o U.S. presidential election was stolen, planned to launch a social media site called Vocl. But Creatd objected to that, so Lindell quickly pivoted to the name Frank.
But there was a lot going on behind the scenes with the domain vocl.com during that time. Here’s what happened, according to World Intellectual Property Organization panelist David Bernstein:
As of early March 2021, the record owner of the disputed domain name was Anonymize, which was holding the disputed domain name on behalf of its beneficial owner, Ashwin Vinkhona. On or about March 7, 2021, representatives of Mike Lindell, an American businessman and the CEO of MyPillow, contacted Epik and Anoymize to seek to purchase the disputed domain name. Mr. Lindell intended to use the disputed domain name in connection with a new social media service with an emphasis on free speech that he planned to call VOCL. Mr. Monster, on behalf of Mr. Vinkhona, negotiated the sale of the disputed domain name to Mr. Lindell’s representatives. On March 9, 2021, Mr. Lindell’s agent, Todd Carter, purchased the disputed domain name for Mr. Lindell from Mr. Vinkhona for USD40,000 (with Mr. Monster receiving approximately USD5,000 as a broker commission). Shortly thereafter, the disputed domain name resolved to a website that stated:
While waiting on Vocl.com to launch why not check out LindellTV.
Also on March 9, 2021, Mr. Lindell filed a U.S. application for the mark VOCL and shortly afterwards announced to media outlets that his new social media service would be named VOCL.
The Complainant sent a cease and desist letter to Mr. Lindell on March 11, 2021 objecting to his planned use of the name VOCL and demanding that Mr. Lindell transfer the domain name to the Complainant. In an interview the next day, Mr. Lindell responded to a question regarding his new site’s name by stating that “we looked into [the name VOCL] and we believe it would be confusing, so we are going to announce a different name and URL.”
Following Mr. Lindell’s announcement, his agents sought to cancel the purchase of the disputed domain name, but the transaction had already been consummated and the purchase price (less commission) had already been distributed to Mr. Vinkhona. After learning that the sale had been consummated, instead of transferring the disputed domain name to the Complainant, Mr. Lindell’s agent engaged in discussions to sell the disputed domain name to the Respondent. On or about March 13, 2021, Mr. Carter (as agent for Mr. Lindell) sold the disputed domain name to Mr. Monster, for USD10,000 (with Mr. Monster using the Anonymize privacy proxy), which represented a 75 per cent reduction from the price that Mr. Lindell paid for the disputed domain name just four days earlier.
So that’s the final story, according to Bernstein. But it’s not the original story he got. Bernstein notes:
In its first Response, the Respondent claimed that it never transferred the disputed domain name to Mr. Lindell, and that the Respondent had owned the disputed domain name without interruption since September 2020, long before Mr. Lindell announced his plans to start a social media service under the name VOCL. This assertion was inconsistent with the verification provided by the Registrar (of which Mr. Monster is CEO); the Registrar had informed the Center that the “the date on which the current Registrant [whom it identified by name as Mr. Monster] registered (or acquired the registration of) the domain name” was January 22, 2000.
Oh, there’s more:
Following the Panel’s request for clarification, the Respondent submitted a supplemental submission in which it represented that Mr. Monster personally acquired the disputed domain name in September 2020, and that, although Epik had discussions with Mr. Lindell’s representatives, Mr. Lindell’s purchase of the disputed domain name was never consummated. In particular, the Respondent claimed in its first supplemental submission that Mr. Lindell’s company transferred USD40,000 to Epik in escrow pending due diligence on the name, but once Mr. Lindell abandoned his interest in the VOCL name, Mr. Lindell cancelled the purchase and the USD40,000 was returned to him from escrow without Mr. Lindell having ever acquired title to the disputed domain name. These representations were made in a submission signed by the Respondent’s counsel (although counsel did state that the Respondent was still searching for documentary support and that the Respondent would supplement the record if it were successful in identifying further information).
Six days later, Monster filed a sworn statement correcting the previous statements, more or less in line with the factual history Bernstein published in the decision.
All of this got Bernstein rather hot under the collar. He wrote:
This is an unusual case in that the Respondent is the CEO of the Registrar and also is described as the “governor” and “head” of the Registrar’s subsidiary, Anonymize, which was used for a privacy shield. These relationships create an inherent conflict of interest since the Panel relies on the Registrar to provide accurate information in response to the verification request, but the Respondent, who also is the CEO of the Registrar, would have an interest in hiding accurate information about the ownership of the disputed domain name (not to mention other domain names it may acquire) in order to strengthen the Respondent’s arguments with respect to its purported legitimate interest and potential bad faith.
Bernstein noted that, on the basis of the dates in the original registrar verification, he would have not found registration in bad faith. And he pointed out there were still inconsistencies:
The information provided both by the Registrar and in the Response was materially inaccurate, and it was only after the Panel issued procedural orders seeking clarification that the Respondent corrected the record and admitted that Mr. Monster personally was the registrant but that he only acquired the disputed domain name in March 2021, after the Complainant acquired its trademark and after Mr. Lindell announced and then abandoned his plans. Even still, there remain unexplained inconsistencies in the documentary material submitted by the Respondent: the emails between the Registrar and Mr. Carter indicate that the seller of the disputed domain name on March 9, 2021 was Mr. Monster (not Mr. Vinkhona) and that there was no broker involved, but the internal escrow documentation the Respondent submitted states that Mr. Monster was the broker for Mr. Vinkhona.
He asked WIPO to share the decision with ICANN and questioned if there should be restrictions on registrars, their agents or employees from owning domain names. Of course, that’s a ridiculous request. You can’t ask a registrar to tell its employees they can’t register domains for themselves. But it’s understandable why Bernstein is frustrated, and certainly, there should be rules (and penalties) in place that require a registrar to provide accurate information to panels.
Bernstein ordered the domain transferred to Creatd.
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