Aussie complainant cops it

[neddy]

I was just reading the latest article from Andrew Allemann's Domain Name Wire.

It concerned a recent win by famed Domain Name Attorney John Berryhill.

But what really caught my attention was that the complainant was an Australian company represented by Pointon Partners. I think it is fair to say that it wasn't a "good day at the office" for either of them.

In the present case, the Panel considers that the Complainant is represented by Counsel who even on a
rudimentary examination of the Policy and its application in this area should have appreciated that the
Complaint could not succeed where the Respondent’s domain name had been acquired by the Respondent
two years prior to filing the ELK trademark application.

Not only did they lose, but they got done for reverse domain name hijacking!

It's worth having a quick read, and bookmarking this case imho.

Here are some further relevant quotes:

Moreover, there is no evidence that the Respondent pretended that it was the Complainant, advertised goods
that the Complainant sells, tried to confuse Internet users, sought to damage the Complainant or its business
or engaged in any other bad faith activities.

It is clear to the Panel that the Complainant knew or ought to have known that the Respondent’s registration
and use of the disputed domain name could not, under any fair interpretation of the reasonably available facts,
have constituted registration and use in bad faith. The Panel therefore finds that the Complaint was brought in
bad faith and constitutes an abuse of the administrative proceeding.

The Complainant’s statement in paragraph 1 of the Complaint that “the Complainant wishes to secure the domain
name and has made previous attempts to secure this domain name” indicates that the Complainant is using the
UDRP as an alternative purchase strategy after the acquisition of the Disputed Domain Name failed.

The moral of the story is make sure you get your "Elks" in a row before making a complaint!
.

 

[Cooper Mills DomainLawyer]

sounds like a great outcome. Unfortunately we don't have enough reverse domain hijacking findings as panelists don't want to 'offend' the complainant when they lose.

This passage you quote is unfortunately what is happening more often:

The Complainant’s statement in paragraph 1 of the Complaint that “the Complainant wishes to secure the domain
name and has made previous attempts to secure this domain name” indicates that the Complainant is using the
UDRP as an alternative purchase strategy after the acquisition of the Disputed Domain Name failed.

 

[neddy]

sounds like a great outcome. Unfortunately we don't have enough reverse domain hijacking findings as panelists don't want to 'offend' the complainant when they lose.

The great thing in this case Erhan is that all three panelists are Australians.
.

 

[DavidL]

This passage you quote is unfortunately what is happening more often:

The Complainant’s statement in paragraph 1 of the Complaint that “the Complainant wishes to secure the domain
name and has made previous attempts to secure this domain name” indicates that the Complainant is using the UDRP as an alternative purchase strategy after the acquisition of the Disputed Domain Name failed.

Same could be said of 90% of the complaints to auDA I would suggest...

Lost count of the times I get an offer to buy a domain, which, if not accepted, results in a complaint coming through a few days later

 

[Cooper Mills DomainLawyer]

Same could be said of 90% of the complaints to auDA I would suggest...

Lost count of the times I get an offer to buy a domain, which, if not accepted, results in a complaint coming through a few days later

I agree David, and it is increasing. I raised this with Jo at auDA, who is aware of the situation.

I recommend that where the threat is made in an email, keep the email (or in the case of a phone call keep contemporaneous notes of the call) and forward it to auDA when responding to a complaint, just so they know it is a bad faith complaint.

 

[findtim]

keeping DETAILED notes is essential for things like this.

 

[AnthonyP]

Just playing devils advocate here but maybe the trend we are noticing is actually that more people are willing to approach for a sale before using the auDA approach. Perhaps this is a sign of a good trend not a bad one and if everyone starts reporting bad faith complaints then the trend will return back to a pure auDA approach with zero opportunity to make a sale.

 

[findtim]

Just playing devils advocate here but maybe the trend we are noticing is actually that more people are willing to approach for a sale before using the auDA approach. Perhaps this is a sign of a good trend not a bad one and if everyone starts reporting bad faith complaints then the trend will return back to a pure auDA approach with zero opportunity to make a sale.

doesn't your statement actually negate itself? just because i get approached doesn't mean i have to sell and if they haven't approached me doesn't mean they have a right to just take it down a legal path

tim

 

[GGroup]

Great find Ned. Thanks for sharing.

 

[Victor]

What absolute turkeys ...

That's a pretty experienced panel there (although it sounds like the Complainant - or perhaps their lawyers - made it pretty easy for them with an utterly misconceived Complaint) so it's good that they made the reverse domain hijacking finding.