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 UDRP Panel Issues Catch-22 Ruling On Reverse Domain Hi-Jacking
posted by michael on Wednesday January 30 2002, @11:52AM
Anonymous writes "A Uniform Domain Dispute Resolution Policy (UDRP) panel made a curious little aside in issuing this decision in favor of a domain name registrant: according to NAF Case No. FA0111000102179 there is never a reason for a UDRP panel to consider whether a complaint was brought in bad faith."
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Under paragraph 15(e) of the UDRP, a panel is to consider whether the complaint was brought in bad faith. In the past, panels have found bad faith complaints, or "reverse domain name hi-jacking" (RDNH) in situations where the good faith or legitimate rights of the domain name registrant should have been so eminently clear to the complainant, that the complaint could not have been sincerely made.
In a dispute over a set of domain names including the generic term waterfrontliving.com, which was being used by the domain name owner for a site relevant to waterfront living, the panel concluded that the complainant had not satisfied a single requirement of the UDRP. On the question of whether the complaint was brought in bad faith, the panel stated:
"Having found in favor of the Respondent, there is no need to address Respondent's claim of reverse domain name hijacking."
This statement begs the question of just when these people think it would be appropriate to consider a Respondent's claim of reverse domain name hijacking. After all, there are only two parties to a UDRP proceeding. If the complainant wins, then obviously the panel concluded the complaint had merit. But this panel believes that if the respondent wins, then there is no need to consider the question.
What is the point in having paragraph 15(e) of the Policy when there is, in this panel's opinion, never a reason to consider it?
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UDRP Panel Issues Catch-22 Ruling On Reverse Domain Hi-Jacking
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The arbitrator is wrong. It should consider reverse domain name hijacking and opine accordingly.
With that said, however, the rule regarding RDNH is lame. The only remedy the UDRP allows is domain name transfer. The respondent can never win damages or other relief. Accordingly, attempted RDNH is irrelevant. The only relevent factor is the respondent's bad faith. Sad but true.
The arbitrator in this case recognizes that fact, and decided to unilaterally re-write the UDRP rule. The arbitrator is wrong. But, so is the UDRP.
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[ Reply to This | Parent
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You talk about sqautters ignorning law. However, UDRP arbitrators, more often than not, ignore law. Now, the panels are citing other arbitration cases, like they are law.
Domain name disputes belong in the court, where they are subject to the due process and real law.
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Now that's a poster kid to use against the UDRP. -g
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ICANN must stop all this nonsense in the name of the UDRP at WIPO and NAF - if they don't WE WILL!
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