Split panel agrees on condemnation of cyberflying
A World Intellectual Property Organization panel has released an interesting Uniform Domain Name Dispute Resolution Policy (UDRP) decision involving 'gloria.com'. While the panel majority held that the complainant failed to establish an instance of bad-faith registration, both the majority and dissenting opinions came down hard on the 'cyberflying' that was a feature of the case.
'Cyberflying' is the term coined for the practice whereby a respondent to a notice of complaint transfers the contested domain name to a third party or another registrar for the purpose of disrupting proceedings. The result is that when the complainant comes before the panel, the person currently registered for the domain name differs from the one named in the original complaint, thus leaving the panel without the jurisdiction to order a transfer.
Not surprisingly, panels have generally condemned the practice and have held that the change of registration details prior to the commencement of proceedings shall not affect the proceedings at hand. However, the Gloria.com Case highlights the difficulty that complainants still encounter in situations of cyberflying, and the unnecessary time spent by complainants and panels in determining who the correct respondent should be. The panel did not, however, make a finding of bad-faith registration, as the trademark was not well known in the United States.
Cyberflying can occur because of the way disputes are initiated under the UDRP, whereby a complainant sends its complaint to the relevant registrar with a copy having been sent to the respondent first. The date of the proceedings' commencement is deemed to be the date when the provider forwards a copy of the complaint to the respondent after checking the formalities. As a result, there can be a few days' delay between the respondent becoming aware of the complaint and the date the proceedings commence - a window within which cyberflying can occur.
Charles Cho, Mallesons Stephen Jaques, Hong Kong
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