Reverse Domain Name Hijacking - privatecare.com.au

[Cooper Mills DomainLawyer]

I am pleased to announce that today we successfully obtained a Reverse Domain Name Hijacking RDNH finding against the Complainant in the auDRP relating to privatecare.com.au.
I will post more about the decision and a link to it shortly once it is published. It is great to see that Panels are prepared to make these findings in circumstances where the Complainant is 'trying it on'. In this instance the domain name is a descriptive generic term.

 

[Cooper Mills DomainLawyer]

And here is the decision

 

[neddy]

I am pleased to announce that today we successfully obtained a Reverse Domain Name Hijacking RDNH finding against the Complainant in the auDRP relating to privatecare.com.au.
I will post more about the decision and a link to it shortly once it is published. It is great to see that Panels are prepared to make these findings in circumstances where the Complainant is 'trying it on'. In this instance the domain name is a descriptive generic term.

Good news Erhan - well done.

On a separate issue, are you able to tell us who from auDA (apart from the CEO) will be attending the proposed inaugral member meetup on the 21st June in Melbourne? I've tried to get some answers from auDA directly, but have had no luck. Will you be there?

 

[neddy]

And here is the decision

I just read the dissenting opinion - OMG!

 

[Cooper Mills DomainLawyer]

Good news Erhan - well done.

On a separate issue, are you able to tell us who from auDA (apart from the CEO) will be attending the proposed inaugral member meetup on the 21st June in Melbourne? I've tried to get some answers from auDA directly, but have had no luck. Will you be there?

Not sure Ned. I would love to come, but I have a mediation in Sydney.

 

[Cooper Mills DomainLawyer]

This is another example of why having a 3 member panel as a respondent makes a lot of sense

 

[DomainNames]

And here is the decision

Fantastic!
Now,
1. What is the auDA policy update for RDNH to offer some form of compensation for the owner? This has been delayed for too long.
2. What did the rightful owner have to pay to protect their rights and investment?
3. What is their loss. Financial costs for lawyers, Time, Stress etc.
4. We need your website www.rdnh.com.au up also with these examples and more www.rdnh.com

 

[DomainNames]

This is another example of why having a 3 member panel as a respondent makes a lot of sense

Does it also add further to the rightful owners costs?

 

[DomainNames]

I just read the dissenting opinion - OMG!

Regarding the dissenting opinion and complainant lawyers application it appears there is a need for some people to do some more training on RDNH. It will help stop baseless complaints and embarrassment.

I suggest auDA runs at the earliest possible time a panelist and lawyer training session on RDNH. Erhan you would be the most suitable Presenter.

The rightful owner had to waste a lot of time, money and stress. An auDA policy change of the RDNH can help to reduce this for others

 

[Cooper Mills DomainLawyer]

Does it also add further to the rightful owners costs?

unfortunately yes Sean, our client ended up having to pay about $1500 extra, but in this instance it was the best move

 

[Cooper Mills DomainLawyer]

Fantastic!
Now,
1. What is the auDA policy update for RDNH to offer some form of compensation for the owner? This has been delayed for too long.
2. What did the rightful owner have to pay to protect their rights and investment?
3. What is their loss. Financial costs for lawyers, Time, Stress etc.
4. We need your website www.rdnh.com.au up also with these examples and more www.rdnh.com

As I mentioned I am quietly working on rdnh website, it is nice to have another RDNH on the board. As you say it costs money, but the client had paid $16,500 for the domain so no choice but to defend

 

[DomainNames]

As I mentioned I am quietly working on rdnh website, it is nice to have another RDNH on the board. As you say it costs money, but the client had paid $16,500 for the domain so no choice but to defend

How can a rightful owner who has a RDNH judgement made get back their costs, lost time, stress and damages? This is what we need to see to stop the often procedural abuse by false RDNH lawyers and their RDNH complainants.

In the USA they would sue the RDNH lawyer and RDNH complainant and rightly so. As we know in Canada at least the successful defender would have received $5000 from the RDNH Complainant as per CIRA policy AND the lawyer would probably receive a well deserved reprimand by the panelist decision makers. In a court the RDNH lawyer could find themself in even more trouble for proceeding.

 

[Cooper Mills DomainLawyer]

How can a rightful owner who has a RDNH judgement made get back their costs, lost time, stress and damages? This is what we need to see to stop the often procedural abuse by false RDNH lawyers and their RDNH complainants.

In the USA they would sue the RDNH lawyer and RDNH complainant and rightly so. As we know in Canada at least the successful defender would have received $5000 from the RDNH Complainant as per CIRA policy AND the lawyer would probably receive a well deserved reprimand by the panelist decision makers. In a court the RDNH lawyer could find themself in even more trouble for proceeding.

the points you raise are good points. In the USA they have a number of laws which specifically address domain name disputes like Anticybersquatting Consumer Protection Act (ACPA) and the Lanham Act. Nat Cohen from Telepathy is well known for rightfully using these laws to sue people who try on RDNH, and he has had some great success doing that. For example here is a link to the most recent case. Unfortunately we don't have the ability to do this in Australia, thats the big difference.

 

[snoopy]

I wonder if there is any potential to recover costs & damages under unjustified threats of trademark infringement,

http://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/s129.html

 

[Scott.L]

I wonder if there is any potential to recover costs & damages under unjustified threats of trademark infringement,

http://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/s129.html

I'm guessing, the concept of a domain name as an internet addressing system holds no property rights like a trademark. A domain name cant be used by a third party to exploit it like a trademark can be.

 

[DomainNames]

the points you raise are good points. In the USA they have a number of laws which specifically address domain name disputes like Anticybersquatting Consumer Protection Act (ACPA) and the Lanham Act. Nat Cohen from Telepathy is well known for rightfully using these laws to sue people who try on RDNH, and he has had some great success doing that. For example here is a link to the most recent case. Unfortunately we don't have the ability to do this in Australia, thats the big difference.

Thank you. All the more reason we need auDA and the auDA Board to work on updating Australia policy ASAP

Please push forward with this important amendment. I suggest the amount is increased to $10,000 AUD. This will help with lost time and stress, Respondent defense legal costs, 3 panel members costs etc.

The rightful registrant owners should not suffer without just compensation.

https://cira.ca/assets/Documents/CDRPpolicy.pdf

"4.6 Bad Faith of Complainant. If the Registrant is successful, and the Registrant proves, on a balance of probabilities, that the Complaint was commenced by the Complainant for the purpose of attempting, unfairly and without colour of right, to cancel or obtain a transfer of any Registration which is the subject of the Proceeding, then the Panel may order the Complainant to pay to the Provider in trust for the Registrant an amount of up to five thousand dollars ($5000) to defray the costs incurred by the Registrant in preparing for, and filing material in the Proceeding. The Complainant will be ineligible to file another Complaint in respect of any Registration with any Provider until the amount owing is paid in full to the Provider."
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https://www.coopermills.com.au/reverse-domain-name-hijacking/

 

[Lemon]

At a minimum an auDRP should award costs to the successful applicant similar to the fee structure of IPAustralia.

 

[Cooper Mills DomainLawyer]

I wonder if there is any potential to recover costs & damages under unjustified threats of trademark infringement,

http://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/s129.html

Snoopy, interesting point you raise. I have never seen a groundless threats claim under the Trademarks Act arising from an auDRP. The point to note is that trademark infringement is not a requirement of an auDRP, so any experienced lawyer can avoid alleging TM infringement (and threatening an action) and accordingly, avoid any assertion of groundless threats. But the key point to remember is that the section says "If a person threatens to bring an action against another person ( threatened person ) on the ground that the threatened person has infringed....". It is more likely that 'groundless threats' will occur before an auDRP where a letter of demand is sent.

 

[DomainNames]

Snoopy, interesting point you raise. I have never seen a groundless threats claim under the Trademarks Act arising from an auDRP. The point to note is that trademark infringement is not a requirement of an auDRP, so any experienced lawyer can avoid alleging TM infringement (and threatening an action) and accordingly, avoid any assertion of groundless threats. But the key point to remember is that the section says "If a person threatens to bring an action against another person ( threatened person ) on the ground that the threatened person has infringed....". It is more likely that 'groundless threats' will occur before an auDRP where a letter of demand is sent.

That is a really interesting point about 'groundless threats'.
http://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/s129.html

 

[Cooper Mills DomainLawyer]

Unfortunately clients are usually very reluctant to press the button on a groundless threats claim due to cost