Reverse domain name hijacking: toothless tiger or flag of disingenuity?

International
Allegations of reverse domain name hijacking under the Uniform Domain Name Dispute Resolution Policy (UDRP) are not uncommon. A review of World Intellectual Property Organisation (WIPO) domain name dispute resolution decisions over the approximately three-month period since the beginning of June 2011 reveals respondents alleging reverse domain name hijacking in 22 cases and 13 panels denying complaints, of which five resulted in a finding of reverse domain name hijacking. It is apparent from the number of respondents alleging reverse domain name hijacking unsuccessfully that there remains considerable confusion as to when and why it should be alleged in a UDRP complaint.  

Reverse domain name hijacking is conceived under the UDRP Rules as a means of censure of complainants who bring complaints in bad faith in an attempt to deprive a domain name owner of their domain name. Effectively, it is intended to redress the balance where complainants are trying to bully respondents into handing over a domain name and gave no thought as to whether their claim had merit under each of the three key elements of the UDRP. It should not be alleged just because the respondent perceives the claim to be unfair, or decides to throw it into the mix on a 'blunderbuss' approach to raising a defence.   

In practice, panels have generally made a finding of reverse domain name hijacking where it was clear that the complainant knew at the time of filing that it could not prove one of the essential elements of the UDRP, or where there was an apparent attempt to mislead the panel. The high water mark of reverse domain name hijacking findings is demonstrated in the recent case of IUNO Advokatpartnerselskab v Croom (Case D2011-0806). 

The complainant, in this case a law firm, claimed that the respondent, a domain name dealer who had registered the domain name 'iuno.com' some 11 years beforehand for the purpose of re-sale, had registered and used it in bad faith. Having dismissed the complaint, the panel went on to say in relation to the respondent’s claim of reverse domain name hijacking that someone in the complainant’s shoes ought to have been aware:
  • of the fundamental defects in the complaint;
  • that to launch in this form would put the respondent to unnecessary and irrecoverable expense;
  • that false allegations of bad faith necessarily give rise to concern and distress on the part of the person falsely accused; and
  • that, if the complainant had succeeded, the respondent would have been wrongfully deprived of the domain name.
The panel noted that whether or not the complainant’s motives were abusive, the complaint was fundamentally flawed, the law firm complainant “should have known better” and, in sum, the complaint constituted an abuse of procedure. The panel continued as follows:

In so finding, the panel recognises that, in many cases, a complainant cannot know what the respondent’s true intentions were at the time of registration of the domain name in issue and that, to an extent, allegations of bad faith may be somewhat speculative in those cases.”

This is an important qualification reflecting the reality that complainants cannot always be certain of their case and that a decision to proceed will often involve a weighing up of factors under each element on the basis that the panel will make appropriate inferences in the complainant’s favour. To this extent, many cases will necessarily be speculative. However, a complainant cannot expect to get away with making unwarranted claims which have obvious and fatal flaws on the merits. Where a case amounts to little more than a brazen domain name 'land grab', a finding of reverse domain name hijacking can, and should, be justified. 

Some commentators have suggested that a finding of reverse domain name hijacking means little more than the panel slapping a complainant’s hand and saying “bad boy”. Others have suggested that reverse domain name hijacking procedures should be given more teeth - for example, by imposing a costs penalty on the complainant or, as under the Nominet Dispute Resolution Service policy in the United Kingdom, preventing a complainant from using the procedure for a specified time once several findings of reverse domain name hijacking have been made against it.

Whether or not these proposals are administratively practical in the context of the UDRP, a repeat finding of reverse domain name hijacking does indeed serve a useful purpose. Firstly, it indicates to future parties and panellists alike that a complainant has a history of making unjustified claims and that, although each complaint must be considered individually, the credibility of future complaints should be reviewed very carefully. Secondly, to the extent that the internet public perceives that a finding of reverse domain name hijacking has a negative connotation as being an abuse of the UDRP, it helps deter unmeritorious claims. As long as panels continue to assess allegations judiciously (as recent WIPO cases would suggest), reverse domain name hijacking will help dissuade complainants from making unmeritorious claims while also functioning as an effective flag of disingenuity.
 
Alistair Payne, Matheson Ormsby Prentice, Dublin

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