Non Monetary Penalty for Reverse Domain Name Hijacking

In commencing the administrative proceeding, the complainant certifies "that the information contained in th[e] Complaint is to the best of [its] knowledge complete and accurate [and] that th[e] Complaint is not being presented for any improper purpose, such as to harass [the respondent]." Rule 3(b)(xiv) defines "improper purpose" as including harassment. Rule 1 defines RDNH as "using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name." Rule 15(e) authorizes the Panel "to declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding … [i]f after considering the submissions the Panel finds that the complaint was brought in bad faith." Significantly, Rule 15(e) does not define bad faith categorically, but gives two examples of what "bad faith" may be, namely "an attempt at Reverse Domain Name Hijacking" or "brought primarily to harass the domain-name holder." Leaving the definition open parallels the non exclusive examples of paragraphs 4(b) and 4(c) both of which use the phrase "in particular but without limitation." It has been said that a finding of reverse domain name hijacking (RDNH) is discretionary with the Panel and never mandatory. Urban Logic, Inc. v. Urban Logic, Peter Holland, D2009-0862 (WIPO August 17, 2009). This properly suggests an elasticity anchored to the evidentiary facts. Not every complainant who fails to satisfy its burden under the Policy deserves to be sanctioned. Ordinarily, there should be some evidence sufficient to conclusively show or (at least) support an inference of bad faith on the complainant's part – "mere lack of success of the complaint is not itself sufficient for a finding of Reverse Domain Name Hijacking" [WIPO Overview paragraph 4.17] – but the evidentiary demands on the respondent have not been uniform or consistent. Particularly in penumbral cases, complainants are given the benefit of the doubt. However, commencing and maintaining a proceeding in the face of knowledge is evidence of "improper purpose." In Futuris Automotive Interiors (Australia) Pty Ltd v. X9 Interactive LLC, D2011-0596 (WIPO June 20, 2011) – not a penumbral case – evidence marshaled by the Complainant supported a declaration of abusive use of the proceeding and for that reason is a useful template illustrating complainant overreaching. The Panel noted that "[t]he Complainant made two principal assertions regarding bad faith: (i) that the Respondent registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant; and (ii) that the Respondent registered the disputed domain name primarily in order to prevent the Complainant and/or the Complainant's parent company from reflecting the mark FUTURIS in a corresponding domain name." Assertions, however, are not evidence. On the record, Complainant offered no evidence that either "of these assertions had any basis in fact." The Panel continues: On the contrary, the Complainant's own researches as described in the Complaint clearly demonstrate that the Respondent (or its corporate predecessor) began to use the disputed domain name in the context of a business using the term "Futuris" within a short period after registration of the disputed domain name and furthermore that this use continued over a period of many years. RDNH is by definition intensely fact driven and decided on a case-by-case basis. In Futuris Automotive, the Complainant's evidence which exonerated the Respondent should have been a warning bell that it was commencing and maintaining the proceeding for an "improper purpose." It is irrelevant that a legitimate holder of a domain name makes no use of it. "[T]he Policy may not be used to deprive a legitimate registrant of a domain name purely because that registrant has chosen not to use the domain name in conjunction with a website."

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