Earlier this year, I reported that a UDRP was filed against DAE.com. The complainant in the UDRP is Dubai Aerospace Enterprise. The UDRP was decided by a three member panel, and the decision went in favor of the domain respondent. Attorney Jason Schaeffer of ESQWire.com represented the domain respondent, who will retain the domain name as a result.
As reported in the original article, the domain registrant acquired the domain name via GoDaddy Auctions for $126,000. Reportedly, the complainant in the UDRP offered to buy the domain name for $200,000 via a broker from GoDaddy shortly after the conclusion of the auction. From what I gather, it appears that the domain registrant was communicating with multiple parties, perhaps related to (or working with) the complainant prior to the UDRP filing. The respondent believes the UDRP is a “Plan B” filing because the attempt to acquire the domain name via negotiation had failed.
The panel ruled in favor of the domain registrant, ruling that the DAE acronym has alternative meanings and uses. From the decision:
“The evidence in the case files shows that the acquired secondary meaning of the acronym “DAE” in relation to the Complainant is limited to the aviation industry, and supports the contentions of the Respondent that this acronym has alternative meanings and uses that justify the value of the disputed domain name without any reference to the Complainant, and the Complainant does not provide any evidence indicating that the Respondent would have targeted the Complainant at the moment it acquired the disputed domain name.”
This is not unlike just about every single other 2 or 3 letter acronym domain name.
There was one aspect of the decision that had a bit of contention. The panel ruled this was not a case of Reverse Domain Name Hijacking (RDNH). However, The Honorable Neil Brown QC wrote a lengthy dissenting opinion about why he believes a ruling of RDNH should have been reached, citing five specific reasons for why it should have been RDNH. I posted an excerpt from the dissent, but I think it should be read in its entirety because I wholeheartedly concur:
“The specific reasons why there should be a finding of RDNH are as follows.
First, the Respondent acquired the domain name in the open market at an auction where there were 25 other spirited bidders, a major factor militating against any impropriety by the Respondent. The Respondent won the auction fair and square. But the Complainant will not accept the obvious, that it lost. It must also surely have been obvious that what was motivating the Respondent was not a desire to cause trouble for the Complainant, of whom it had probably never heard, but to beat the other bidders, which it did.
Secondly, the claim was for an acronym, which can stand for anything, as all acronyms do, and not only for the Complainant’s initials, making the suspicion that the Respondent must have been targeting the Complainant highly unlikely. This should have been a warning to the Complainant not to make serious allegations of impropriety, which is all that the Complainant’s case consisted of, unless there was some evidence to support them.
Thirdly, the Complainant must have known or could have discovered, and not only because there had been a lively auction, that the Respondent must have had a right or legitimate interest in a domain name consisting solely of an acronym in wide use elsewhere, provided there was no untoward conduct by the Respondent, of which there was none.
Fourthly, the allegation of bad faith is the most serious allegation that can be made in this field of the law and yet it was made in the present case without any factual basis. It is apparently said that the Complainant became suspicious of the Respondent, a common feeling among losing bidders at an auction, particularly bad losers. But a respondent surely cannot be denied the benefit of a finding of RDNH simply because of a suspicion, which in any event was shown to be unfounded.
Finally, as has been stated many times, complainants are at risk on RDNH when they start with Plan A, try to buy a domain name but find the registrant of the domain name will not oblige them by giving the domain name away at a low price, and then resort to Plan B, which is to use the UDRP as a weapon and try to rewrite history. The present complainant seems to have resorted to Plan B Extra, to try, but fail to buy the domain name at a public auction, try and again fail to buy it by private treaty and then resort to the UDRP and accuse the registrant of bad faith and of having no right to own a domain name that the complainant has just been trying to buy from it. In that regard, this panellist finds himself echoing the sentiments of the distinguished three-person panel in BERNINA International AG v. Domain Administrator, Name Administration Inc. (BVI), WIPO Case No. D2016-1811 where it observed “In the Panel’s view, this is a classic “Plan B” case, i.e., using the Policy after failing in the marketplace to acquire the disputed domain name. This stratagem has been described in several earlier UDRP cases as “a highly improper purpose” and it has contributed to findings of RDNH. See, e.g., Patricks Universal Export Pty Ltd. v. David Greenblatt, WIPO Case No. D2016-0653 (holding “Plan B” approach as a basis for a finding of RDNH) and Nova Holdings Limited, Nova International Limited, and G.R. Events Limited v. Manheim Equities, Inc. and Product Reports, Inc., WIPO Case No. D2015-0202 (use of UDRP proceeding to increase bargaining leverage in sale negotiations called “a highly improper purpose”).”
It remains to be seen whether Dubai Aerospace Enterprise will end up acquiring the domain name. I would not be surprised if that is the case.