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What Does It Take to Get a Reverse Domain Name Hijacking Ruling?

There is no consensus on the standards of proof to be applied in reaching a finding of reverse domain name hijacking. It is defined in Rule 1 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 make a finding

[I]f after considering the submissions the Panel finds that the complaint was brought in bad faith, for example [1] in an attempt at Reverse Domain Name Hijacking or [2] was brought primarily to harass the domain-name holder, [then] the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.

The definition and the Rule which enlarges the definition by noting examples mark out the boundaries of abusive conduct. Noting two examples implies there could be more acts of bad faith.

Some panelists, however, demand certitude of a complainant’s intention impossible to marshal. This is seen in the so-called “malice aforethought” standard and applied in Ammar Jarrous, MD v. Amarillo Cardiovascular & Thoracic Surgery, FA1002001306970 (Nat. Arb. Forum May 5, 2010). It is certitude coupled with the Panel’s refusal to draw inferences that sinks the respondent’s request for RDNH. Other panelists apply an “utterly clear” standard as illustrated in CNRV, Inc. v. Vertical Axis Inc., FA0912001300901 (Nat. Arb. Forum May 3, 2010).

What constitutes RDNH is not writ in stone. The two examples noted have a familial relationship, but even though they are generally merged into a finding of RDNH each act is utterly distinct. The “malice aforethought” standard is all or nothing; there is no shifting to complainant the burden of proof upon respondent’s showing of a prima facie case for RDNH. The “utterly clear” standard returns the burden to the complainant, in essence to rebut an allegation of bad faith. RDNH is warranted under this latter standard upon a finding that the “Complainant must have known it could not demonstrate bad faith registration and use.”

“Clearly,” (as the Panel in Ammar Jarrous has it, citing Smart Design LLC v. Carolyn Hughes, D2000-0993 (WIPO October 18, 2000) “the launching of an unjustifiable Complaint with malice aforethought qualifies.” That is true, but bad faith is also demonstrated if the complainant pursues a complaint in “reckless disregard of the likelihood that the Respondent had rights or legitimate interest in the name,” OnePhone Holding AB v. IndiGO Networks, D2007-1576 (WIPO December 22, 2007). Such reckless disregard was found in Altru Health System v. Altruism Network c/o Doug West, FA0805001195584 (Nat. Arb. Forum July 15, 2008). The Panel held that while at “first sight” it may appear as though the Complainant “had fair reasons to file the Complaint,” on second sight it did not because it made false statements about its trademark which it compounded by making “deliberately false accusations of Respondent’s commercial activities” at the website to which the domain name resolved. What finally outraged the Panel was that

Complainant’s actions were made in an attempt to convince the Panel to decide in Complainant’s favour in spite the fact that the case had obvious flaws. It is this Panel’s opinion that Complainant’s behaviour constitutes an abuse of the administrative proceeding.

The “malice aforethought” standard is too rigid. Although the Panel in Ammar Jarrous agreed that “the Respondent had made a convincing case to the effect that the Complainant should have known that the Respondent had a legitimate interest (in the sense of the Policy) in the disputed domain name,” he rejected the Respondent’s request because “he has not provided any evidence of malice aforethought or harassment by the Complainant in the sense of the Policy.”

Malice aforethought as the sole measure of bad faith misconstrues Smart Design which held that it is also bad faith to pursue “a Complaint after the Complainant knew it to be insupportable.” This second part of the formulation is found in CNRV in which the majority held “that ‘bad faith’ … extends also to a person who, while maybe not knowing an allegation to be insupportable, makes the allegation reckless as to whether it is supportable or not.” In contrast, bad faith does not extend to those complaints “not well founded” but which contain no “fabrications or manifestly unsustainable positions,” Skyhook Wireless Inc. v. John L Productions, Johnny Williams, D2010-0359 (WIPO April 23, 2010).

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

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