Proof for Bona Fide Purchaser of Disputed Domain Name For Value

As a general proposition in disputes of title, in order to establish as a matter of law that a party is a bona fide purchaser whose rights are superior to the true owner, that party has the burden of proving that he or she purchased the property for valuable consideration, and that he or she purchased it without knowledge of facts that would lead a reasonably prudent purchaser to make inquiry. The Respondent in POEX Ltd. v. Zoran Stary / WhoIs Privacy Protection Service Inc., D2010-0282 (WIPO June 3, 2010) attempted to demonstrate that it purchased the disputed domain name without notice that it was owned by the Complainant.

The factual circumstances in POEX are complex. “The issue to be decided is whether, on the evidence before the Panel, the Respondent’s version of events is to be believed or not.” The questions include, Was the Respondent truly a purchaser for value without knowledge of the Complainant’s rights? What did the Respondent know about the Complainant’s ownership of the disputed domain name? And, on the issue of credibility, “Has the Respondent dealt with this Complaint openly and honestly or has he attempted to mislead the Panel?”

Conflict in evidence is particularly difficult for a UDRP Panel because the record is limited to that which the parties elect to submit. “While it is not easy to resolve conflicts of evidence in proceedings brought under the Policy, the Panel’s duty is to determine the relevance, materiality and weight of the evidence presented to it.” As the Panel states, the “standard of proof is to evaluate the evidence on the balance of probabilities.” The putative sale of the disputed domain name in this case suggests collusion.

The Complainant in POEX proved that it was the true owner of the disputed domain name and that it employed as agent in connection with the acquisition the purported seller of the disputed domain name. Without contradiction, the evidence established that the Respondent and the person from whom he allegedly acquired the domain name were “friend[s] and business companion[s].” “There is nothing to suggest that [the putative seller] acquired any personal ownership of the disputed domain name and all the evidence points to him wrongfully transferring that name to the Respondent.”

The Panel concluded:

On the preponderance of the evidence, the Panel cannot accept that the Respondent acquired the disputed domain name without notice of the Complainant’s rights in it. If he was a friend and business associate of Mr. van der Burg – which he has not denied – it must be quite likely that he was aware of the purchase of the disputed domain name from Media 365 Inc. Also, by exercising the most rudimentary due diligence, namely accessing that domain name, the Respondent would immediately have been put on notice of its existing use for the Complainant’s website under construction. It just doesn’t ring true that the Respondent then acquired the disputed domain name with clean hands.

Mr. Van der Burg, the co-villain in this story, appears to have violated his fiduciary duty to the Complainant by failing, among other acts (in addition to the apparent collusion), to register the domain in the Complainant’s name. The Respondent’s credibility for due diligence was undermined by the fact that at the time of the putative sale, the domain name resolved to an under construction website that identified it as belonging to the Complainant. “Also to be taken into consideration by the Panel is that … the Respondent ha[d] every opportunity to document genuine arm’s length negotiations with Mr. van der Burg but has failed to.”

Levine Samuel, LLP <researchtheworld.com>
Gerald M. Levine <udrpcommentaries.com>
E-Mail gmlevine@researchtheworld.com

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