UDRP Results in RDNH

In my opinion, it should almost automatically be considered Reverse Domain Name Hijacking (RDNH) if a complainant files a UDRP when the domain name has been owned by the registrant prior to the existence of the complainant’s brand. Because a complainant absolutely must prove the domain name was registered in bad faith, it would be impossible for this to have happened if the registrant owned the domain name before the complainant’s brand or trademark was created.

A company called Etrack LLC filed a UDRP against the domain name. According to the Factual Background section of the just-published WIPO UDRP decision, “Complainant owns a federal trademark registration for BYFY, namely, United States Registration No. 6,398,262, registered on June 22, 2021 (application filed on July 22, 2020) for…” On the other side of this complaint, “Respondent annexed to the Response a sworn affidavit in which Respondent states he registered the Disputed Domain Name in 2013 or 2014.”

This means, without the assistance of a time machine or other type of time travel, it would have been impossible for the registrant to register this domain name in bad faith, with respect to the complainant, since it was registered years before the complainant filed its trademark application.

According to the decision, the complainant tried to buy the domain name for $32,500 via Sedo. The offer was rejected. This would indicate the UDRP was filed as a “Plan B” filing. This means the complainant first tried to buy the domain name and when that failed, it filed the UDRP as the alternative Plan B.

The panelist in this decision, Lawrence K. Nodine, made the right decision in ruling against the complainant. He went further and ruled this was RDNH. Here’s what he wrote in finding this to be an abusive UDRP filing:

“Paragraph 15(e) of the Rules provides that, if “after considering the submissions the panel finds that the Complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.” RDNH is defined under the Rules as “using the UDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name.”

The facts here call for a finding of RDNH. As a general rule, bad faith registration will not be found where the disputed domain name was registered before the complainant acquired trademark rights (WIPO Overview 3.0, section 3.8.1.), and Complainant acknowledged that Respondent registered or acquired the Disputed Domain Name well before Complainant’s earliest use of its BYFY trademark (whether in 2004 or 2013-2014). It was incumbent on Complainant to justify departing from the general rule that bad faith registration will not be found where the disputed domain name was registered before Complainant acquired trademark rights. See Securus Technologies, LLC v. Domain Administrator, WIPO Case No. D2021-3383 (finding RDNH where complainant acknowledged the domain name was registered before complainant’s claimed date of first use and did not provide arguments justifying departure from the general rule). Complainant made no such effort, other than the contention that the mere fact of engaging in negotiations that Complainant initiated was evidence of bad faith. The preponderance of evidence indicates that Complainant filed this UDRP complaint out of frustration after a failed effort to purchase a domain name that it knew or should have known was not registered in bad faith. Accordingly, the Panel finds RDNH.”

Elliot Silver
Elliot Silver
About The Author: Elliot Silver is an Internet entrepreneur and publisher of Elliot is also the founder and President of Top Notch Domains, LLC, a company that has closed eight figures in deals. Please read the Terms of Use page for additional information about the publisher, website comment policy, disclosures, and conflicts of interest. Reach out to Elliot: Twitter | Facebook | LinkedIn

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