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If You’re Stupid, Domain Hijacking Clause Doesn’t Apply to You

Apparently ignorant people can’t be found guilty of reverse domain name hijacking.

One of the more controversial aspects of Uniform domain-name Dispute Resolution Policy (UDRP) is Reverse Domain Name Hijacking (RNDH). A domain owner can ask the UDRP panel to find that the complainant filed a case in bad faith or harassing manner, and the panel can then find that the complainant was trying to reverse hijack the domain name. (Technically, the respondent doesn’t have to ask for a finding of RDNH. All panels should consider it.)

The only penalty against the complainant is that a finding of RDNH can be used against them in future cases. And I cam embarrass the company on Domain Name Wire.

To understand one panelist’s analysis of RDNH, see this guest article from Hon. Neil Brown.

Having read hundreds of UDRP decisions, one thing is clear: if the panelist thinks you’re stupid, ignorant, or not smart enough to hire an attorney to file your case, they usually won’t find RDNH against you.

One recent example is Imagem.com, a domain name owned by NameMedia. The complainant didn’t exist until several years after the domain name was registered. By definition, that means the domain name wasn’t registered in bad faith because NameMedia couldn’t have known about a non-existent entity. That, in itself, should be grounds for na RDNH finding.

But, even though the complainant CP Masters B.V. was represented by counsel, the panelist decided that CP Masters and its attorneys at Beck Greener just had no idea what it was doing when filing its case:

On balance, the Panel does not consider that the evidence shows that the Complainant intended to proceed in bad faith. The very obviousness of the gap in the Complainant’s case suggests more strongly that the Complainant seriously misunderstood what was required for a finding in paragraph 4(a)(iii) of the Policy, rather than that the Complaint was brought dishonestly. The failure of the Respondent in some past cases under the Policy may also have encouraged the Complainant to believe it might succeed on the different facts of this case.

Read that a couple times, especially the second sentence. Basically panelist James A. Barker is saying that CP Masters’ case was so weak, that surely it just didn’t know what it was doing when it wrote its complaint. And, since NameMedia has lost cases in the past, perhaps CP Masters thought it had a chance to win.

If only you could claim ignorance of the rules in the U.S. justice system.


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