A recent decision for the domain name JUSTBELIEVE.COM recently caught our eye. Not only due to the appalling quality of the complaint which consisted of three paragraphs, none of which addressed the issue of legitimate rights and interest but rather what was more interesting was the equally appalling decision not to find Reverse Domain Name Hijacking.
Mark McCormick, the serving Panellist in these proceedings takes centre stage in a decision that should have exposed the Complainant’s “bad faith” in bringing this complaint. In his discussion and findings the Panel held:
“Respondent asserts Complainant is guilty of reverse domain name hijacking. That contention requires that Respondent prove Complainant knew of Respondent’s prior superior rights in the domain name accompanied by evidence of harassment or similar conduct by Complainant…Because Complainants own evidence contains evidence of Respondent’s prior right in the JUST BELIEVE mark, Complainant made no effort to conceal it, and the record contains no evidence of harassment or similar conduct by Complainant. Respondent has failed to prove his claim of reverse domain name hijacking.”
When a Complainant brings forth a case under the UDRP they are making certain assertions that cannot be taken back; namely that the Respondent registered the disputed domain name in bad faith or with malicious intent for the purpose of causing significant detriment to the legitimate owner of a trademark. Without proof of such, the claim is baseless, instead causing significant detriment to the Respondent who not only has to spend money and time defending these baseless arguments but the potential damage caused simply by being involved in UDRP proceedings. Once Respondent receives the “cybersquatter” stamp, which is so loosely thrown around by Complainant’s today it can be very difficult, if not impossible to remove, even in situations where the Respondent is 10-1 in cases DENIED compared to cases TRANSFERRED.
Complainants and their legal counsel usually bring these cases forward with little or no regard for the potential damage this can cause for legitimate business owners and therefore ignorance (which the Panel’s decision seems to be based on) should not be a defence for bringing such a baseless complaint forward.
Why do most Complainant’s hire legal counsel? Because they know the policy and can advise them accordingly. Therefore should experienced legal counsel’s ignorance of a policy that has been in existence for more than a decade really be an excuse for such a frivolous filing?
Even if Complainant and legal counsel are unfamiliar with the UDRP, the clear language of the policy and the Rules themselves leaves no confusion as to the Complainant’s burden.