In a classic Plan B UDRP, two panelists don’t find RDNH – Domain Name Wire

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One panelist calls it a “clear” case of RDNH, two others decline to find RDNH.

A lot of reverse domain name hijacking decisions have been handed down in UDRP cases this week. Surprisingly, the majority of panelists in a dispute over did not find the filing an abuse of the proceedings, and their reason is even more surprising.

Compañía Logística de Hidrocarburos CLH S.A. filed the case against a domain name investor who acquired in July 2017.

The complainant had been trying to buy the domain since 2015 before the current owner bought it for $32,000. After multiple failed purchase attempts if filed the UDRP.

In the decision, panelists Clive N.A. Trotman and Reyes Campello Estebaranz discussed how the case has many of the hallmarks of RDNH: the complainant tried to buy the domain and filed a UDRP when it couldn’t, and CLH is a common acronym.

But they decided against RDNH, writing “Alternative views as to the legitimacy of speculation in domain name have been debated since the early days of the Policy…”

In other words, because the owner was a domain investor, they didn’t feel it was right to find RDNH.

This isn’t the first time Clive Trotman has made a questionable decision in a UDRP.

Panelist Neil Anthony Brown QC, in a dissent, said this is an obvious case of RDNH:

…In the present case, the Complainant’s case shows that it must have known it could not prove any element in the case other than the nominal requirement that it ‘has’ a trademark. Indeed, this case must be unique in the annals of domain name cases as not only does the Complainant not offer any evidence that the Respondent registered and used the domain name in bad faith but it does not allege it in any understandable way. In fairness to the Complainant, it ‘deems’ it to be so, but deeming it to be so is not evidence and it does not raise any inference or even suspicion that the domain name was registered and used in bad faith. Accordingly, as the Complainant adduced no evidence on that issue, it must have been very clear to the Complainant that it could not prove either prong of the important element of bad faith. Despite that, it alleged bad faith against the Complainant which, in any event, should not be alleged unless there is some reasonable ground for doing so.

Nor, with respect to the equally important element of rights and legitimate interests, was there any evidence offered to show that the Respondent might have done something untoward that would negate its obvious right to register a domain name which, according to the Respondent’s evidence, and as the Complainant could easily have ascertained, a good slice of the international commercial community was also using.

Instead, the Complainant’s case was substantially if not solely that it had a trademark. Even that issue is couched in a manner that does not help the Complainant’s case, either in general or on the specific issue now under consideration, as it seeks to invest that trademark with almost magical powers that it cannot possess. The Complainant’s case was that its trademarks, for it has several of them, “’shall extend to any type of goods, service or activities” and apparently anywhere in the world, including beyond Spain which is clearly where the Complainant has its principle business. For present purposes, that type of allegation is open to the inference that it is being made to harass or intimidate the domain name holder.

In addition, the history of the Complainant’s sustained efforts to buy the domain name shows that it has never believed it had an entitlement to it. It is also clear that after failing to buy the domain name, it turned to Plan B, which was to file the present claim. That approach has rightly been regarded by many panellists as raising a case for a finding of Reverse Domain Name Hijacking, as it shows the Complainant’s allegations were not genuine but were a recent invention.

In the present case, as in all such cases, the Panel has to decide what, in substance, was the intention and motivation of the Complainant in bringing the claim and on all considerations the Complainant must have known that this was a claim that, on the facts known to the Complainant, should never have been brought. The case for finding Reverse Domain name hijacking is therefore made out. Moreover, it is not a borderline case but a clear one.

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