Alex Lerman, a long-time investor in generic domain names, was until recently the registered owner of XC.com. Alex confirmed on a phone call that he no longer owned the domain.
Alex does not wish to publicly disclose the sales price. He is known for not offering his domains for sale, so it likely took a substantial offer to persuade him to part with it.
The new owner appears to be giant Chinese travel company Ctrip. Ctrip’s Pinyin name is Xié chéng, thus its interest in xc.com.
Ctrip is publicly traded on NASDAQ with a market capitalization of nearly 6 billion dollars. Its market value has more than doubled in the past year.
This sale again demonstrates the tremendous impact that the Chinese have had on the domain market. Domains that were out of favor, such as number domains and acronyms that include ‘x’, ‘q’, ‘j’, and ‘z’, are now in high demand thanks to interest from Chinese buyers.
Chinese buyers with an interest in two-letter dot-com domains have been good for Alex as last year he sold jd.com to another Chinese company for an amount that most speculation has in the millions of dollars.
Hat tip to the Chinese domainer who passed on the news
The sloppy cut-and-paste decision in the Calibers.com UDRP demonstrates once again the National Arbitration Forum’s (NAF) shoddy practices and some panelists’ lack of respect for the Reverse Domain Name Hijacking (RDNH) finding. The decision also highlights the poor implementation and oversight of the UDRP policy, the policy that controls how a domain owner loses the rights to his or her domain name.
In the Calibers.com dispute, the Complainant tried to use the UDRP to steal the calibers.com domain name, despite the fact that the domain was registered a decade prior to the Complainant’s trademark registration date and despite the domain owner’s 13 years of use of the domain in its descriptive sense. The panelist rightly denied the complaint.
But why didn’t the panelist find Reverse Domain Name Hijacking? This case seems like an obvious example of RDNH. RDNH has been found in dozens of similar situations where the domain predated the trademark rights, where there was clear legitimate use and where there was no evidence of bad faith. Why wasn’t RDNH found in this case?
In the section on RDNH, we’ll see that the panelist copied and pasted irrelevant nonsense that demonstrates the lack of integrity with which the panelist discharged his responsibilities. NAF is likely complicit in this, as the language used was apparently boilerplate language provided to the panelist by NAF.
Let’s look at the panel’s discussion of RDNH that led him to conclude against making an RDNH finding. We’ll examine it one piece at a time. It starts-
As the Panel finds that Complainant has satisfied Policy ¶ 4(a)(i), the Panel finds that Complainant has not engaged in reverse domain name hijacking.
Under 4(a)(i), the Complainant has to demonstrate that: ”(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights”. As explained at the recent WIPO Workshop in Geneva, this first test is treated as whether a Complainant has met the minimum standing to bring a dispute and is interpreted very generously by most panelists.
For instance, hzcar.com was found confusingly similar to Hertz: ”to this Panel’s eye and ear, HZCAR is similar to ‘Hertz Car’ and thus to Complainant’s HERTZ trademark. Complainant has on balance established this Policy element.”
MaddHattEntertainment.com was found confusingly similar to MADD: ”the Panel finds that Respondent’s <maddhattentertainment.com> domain name is confusingly similar to Complainant’s MADD mark pursuant to Policy ¶ 4(a)(i).”
Uniprotein.com was found to be confusingly similar to Universal: ”Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a re-view of the record that the <uniprotein.com> domain name is, as alleged in the Complaint, an amalgamation of a common abbreviation of Complainant’s UNIVERSAL trademark and the term “protein,” which describes an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” The combination is confusingly similar to Complainant’s mark.”
Bodacious-tatas.com was found to be confusingly similar to Tata: “One might think, nevertheless, that the inclusion of the word “bodacious” in the domain name registered by the Respondent, taken together with the addition of the letter ‘s” to TATA, could create a sufficient distinction, for trademark purposes, between the Complainant’s TM TATA, on the one hand, and the Respondent’s Domain Name on the other. Such a contention, however, is untenable in the view of the Panel, by virtue of the very high level of goodwill that both TATA and TATAS have acquired.”
As these cases demonstrate, the criterion in 4(a)(i) presents such a meaninglessly low hurdle to a Complainant that even an ant could jump over it, thanks to many panelists’ eagerness to help lower the bar.
The view that meeting the criterion in 4(a)(i) is sufficient to prevent a finding of RDNH is a minority view. Indeed 95%+ of RDNH decisions are found in cases where 4(a)(i) of the policy has been satisfied. The panels in these cases will find RDNH because the Complainant should have realized that its complaint was fatally flawed due to any one or all of the following factors- a) the domain name proceeded the trademark rights, b) the Complainant was aware of the domain owner’s legitimate rights to the domain, or c) there was no evidence of bad faith. Any one of these factors is sufficient for a finding of RDNH. In the calibers.com case, all three are present.
In cases such as calibers.com where the domain is an exact match for a generic term, and the trademark is also on a generic term, then the fact that the trademark is exactly the same as the domain makes the Complainant’s bad faith worse, rather than lessens it, as it means that the Complainant is trying to use the UDRP to steal a domain based on a word that has substantial inherent value.
We move on to the next line in the panelist’s discussion of RDNH-
See World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001) (“Because Complainant has satisfied [all of] the elements of the Policy, Respondent’s allegation of reverse domain name hijacking must fail”);
Here the panelist cites a case where the domain was TRANSFERRED as a reason not find RDNH. This is the most obvious goof in the decision. The WWF case should only be cited in cases where the Complainant has “satisfied all of the elements of the Policy”, in other words, when the Complainant won. Here the complainant lost, and lost badly. The panelist apparently just cut and pasted language provided by the NAF, without bothering to check that it was citing a case where the findings contradicted the findings in the present case.
Here’s the next case cited by the Calibers.com panel as relevant to its finding against RDNH-
see also Gallup, Inc. v. PC+s.p.r.l., FA 190461 (Nat. Arb. Forum Dec. 2, 2003) (finding no reverse domain name hijacking where complainant prevailed on the “identical/confusingly similar” prong of the Policy).
This case is over the domain “gallupeurope.com“. As described by the panel in the gallupeurope.com case, the facts in this care are:
Both the Respondent and the Complainant have registered trademarks that correspond to the disputed domain name.
There has been a prior business relationship between the parties.
The parties were involved in litigation over conflicting trademark rights prior to institution of this proceeding.
The fact pattern in GallupEurope.com is quite unusual and would rarely apply to the facts in a UDRP dispute, and they certainly have no relevance at all for the calibers.com dispute.
Why did the panelist in calibers.com cite a 13-year old World Wrestling Federation case and a 10-year-old Gallup Inc. case as precedent for not finding RDNH in the calibers.com dispute when neither had any relevance to the calibers.com dispute? Did the panelist research thirteen years of UDRP disputes and settle on these two cases as the ones that were most on point? No, the answer is that the WWF case citation and the Gallup case citation are boilerplate language that has been cited in hundreds of NAF and WIPO decisions going back over a decade.
For instance, let’s look at what the diversden.com decision from 2011 to see why the panel declined to make an RDNH finding:
Complainant has satisfied Policy ¶ 4(a)(i), accordingly, the Panel finds that Complainant has not engaged in reverse domain name hijacking. See World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001) (“Because Complainant has satisfied [all of] the elements of the Policy, Respondent’s allegation of reverse domain name hijacking must fail”); see also Gallup, Inc. v. PC+s.p.r.l., FA 190461 (Nat. Arb. Forum Dec. 2, 2003) (finding no reverse domain name hijacking where complainant prevailed on the “identical/confusingly similar” prong of the Policy).
Hmmm. Nearly a word-for-word copy of the language in the calibers.com decision. And once again an entirely wrong-headed citation of the WWF case as, in the calibers.com dispute, the respondent prevailed in the DiversDen.com UDRP dispute. The Gallup case citation is similarly irrelevant and misguided.
Panelist Neil Brown shredded the rationale for using this boilerplate language and for citing the WWF and Gallup cases in disputes where the Respondent prevails in his dissent in the Shoeland.com decision, where he argued that a RDNH finding was justified-
It is true that Complainant has succeeded on one element of the Policy, namely that the disputed domain name is identical to the registered trademark. It is sometimes said on the basis of World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles(supra) and Gallup, Inc. v. PC+s.p.r.l., (supra) that there should not be a finding of reverse domain name hijacking when the Complainant has been partly successful. But in the former case, Complainant had succeeded on all three elements, including a finding against Respondent of bad faith registration and use; it would have been inconceivable that a finding of reverse domain name hijacking could then have been made against Complainant. In the latter case, the trademark of the famous company had been registered 18 years before the domain name and there was a real dispute between the parties that justified the filing of the Complaint. None of those features are present in the instant case, which is essentially one where there was no reasonable ground for Complainant’s making the claim or alleging bad faith.
In any event, Complainant has succeeded on the first element only in the most notional way and on an issue that it did not really advance. Its allegation was not that the domain name was identical to the trademark; its argument was solely that the domain name was confusingly similar to the trademark, which it was not, for no reasonable bystander would assume that the ‘shoeland’ of the domain name was invoking the Shoe Land of Complainant, confined as it was to two stores in one city and with no presence of the internet. Accordingly, Complainant has not succeeded in any substantial sense on any of the issues in this proceeding
Those considerations show that within the meaning of Paragraph 15(e) of the Rules, the Complaint was brought in bad faith in an attempt at Reverse Domain Name Hijacking.
It is bizarre that two cases from the earliest days of the internet continue to be precedents of choice tens of thousands of cases and thirteen years later. It is even more bizarre when the GallupEurope.com case presents an extremely rare combination of factors that has no relevance for 99% of UDRP cases. It is a travesty that the WWF case is cited as a reason against finding RDNH in disputes where the respondent prevails.
What lessons can we learn from the calibers.com case?-
1. Some panelists don’t even bother reading the decisions they cite in their cases.
2. When the WWF and Gallup cases are cited when the transfer is denied, it means that the Panel did not give serious consideration to a finding of Reverse Domain Name Hijacking, preferring to use (inappropriate) ancient placeholder language rather than approaching the issue of RDNH with an open mind and a fresh perspective.
3. It is time to retire the benchmark language being recycled over and over again for years past the point of absurdity, especially since the language isn’t even relevant to the cases at hand.
5. Domain owners’ rights to their dot-com, dot-net and dot-org domains are only as secure as the quality of implementation of the UDRP. Cases such as calibers.com show the disdain with which the UDRP is treated by those entrusted with its implementation.
Thanks to UDRPSearch.com for the help in researching this post.
Many domains held for investment are at risk of loss due to a radical new approach to the UDRP championed by some UDRP panelists at WIPO’s Advanced Workshop on UDRP Practice and Precedent held in Geneva last week.
Respected WIPO Panelist and the Workshop co-leader, David Bernstein, is a leading advocate for this new approach that changes the criteria that the Complainant must prove to win a transfer of a disputed domain. The standard since the UDRP was introduced in 1999 has been that “Registration in Bad Faith” must be proven before a domain can be transferred. Bernstein, and other panelists who share his views, are using a “Renewed in Bad Faith” standard instead.
The “Renewed in Bad Faith” standard is an open invitation to covetous companies to employ the UDRP to try to steal your domains. As was made clear at the WIPO workshop, under the “renewed in bad faith” standard every renewal provides a panel the opportunity to look at the then current use for evidence of bad faith. Putting a domain to virtually any use other than running an established business on that domain can be viewed as bad faith. The following were all held out as examples of bad faith use at the workshop, and have been cited as bad faith use in many UDRP decisions-
● parking a domain name, whether there are infringing links or not;
● having a GoDaddy landing page on your domain, even if you make no money from it and are not aware of it;
● leaving the domain undeveloped;
● offering the domain for sale;
● having a criticism site on a domain;
● running a business on the domain, if the business is viewed as competitive with the Complainant’s.
Renewing your domain while it is being put to any of the above uses therefore could give a panel grounds to order a transfer under the “Renewed in Bad Faith” standard.
Bernstein used the “Renewed in Bad Faith” standard to order the transfer of Big5.com in a controversial recent decision. The decision is so controversial because Big5.com was clearly registered in good faith. The Taiwanese owner originally registered big5.com for a business in connection with the ‘big 5’ Asian languages, and had a trademark on the term ‘Big 5’ for that purpose, but then allegedly used the domain to target the trademark rights of Big 5 Sporting Goods.
The UDRP details the rules governing a domain dispute in Paragraph 4 of the policy where it states that in order for a transfer to be ordered the trademark holder bringing the dispute, the “Complainant”, must prove three elements, including as specified in section 4(a)(iii), that the “domain name has been registered and is being used in bad faith”. Since all parties acknowledged that Big5.com had been registered in good faith, it would seem impossible for the Complainant to have proven bad faith registration.
How can Bernstein, and the other panelists who take this approach, justify disregarding the clear language of the UDRP? They look outside of Paragraph 4 to the previously little noticed Paragraph 2. Paragraph 2 is a warranty between the domain registrant and the domain registrar. In Paragraph 2, the domain registrant warrants to the registrar that “By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that …(b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party.”
Those who look to Paragraph 2 see it as placing on the domain owner “a continuing duty to ensure that the domain name is not used in violation of another’s rights”. In their view, “The benefit of an original good faith registration should not be perpetual to the point where it can cloak successors in title and successors in “possession” long after the original registration would have expired.”
In other words, according to those panelists who are relying on the Paragraph 2 language, each time a domain owner renews a domain, he is warranting anew that the domain will be used in good faith. Since most domains are auto-renewed each year, this interpretation has the effect of rendering irrelevant the original registration date of the domain, regardless of whether the domain was registered a decade or more earlier.
The dual requirement under the UDRP that a domain must be proven to be BOTH REGISTERED in bad faith and USED in bad faith as a precondition to transfer, is replaced under this approach by condensing the Registration/Renewal date and the use date so that in most cases they are within one year of each other. For practical purposes the Paragraph 2 standard is simply a USED in bad faith standard, as the registration requirement is thrown out the window.
This is made clear in the majority decision in the Big5.com dispute: “the Panel deems Respondent’s 2012 renewal of the disputed domain name to be the date on which to measure whether the disputed domain name was registered and used in bad faith for purposes of paragraph 4(a)(iii).”
Bernstein and his fellow panelist in the majority decision focused on the recent use of the domain. They found that “the disputed domain name at the time of its last renewal was already a prototypical cyber squatting [site] unrelated to any of Respondent’s original business”. By pulling into the arbitration criteria the renewal warranty from Paragraph 2, they thought they had sufficient justification to order the transfer of the domain.
How one looks at the Paragraph 2 approach is likely a matter of perspective. Seen from the perspective of a trademark owner whose mark is being blatantly infringed by a domain name that was originally registered in good faith but then repurposed to abusive target your mark, the flexibility of the Paragraph 2 approach is attractive.
This new approach results from frustration among many panelists that the UDRP as traditionally interpreted is powerless to combat cybersquatting that happens when domains that are legitimately registered are then used to infringe on trademark rights that arise after the domain was registered.
As I understand it, Bernstein and others who are advocating this approach see it as appropriate when there has been a change in the original use of the domain where the domain owner intentionally and opportunistically uses his domain to target trademark rights that have arisen since the original domain registration. But this nuance is likely to be lost on other panelists who are either not as experienced, or who are more aggressive in their approach. If the Paragraph 2 approach takes hold, then I would expect to see a tidal wave of cases all making variations on the following argument-
“It doesn’t matter that XYZ domain was registered 10 years before my company came into existence, when it was last renewed it was being used as a [parked page/ blank page/ for sale page/ under construction page/ GoDaddy lander page/ criticism site] which is a bad faith use that violates the warranty under Paragraph 2 of the UDRP, therefore transfer the domain to me.”
Bernstein and his colleagues may feel a sense of pride that they have found a clever way to strengthen the UDRP to better fight cybersquatting. If this approach takes hold, however, the true consequence is that they will have gutted the UDRP, putting at risk most domains held by domain investors, and even domains held by small businesses that are no longer actively being used.
As with other attempts to introduce novel interpretations into the UDRP, a well-intentioned effort to more effectively combat abusive cybersquatting can create serious side effects that cause harm that far outweighs any good that is achieved. We saw this most recently with the Octagen/Mummygold series of cases where panelists Andrew Christie and Scott Donahey led an effort to revise the paragraph 4(a)(iii) language cited above: “domain name has been registered and is being used in bad faith” by replacing the “and” with an “or” so that merely bad faith use, not bad faith registration, would need to be proven to satisfy this criterion for transfer.
The Octagen/Mummygold line of reasoning encouraged a slew of frivolous UDRP Complaints from companies that wanted to seize domains registered long before the Complainant companies came into existence. As described in the “John Berryhill’s UDRP University” post, Berryhill’s frustration with this line of reasoning led him to select Christie for the panel of these frivolous cases so that Christie could see first hand the consequences of his tampering with the UDRP.
According to Bernstein and Tony Willoughby, his Workshop co-leader, the consensus view of the community of UDRP panelists is now to reject the Octagen/Mummygold approach, in part because to adopt it would undermine 14 years of UDRP precedent. For panelists wishing to maintain the consensus view, Octagen/Mummygold is now foreclosed as an approach for dealing with “repurposed” cybersquatting, leaving panelists in search of a new approach.
What is attractive about the Paragraph 2 approach to its advocates is that it is a novel interpretation that, in their view, does not undermine established precedent as it hasn’t been fully considered before. Yet the Paragraph 2 approach strikes me as disingenuous, because it is simply the Octagen/Mummygold approach in new clothing. While the adoption of Paragraph 2 warranty language relies on a different provision and a slightly different line of reasoning, the practical effect is nearly identical to the Octagen/Mummygold approach, as both approaches permit a panel to disregard the requirement that bad faith registration must be proven. If this approach is illegitimate under Octagen/Mummygold because it undermines 14 years of precedent, it is similarly illegitimate under the Paragraph 2 approach. The Paragraph 2 approach is a new bite at the same apple, a similar violation of UDRP core principles that would also undermine 14 years of precedent. It is simply another way to change the “and” to an “or”.
I find it very concerning that David Bernstein is a leading advocate of the Paragraph 2 approach, as he is held up as an expert on the UDRP and entrusted by WIPO with instructing other UDRP panelists on how to implement the UDRP, so he is very influential. Also, unlike some other panelists, Bernstein is not considered to be hostile to domainers. On the contrary, he has been seen as a panelist who is willing to give a fair hearing to domain investors. Ari Goldberger often selected Bernstein for the disputes he handled. Earlier this year, I advised a domain owner who was handling his own response to consider selecting Bernstein to be on his 3-member panel. Bernstein has shown a willingness to slap Complainants with a finding of Reverse Domain Name Hijacking. He is associated with more RDNH decisions than all but two or three other panelists.
The paragraph 2 approach has also been adopted by Richard Lyon, another well respected and very experienced UDRP panelist who is considered to offer an even-handed treatment to domain investors. Lyon decided the controversial Sporto.com where he ordered the transfer of a 13-year-old domain that had been registered in good faith because of recent use that he found had been in bad faith.
The move to use Paragraph 2 language cannot be attributed to panelists who are “out to get” domain investors. Rather I think these panelists are legitimately concerned that the UDRP as traditionally interpreted does not adequately address certain instances of blatant cybersquatting and, as described above, the panelists are looking to the paragraph 2 language to cover a perceived “gap” in the UDRP’s ability to address cybersquatting. Unfortunately their proposed “fix” breaks the UDRP.
The Paragraph 2 approach is not universally accepted, and has its critics, even among other WIPO panelists. Bernstein’s co-leader, Tony Willoughby, indicated that he is not persuaded that the Paragraph 2 analysis is correct because it requires a panelist to go outside of the confines of Paragraph 4 where the criteria to be used in a UDRP dispute are specified. One of the pleasures of attending the workshop was the opportunity to spend time with John Berryhill, his wife MJ Keukelaar, Paul Keating and Zak Muscovitch. They all view the Paragraph 2 approach as illegitimate.
Their reasoning as to why Paragraph 2 language is not relevant for UDRP disputes relies on how to properly read and interpret legal documents, an area in which I have no expertise. As best as I understand it, Berryhill, Keating and Muscovitch rely on several arguments. First, the UDRP exists as a function of contract (between the registrant and registrar). The UDRP dispute procedures are incorporated within that contract. Paragraph 2 was taken from the original registration agreement. It consists of a series of representations and warranties by the registrant to the registrar, the only parties to the agreement. This is obvious by the use of the pronouns “you” and “we”. A third-party trademark holder has standing only with respect to the UDRP dispute procedures outlined in Paragraph 4.
Second, the UDRP itself is limited to the terms of the Policy. Paragraph 4 of the Policy specifies the limits of the resolution mechanism and details the three criteria that must be proved for a complainant to prevail in a UDRP. Indeed, as Berryhill points out, paragraph 4 starts with “This Paragraph sets forth the type of disputes for which you are required to submit to a mandatory administrative proceeding. “ In other words, the dispute mechanism is limited to paragraph 4. Paragraph 4 does not incorporate Paragraph 2. Further, Paragraph 4 uses the term bad faith registration. It does not reference “renew or maintain.”
The history of the UDRP drafting process supports a conclusion that paragraph 2, itself a late addition to the document and a sloppy cut-and-paste from the registration agreement cannot be used to drastically expand the mechanism carefully set out in Paragraph 4 so as to render “renew and maintain” equal to “register”.
Berryhill also cites the First WIPO Report on the UDRP that makes clear that “the scope of the administrative procedure [is] limited to the abusive registration of domain names.” Berryhill’s analysis demonstrates that the push to rely on Paragraph 2 warranty language cannot be justified.
Both Keating and Berryhill also point out some of the problems in trying to incorporate a reference to “renew and maintain”. For example, domain names are now renewable for up to 10 years. How does a panel know when the last renewal took place for the purposes of applying this new standard? Even more problematic is the reference to “maintain”. As both point out, a registration is by definition maintained throughout its registration period. As such, incorporating “maintain” effectively renders both registration and renewal meaningless and results in “use” becoming the sole and continuing standard for measuring bad faith.
Keating takes it even one step further. He argues that even if one were to accept that Paragraph 2 creates a standard, the very language is limited to the actual knowledge of the registrant. Indeed the language is “to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party.” The words measure actual knowledge without a duty to investigate. The problem, Keating notes, is that most panelists already tend to ignore this by favoring an obligation to investigate. According to Keating, the entire Paragraph 2 contingent are thus opening the door to a strict liability approach in which all trademarks are elevated to the level of being famous and you and I are obligated to dig them up to avoid the appearance of conflict.
It is still too early to see how this split view on Paragraph 2 will play out. Perhaps the Paragraph 2 approach will become the consensus view, where all panelists will feel an obligation to follow it. If so, domains held for investment will be at high risk of loss and it may be too risky to continue parking investment grade domains. It also would mean that domainers must undertake an investigation every time a domain is renewed so as to ensure no conflict exists with a trademark.
Perhaps like the Octagen/Mummygold approach, the attempt to rely on language from Paragraph 2 will eventually be decisively rejected. But in the meantime, with leading panelists including Bernstein and Lyon advocating for it, we can expect to see many decisions taking the Paragraph 2 approach, and many domains being lost despite having been registered in good faith.
In the succeeding months, as the Paragraph 2 approach becomes better known, we are almost certain to see trademark holders filing complaints in attempt to seize valuable domains that pre-date their existence. A juicy target for these complaints will be domains that are parked on landers that are auto-optimized, as the optimization algorithm can focus the links on the trademarked use. A panel relying on the warranty language from Paragraph 2 could find a domain owner responsible for these advertising links that appear on a parked page even though the links are automatically supplied by Google and the domain owner has no knowledge of them. The panel can determine that the latest renewal while the domain was being parked was in bad faith and order the transfer of the domain. The domain owner will then find that a domain that she registered in good faith many years before the trademark owner came into existence has been lost in a UDRP dispute.
What is even worse is the ability of panelists to find bad faith based on Paragraph 4(b)(iv) (intentionally attracting for commercial gain ) which does not require actual conflicting links. Any commercial use that is not purely descriptive can be considered a bad faith effort to trade on the goodwill belonging to the trademark holder under this standard. This gives panels a rationale to find bad faith for a broad range of uses, and makes it even easier to separate a domain owner from her domain.
A major practical problem with the divergent views on the Paragraph 2 approach is the uncertainty it introduces into administration of the policy. As domain investors, we know all to well the lack of consistency among UDRP panelists in how they approach bad faith use. Some panels have found that earning revenue from PPC links is a legitimate use for a domain, others have found that evidence of bad faith. Some panels have found that the business of selling descriptive domains – whether or not there are trademarks on the descriptive word on which they are based – is a legitimate use for a domain, some panels have found that to be bad faith. Some panels have found that not developing a domain after owning it for many years no cause for concern, others find that evidence of bad faith. As there is no consistent standard for what is consider use in bad faith, domain investors rely on the requirement that before a domain can be ordered to be transferred that registration in bad faith must be proven. This is the pillar on which we rest our defense in a UDRP response in the absence of a consistent standard for bad faith use. The paragraph 2 approach knocks this pillar out from under us. When registration in good faith no longer is a sufficient defense, then the UDRP truly becomes a crapshoot. The decisive issue of what constitutes bad faith varies from panelist to panelist.
While there is disagreement about whether the incorporation of “renew and maintain” language from Paragraph 2 belongs in the UDRP dispute mechanism laid out in Paragraph 4, there can be no disagreement that introducing this radical approach into the UDRP destroys any consistency of application of the UDRP. The disregard that Bernstein, Lyon and others show for the principle and the value of consistency in application of the UDRP is shocking to me. They must be aware that adopting this approach is like throwing a bomb into the shaky edifice of UDRP precedent and the 14 year effort to develop a consensus approach to UDRP interpretation, as this approach blows that whole effort into smithereens.
What I have seen is that faced with perceived shortcomings in the Policy, it becomes very attractive to certain panelists to experiment with ways of expanding the Policy beyond the limited scope that was agreed to after extensive negotiations during the creation of the Policy. These panelists are no longer content with implementing the policy. They want to make policy. Because they are entrusted and empowered to implement the policy according to their own interpretation, without any oversight, they are free to creatively “interpret” the Policy in ways that result in profound changes to the Policy.
It is likely not a coincidence that many of these activist panelists are concurrently trademark lawyers. They have spent their careers aggressively advocating on behalf of trademark holders. When aggressive advocates are then placed in the role of neutrals, it is no surprise that they don’t exercise the restraint and the judicial temperament that is required for the role of panelist. They keep their advocate hats on.
These panelists will claim that they are honoring the spirit of the Policy and furthering its aim of combating cybersquatting. Instead, they are usurping the policy making function that should develop from deliberations within ICANN and among its many stakeholders.
As we in the domain investment industry are shut out from the process and from the power to make change, we are left with the art of persuasion. Having seen Berryhill, Keukelaar, Keating, and Muscovitch in action last week, they are very actively engaged in this uphill struggle.
I am grateful to John Berryhill, MJ Keukelaar, Paul Keating, and Zak Muscovitch for generously sharing their expertise and feedback, and for fighting for the rights of domain registrants even when we aren’t aware that they are watching our backs.
Revised November 8th
NAF panelist orders transfer of Uniprotein.com, finds that ‘uniprotein’ is confusingly similar to a design mark on ‘universal’
A NAF panelist orders the transfer of uniprotein.com after making a dubious finding that the domain ‘uniprotein.com’ is confusingly similar to a design mark for ‘universal’ that incorporates an image of a bodybuilder flexing his muscles.
Universal Nutrition sells body building supplies with a specialty in protein supplements.
‘Universal’ is of course a generic term with a wide range of commercial uses. A search of the USPTO for live registrations for ‘universal’ produces over 1,000 results.
My understanding is that a design mark protects the design, not the related word. If a company wants to protect a word, then they should apply for a word mark.
The panelist’s analysis is as follows:
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a re-view of the record that the <uniprotein.com> domain name is, as alleged in the Complaint, an amalgamation of a common abbreviation of Complainant’s UNIVERSAL trademark and the term “protein,” which describes an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” The combination is confusingly similar to Complainant’s mark. See Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003): (“Notwith-standing the analysis by Respondent, ‘modprops’ is a contraction or shorthand for ‘Modern Props.’ ‘Mod’ connotes ‘modern’ regardless of any other dictionary meanings, so the names are substantially similar in meaning.”); see also Micro-soft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the do-main name <ms-office-2000.com> to be confusingly similar to the MICROSOFT mark even though the mark was abbreviated in the domain name).
The panelist’s analysis is that ‘uniprotein’ is similar to ‘universal’ in the same way that ‘modprops’ is similar to ‘modern props’. The difference of course is that ‘modern props’ is a combination word that contains the second term in the phrase, while ‘universal’ is simply one word.
It is a stretch to say that anyone seeing the domain ‘uniprotein’ would think of the word ‘universal’. It is a further stretch to say that even if a consumer found ‘uniprotein’ confusingly similar to ‘universal’ that it would be confused with the Complainant’s use of ‘universal’ rather than the thousand other commercial uses. It is yet a further stretch to make that finding because the Respondent is based in India and is targeting the Indian market, while the Complainant is a U.S. company. And it is still yet a further stretch to find that the domain ‘uniprotein.com’ which has no design elements is confusingly similar to a design mark whose most prominent feature is a bodybuilder.
These are the contortions that the NAF panelist had to go through to meet the first ‘confusingly’ similar test of the UDRP.
To meet the second test that the domain owner was not making a legitimate use of the domain, the panelist makes the dubious finding that the Respondent’s use of the uniprotein.com domain for an active web site that sells a wide range of protein supplements is not a legitimate use.
The respondent is based in India, and nothing in the decision would indicate that the Complainant has any trademark rights in India that would prevent the Respondent from selling protein supplements under the uniprotein.com name.
Ironically, the panelist uses as evidence against the Respondent that its name in the Whois – “Universal Nutrition” – is not the same as its domain name:
Moreover, the pertinent WHOIS record identifies the registrant of the domain name only as “Universal Nutrition,” which is not the same as the domain name.
The panelist is apparently oblivious to the fact that he just made a finding that ‘uniprotein’ is confusingly similar to a design mark on ‘universal’ so you’d think he would find ‘Universal Nutrition’ to be sufficiently similar to ‘uniprotein.com’ that he wouldn’t penalize the Respondent for owning uniprotein.com under the name of a company called ‘Universal Nutrition’.
The Respondent didn’t help themselves by failing to respond to the Complaint. My sense is that Panelists often treat a ‘no response’ as giving them free reign to order a domain transfer for the flimsiest of reasons.
But the ends shouldn’t justify the means, especially if the means are to trample over the requirements of the UDRP and the principles of trademark law.
That is a more difficult question than Complainant makes it out to be. Complainant has produced evidence sufficient (at least in the absence of contrary proof) to show common law rights in its corporate name, Thompson Island Outward Bound Education Center. That of course, is not the same as rights in Thompson Island standing alone. Thompson Island is a geographic location and by itself is not indicative of any goods or services provided by Complainant or anyone else.
Complainant argues that its prior use of the disputed domain name – stripped of its gTLD, Thompson Island standing alone – gives it rights in the phrase. The Panel agrees, though upon slightly different grounds than those offered by Complainant. First and most importantly, the audience likely to be misled should Respondent make a different use of the disputed domain name has for almost a decade identified “Thompson Island” with Complainant; that is the means Internet users seeking information about Complainant have accessed it on their computers. Second, Thompson Island may be said to be the dominant feature of Complainant’s full name. Its use without the other four words may – and on Complainant’s evidence is found to be – acceptable ellipsis. Complainant has met its burden of proof under this Policy head.
In this case, the well-respected panelist acknowledges that it is quite a stretch to find that “Thompson Island” is confusingly similar to “Thompson Island Outward Bound Education Center”, but he makes the stretch nonetheless, perhaps persuaded that the end – returning a domain claimed as stolen – is worth stretching the provisions of the UDRP to the breaking point and perhaps beyond.
In the fobus.com decision, an NAF panelist permitted the Complainant to seize the fobus.com domain even in the absence of any specific evidence that the domain was registered in bad faith.
The respondent didn’t help himself by failing to respond to the Complaint, but even relying on and accepting all the arguments presented in the Complaint, as they are outlined in the decision, there was no evidence of bad faith registration that could have justified transferring the domain.
Relevant facts cited in the decision-
1. Fobus.com was registered by a South Korean in April 2002
2. Complainant Fobus International is an (Israeli) maker of handgun holsters.
3. Fobus Intl relied on their US trademark which as the panelist notes was only a design mark and was not issued until October of 2002.
4. Recently fobus.com went to a parked page that showed links to competitors of Fobus International.
If the panelist had access to the US Trademark, which it would seem that he did since it would have been an exhibit to the complaint, then he would have seen that-
1. The trademark was not published for opposition until July 2002.
2. The trademark application states that ‘The name “Fobus” is the name of the small moon of Mars. The origin of the name is from Greek mythology.’
(The more common English spelling is “Phobus”, so “Fobus” is a variant spelling.)
The key question here is whether fobus.com was registered in bad faith.
Based on the above facts there is no evidence at all that fobus.com was registered in bad faith.
“Fobus” is a generic, variant spelling of a moon of Jupiter and a character from Greek mythology. The domain was registered before the US trademark was issued or even published for opposition. The registrant is South Korean so there is no expectation that he would have been aware of an Israeli maker of handgun holsters.
In other words, even in the absence of a response, the Complaint contained no evidence that the Respondent registered fobus.com in bad faith. The panelist should have denied the complaint.
So how did the panelist conclude that fobus.com had been registered in bad faith? He misapplied a section of the UDRP, 4b(iv), that states that using the domain to create a likelihood of confusion for commercial gain can be an example of registration and use in bad faith. Since the fobus.com was parked with links to competitors, the panelist concludes that the ‘registered and is being used in bad faith’ test had been met.
To be fair, this section of the UDRP discussing “use that creates a likelihood of confusion” is itself very confusing. It can be interpreted in various ways. One of those ways boils down to ‘evidence of bad faith use is sufficient to find evidence of bad faith registration‘.
This interpretation means that the ‘registration in bad faith’ requirement is superfluous, as bad faith use alone would also imply bad faith registration. For this reason, among others, the interpretation that bad faith registration can be found based on bad faith use alone has been rejected by a majority of panelists.
The proper interpretation of this poorly written section of the UDRP has been the focus of heated debate among panelists. It is likely the most controversial aspect of the UDRP.
The most comprehensive treatment of this issue was in the WIPO simplybusiness.com decision from 2011. A three member panel that included Andrew Christie, the leading advocate of the ‘bad faith use is enough’ interpretation, found by majority decision (with Christie in the minority), that the ‘bad faith use is sufficient’ interpretation is fatally flawed.
The majority’s thorough analysis of the issue goes on for several pages. It shows that the interpretation that bad faith use can be sufficient evidence to meet the bad faith registration test doesn’t stand up to a careful analysis. Andrew Allemann has a good write-up of the controversy here.
Christie’s misinterpretation of the UDRP has created untold mischief, and has led to attorney John Berryhill to force him to face the consequences of his meddling with the policy.
The panelist in fobus.com falls short in a few different ways. He relies on a discredited interpretation of the UDRP to justify the transfer of fobus.com in the absence of any specific evidence that the domain was registered in bad faith.
Although the panelist was not obliged to do so, it would have demonstrated a conscientious concern for his duties if he had taken two minutes to go to Archive.org to check how fobus.com was used back in 2002 rather than simply assume that the domain was registered 11 years before for the purpose of several years later displaying a parked page with advertising links. He would have found that fobus.com was used for a travel reservation web site.
To his credit, the panelist recognized that the long delay in bringing the complaint is cause for concern-
Panel notes with concern that there is no explanation in Complaint as to why these Administrative Proceedings were brought almost 13 (sic) years after registration of the domain name.
Although it appears more likely than not to Panel that the original registration of the domain name was made in the knowledge of Complainant’s trademark and business, the delay in bringing these proceeding is of such a magnitude that it should require explanation.
In the absence of a Response and in light of relatively unequivocal evidence of domain name abuse, Panel finds that there is insufficient reason to apply principles of laches but cautions Complainant to be more alert to that possibility in the future.
Yet this 11 year delay (not 13 year) should have caused the Panelist to act with more restraint before ordering the transfer of fobus.com. Note the use of the phrase ‘although it appears more likely than not’. The standard for a UDRP is supposed to be ‘clear cut cybersquatting’. Speculating on the respondent’s state of mind 11 years earlier based simply on recent use of the disputed domain as a parked page and then applying a standard of ‘more likely than not’ is a much lower standard than ‘clear cut cybersquatting’.
The fobus.com case is one more example of how the criteria in the UDRP are being watered down so much that the UDRP can now easily be misapplied to steal domains even in the absence of any evidence of bad faith registration.
The UDRP complaint against MountainRovers.com has the dubious distinction of being the 150th case of Reverse Domain Name Hijacking identified so far.
Five thoughts on this milestone-
1. The problem of RDNH is getting worse. The UDRP is used more frequently than ever to attempt to steal domain names from their rightful owners.
The early years of the UDRP saw numerous RDNH findings as there was little precedent to go by and many people were unclear about the limitations of the UDRP. Then came five years of single digit RDNH findings between 2003 and 2007. From 2008 on there were double digit RDNH cases each year and 2013 is on track to set the all-time record.
After 12 years of the UDRP we would hope that it is now clear that the UDRP should only for clear cut cases of cybersquatting. We might be surprised that RDNH cases are on the increase. The explanation may be that activist panelists keep meddling with the UDRP criteria in an effort to make it easier for Complainants to seize domains through the UDRP. This encourages Complainants to file frivolous cases by appealing to the misguided logic of the rogue panelists. We’re now seeing a surge in UDRP complaints filed even though the challenged domains were registered well before the Complainant had any trademark rights to a similar term based on a theory held by some panelists that the UDRP no longer requires that a domain must be registered in bad faith in order for a panelist to order the transfer of the domain.
The number of RDNH cases by year shows the trend:
Year # of RDNH cases
YTD 2013 14
2. Some people might be tempted to say “150 cases over 13 years – no big deal!” The big deal is that a finding of RDNH recognizes an attempt at domain theft. These are companies that are trying to steal domains from their rightful owners. It is not much different than a thief breaking into someone’s house in order to steal valuable property.
Cybersquatting is parasitic in that it attempts to divert some of the value created by the trademark holder – but it doesn’t steal property in the possession of the trademark holder. 404 parked pages practiced by the like of Verizon and other ISPs also divert value created by trademark holders for the benefit of Verizon and the other ISPs who offer 404 parked pages. Parked pages on inactive domains practiced by the like of GoDaddy and other registrars also attempts to profit from misdirected traffic intended for trademark owners. Google directly profits from searches for trademarked terms by selling advertising to competitors of the trademark holder. All these are considered legitimate business practices. Yet registering a domain to monetize traffic intended for a trademark holder is treated qualitatively differently and is demonized while similar practices are smiled upon.
The procedures to stop cybersquatting have given rise to a method of domain theft, that when prevented and identified, is known as Reverse Domain Name Hijacking.
3. Panelists love to give the benefit of the doubt to Reverse Domain Name Hijackers, or refuse to make an RDNH finding even in obvious cases. DomainNameWire and TheDomains, among other blogs, are full of posts about UDRP cases that are blatant examples of Reverse Domain Name Hijacking where the panelists refused to make that finding, or any finding about RDNH, even when the Respondent explicitly made a strong case for RDNH. Panelists also come up with ingenious excuses for not finding RDNH when it is deserved, such as the Complainant was too ignorant, too foolish, too naive, etc. to have the bad faith required for a RDNH finding.
I have yet to see a decision in which a Panel refused to order the transfer of a domain with the excuse that the domain owner was too ignorant, too foolish or too naive to realize that what he/she was doing was wrong.
4. The true number of RDNH cases is probably at least double the 150 identified as such for the reasons given above. For every case where RDNH was found, there is one or more nearly identical cases where RDNH was not found.
I’ve read a lot of UDRP decisions. In case after case, the Complainant is going after a domain to which it knows it has no rights, either because the domain was registered before the Complainant had any rights to a similar trademark, or because the Complainant tried to buy the domain and is now using the UDRP as a Plan “B”, or because the domain owner clearly has a legitimate use for the domain, or because there is no evidence at all that the domain owner was even aware of the trademark holder. Certain panels have found that any of these reasons are grounds for a RDNH finding. Yet in the cases I’ve read, only a small fraction of the time does the panel make a finding of RDNH when the circumstances justify it.
5. Extremely valuable domains are often the target of RDNH cases. Completely worthless domains are usually the target of UDRP complaints. Several million dollar domains have been the target of RDNH attempted theft - WallStreet.com, Mexico.com, NewZealand.com and DW.com are all arguable worth over a million dollars. Many other highly valuable generic domains have been the target of RDNH – aroma.com, mess.com, ode.com, windsor.com, sfm.com, prom.com, kiwi.com, stmoritz.com, decal.com, fcc.com, etc. etc.
On the other hand, the list of domains ordered transferred through UDRP decisions is usually filled with domains that aren’t even worth the registration fee. TheDomains.com recently blogged about 182 .org domains that target Hermes and 165 domains that targeted Gucci. The cases pad the stats and provide good material for scary press releases from lobbying groups that profit from making cybersquatting into a big bogeyman. Yet these domains have negative economic value for the cybersquatter and cause negligible if any economic harm to the trademark holder.
As a typical example, the last couple of days of WIPO decisions are filled with domains that likely receive no type-in traffic and are never seen by anyone other than the person who registered the domain and the lawyer filing the UDRP. The high fees the lawyer is charging to the trademark holder will protect the trademark owner from a domain that will never cause a greater hit to the trademark holder’s bottom line than the legal fees charged by the attorney.
These irrelevant domains – an assessment based on no research and simply looking at the domain – include:
The UDRP procedures that are primarily being used to protect trademark holders from worthless domains that cause no economic harm are increasingly being abused to put in jeopardy very valuable generic domains.
It can be frustrating reading UDRP decisions where there is a difference of opinion among the panelists if one wants to know what each of the panelists believes. The decisions often refuse to name names. The decision will say that a majority held one view, and that a minority held a different view. But the decision won’t say which panelists held which views.
Why does this matter? Because when a respondent or complainant selects its candidates for a three-member panel it is important to know each panelist’s views on the issues that are raised in the instant UDRP. When UDRP decisions fail to name names, readers of the decision know that there was a difference of opinion but they don’t know which panelists held which position. This deprives the reader of valuable information. The UDRP empowers each party to select candidates for a three-member panel so why do panelists in writing their decisions make it harder to fulfill that function by making the views of its members anonymous.
Is it to create the illusion that the UDRP is more uniform than it is? Do the panelists wish to pretend that their differences are minor and only limited to that particular case, so that it doesn’t matter for any future cases which panelist held which view? Unfortunately the reality is that the UDRP is anything but uniform and the outcome of many cases depends entirely on which panelists are selected for the panel. That is why having as much clarity as possible as to the panelists’ views is important.
In the recently decided UDRP on consuela.com, which should have been a slam-dunk Reverse Domain Name Hijacking decision as the Complainant knowingly filed the UDRP despite being well aware that the domain was registered years before the Complainant was formed, the decision notes that “a minority of the Panel is of the view that reverse domain name hijacking should not be found without evidence of some knowing effort to seize someone else’s intellectual property.”
Who is the panelist who held this view? Apparently it is a secret. But it would be very important for a respondent in a future case when tasked with selecting panelists for a case with similar facts to know which of the panelists in the Consuela.com case would not have found RDNH.
In the UDRP on the Marchex domain Swash.com (that resulted in a finding of RDNH), two of the panelists held that Marchex did not have a legitimate interest in the domain. Yet one of the panelists held that Marchex did have a legitimate interest in swash.com.
A minority of the Panel does not agree with the Panel majority’s finding on the Respondent’s “Rights or Legitimate Interests”… The Respondent has been making bona fide commercial use of the disputed domain name for 8 years or more and … in the view of the minority Panelist a legitimate owner of a domain name, which has been making continuous bona fide commercial use of the domain name over such an extensive period has a legitimate interest in respect of it.
This difference in views is critical to any investor in generic domains. I would like to know which of the three panelists found that Marchex had a legitimate interest in swash.com, as I would be inclined to select that panelist for any future disputes with similar facts. But once again, we are left to guess because the identity of the mystery minority panelist is not revealed.
In CarnivalCasino.com, “A minority of the Panel believes that, in the context of this proceeding, Respondent placed Complainant’s trademark rights (at least in the U.S.) in sufficient dispute. ” Unfortunately once again the decision does not disclose which one of the panelists held this belief.
This habit of refusing to identity which panelists hold particular views is found in case after case. Hiding behind a cloak of anonymity is bad jurisprudence and adds to the unpredictability of the UDRP process.
Selecting a panelist shouldn’t be a game of three-card monte. The decisions should offer transparency when there are differing views as to which panelists hold which views.
So to the panelists who are writing these decisions – stop being coy and start naming names.
Domain attorney John Berryhill thinks strategically. When a completely frivolous, seven-sentence complaint was filed on Frank Schilling’s digilove.com domain, Berryhill saw an opportunity. He used his response to provide a lesson to the panelists on the negative consequences of unilaterally making changes to the UDRP.
Berryhill wanted to enroll one particular student – Andrew Christie. Christie is notorious for his attempts to rewrite the UDRP. He has ordered the transfer of domains that were registered well before the Complainant had any trademark rights – in other words, in circumstances where it was impossible that the domain was registered in bad faith.
The UDRP requires that three conditions be met before a panel can order the transfer of a domain name away from the domain registrant. One of those conditions is that the domain owner must be found to have registered AND used the domain in bad faith to target the trademark holder that brought the complaint. But Christie differs from nearly all of his fellow panelists in reading the UDRP to say that it doesn’t require that the domain be registered in bad faith as a condition for transfer, but rather that bad faith registration is simply one of many possible indications of bad faith. Under Christie’s interpretation of the UDRP, a domain owner can register a domain name before the Complainant company even existed and then later lose the domain based on how the domain was used.
Christie would usually be the last panelist that an attorney representing a domain owner would select as his or her choice for a three-member panel. Christie has issued many decisions to transfer domains away from domain owners in circumstances that strike me as being clearly cases where there was no evidence at all of bad faith.
Christie awarded the domain parvi.org domain to the City of Paris despite acknowledging that the domain was likely registered in good faith and despite uncontested evidence that the domain had been legitimately used to distribute custom software. Christie also attempted to transfer the 7s.com domain but was overruled by the other panelists on the three member panel. Andrew Allemann of DNW.com awarded Christie a 2009 Domain Dunce Award for Christie’s habit of citing his own decisions as if they were independent support for his radical reinterpretation of the UDRP.
Berryhill pulled no punches in saying what he thought of Christie – and in particular Christie’s knowledge of Latin – in a comment on Allemann’s blog post-
So, on top of being a liar, Mr. Christie is also illiterate.
Yet fast forward three and a half years later, and Berryhill is picking Christie to be his #1 preferred panelist to decide the fate of a domain name owned by his most important client, Frank Schilling’s Name Administration. A negative decision would brand NameAdministration as a repeat cybersquatter and could open up its portfolio of hundreds of thousands of domains to an onslaught of similar complaints.
Has Berryhill gone crazy? No, Berryhill is crazy smart.
Berryhill wants Christie to face the consequences of his meddling with the UDRP. Like the sorcerer’s apprentice, Christie is meddling with powerful forces and risks bringing on a disaster. Berryhill holds Christie’s attempts to weaken the protections afforded domain owners under the UDRP partially responsible for an upsurge in frivolous complaints . Many of these complaints are filed by complainants whose trademark rights post-date the registration of the disputed domain by several years. These complaints should never have been filed, and they place an unreasonable burden on the domain owner as the domain owner is forced to spend time, money and effort responding to these frivolous complaints. Yet Christie’s willingness to order domain transfers even in cases where it is impossible that the disputed domain was registered in bad faith gives hope to these Complainants and encourages them to take a ticket in the UDRP lottery in the hopes of winning a domain that they aren’t legally entitled to.
So Berryhill is enrolling Christie in his class on the UDRP by picking him to hear these “utter piece of crap” cases. It is not often that one can force a panelist to face the consequences of his misguided reasoning, and Berryhill is taking full advantage of the opportunity.
As Christie read Berryhill’s response, he would have come across the following footnote, written especially for him:
A complete database of all RDNH findings under the UDRP has been assembled at RDNH.com. The listings are sortable by date, and the Panel is invited to verify this temporal trend, owing in part to a free-for-all atmosphere engendered by relatively recent, and minority held, “re-interpretation” of the UDRP by wellintended, capable and thoughtful panelists, whose carefully-crafted limitations of such re-interpretations are so much pearls before swine in the hands of UDRP complainants who have apparently gotten the idea that longstanding senior registration and bona fide use of a domain name is no bar to a cursorily-stated junior claim. By opening the door a crack to certain “edge cases” these panelists have inadvertently opened a floodgate of meritless claims such as this one.
In language that is much more diplomatic than Berryhill’s comment above, Berryhill is making the point that trying to find clever ways around the clear wording of the UDRP can lead to frivolous complaints. It’s a good lesson. Perhaps Christie is learning it, as he, along with the other two panelists, determined that the digilove.com complaint was an abuse of the UDRP and made a finding of Reverse Domain Name Hijacking. It remains to be seen whether Christie will stop his one-man crusade to weaken the protections given to domain owners under the UDRP.
IP Pro reports that IG.com sold to a UK based financial services company. The seller was a Brazilian search portal.
The article speculates that the price was the second highest ever paid for a two-letter dot-com, presumably below the $8.5 million reportedly paid by Facebook for fb.com.
Now is your chance to acquire Cleanest.com, a 16+ year-old, premium domain that has never been publicly offered for sale before (as far as I know). There is no reserve. All proceeds go to benefit the ICA.
Cleanest.com is the first lot in the TRAFFIC auction taking place this Wednesday in Las Vegas.
If you aren’t at TRAFFIC, there will not be online bidding, but you can make bids by phone or text.
According to the conference website:
“We will have phone, text and prebidding. Contact: Ray firstname.lastname@example.org to make arrangements”
Bid to win a high quality domain and to help the ICA in the process.