Wednesday , April 21 2021

RDNH on Self-Defended UDRP

A UDRP was filed against the domain name, which was first registered in 2000 – more than twenty years ago. The complainant in the UDRP is a company called Tecme S.A., Argentina. The respondent is a person named Stephen Bougourd, and he represented himself in the UDRP proceeding. The WIPO panelist ruled on this dispute today, and it was ruled in favor of the registrant. In addition, the panelist ruled this was a case of Reverse Domain Name Hijacking (RDNH). As a result, Bougourd will retain the domain name.

The complainant in the UDRP has various trademarks for the Tecme term. According to the dispute, thee complainant “infers that the Respondent chose the Domain Name only to exploit the Complainant’s reputation and has parked the Domain Name for speculative gain.” Rebutting this, the respondent stated that it bought the domain name more than 20 years ago and showed that the domain name was an abbreviation for the business name, “Technology Made Easy.” In addition, the respondent shared the he only owns 14 domain names and has never sold one.

The sole WIPO panelist, W. Scott Blackmer, ruled that the “Complainant has not met its burden of establishing the likelihood of bad faith in both the registration and use of the Domain Name.” Notably, the panelist took it upon himself to consider a finding of RDNH since the respondent did not request this finding on his own. In ruling RDNH, the panel wrote:

“Although the Respondent did not request a finding of Reverse Domain Name Hijacking, the Panel considers this an appropriate case to enter such a finding. Paragraph 15(e) of the UDRP Rules provides that, if “after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking (‘RDNH’) or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding”.

As set out in WIPO Overview 3.0 section 4.16, reasons articulated by panels for finding RDNH include “ (ii) facts which demonstrate that the complainant clearly ought to have known it could not succeed under any fair interpretation of facts reasonably available prior to the filing of the complaint, including relevant facts on the website at the disputed domain name or readily available public sources such as the WhoIs database, (iii) unreasonably ignoring established Policy precedent notably as captured in this WIPO Overview – except in limited circumstances which prima facie justify advancing an alternative legal argument …”.

The Complainant here was fully aware that its trademark registrations postdated the Domain Name registration, on the other side of the world, by a decade. Yet the Complainant neglected to submit evidence to support prior rights in an unregistered mark (see WIPO Overview 3.0, section 1.3). The Complainant should have recognized that establishing bad faith in the registration of a 20-year-old Domain Name would require persuasive evidence that the registrant was likely to have knowledge of the Complainant at that time, a Complainant in a specialized industry, one which lacked even an online presence at the time. The Complainant cited archived screenshots to show that the Respondent had parked the Domain Name for years but failed to discover or disclose that earlier screenshots showed that the Respondent actually operated a website for a business with a name for which the Domain Name was a logical abbreviation.

Altogether, the Complaint displays a remarkable lack of realism that warrants an unsolicited finding of reverse domain name hijacking.”

I think panelists should always consider RDNH on cases like this, even if the respondent did not specifically request a RDNH finding. It is the right decision, and it shows that a domain registrant doesn’t always need to pay for an attorney to defend a domain name in a UDRP proceeding.

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