Panels Should Consider RDNH Even if Not Requested

A National Arbitration Forum panel presided over a UDRP that was filed against the CyberGuard.com domain name. CyberGuard.com is owned by McAfee, the global computer security company. For whatever reason, the CyberGuard.com domain name does not resolve to a functioning website.

Not surprisingly, the sole UDRP panelist, Terry F. Peppard, ruled in favor of McAfee even though the company did not respond to the UDRP. While the decision was on point, I think the panelist should have taken it upon himself to rule that the filing was a case of Reverse Domain Name Hijacking (RDNH). It does not appear that RDNH was even considered by the panelist.

In order to win a UDRP proceeding, the complainant needs to prove the domain name was registered and is being used in bad faith. If the complainant cannot prove these two elements that work hand in hand (in addition to the domain name being confusingly similar to its mark and that the registrant doesn’t have rights to the domain name), the UDRP will fail. There should be no wiggle room there.

In the contentions section of the UDRP, the complainant’s own admissions doom the UDRP from succeeding:

From its beginnings in 2018, Complainant has used the CYBERGUARD mark to market computer programming and computer security consultancy services.”

“Respondent acquired and registered the domain name in its own name in 2008.”

Emphasis above is mine.

From what I can see here, the complainant created its brand in 2018 yet the registrant registered the CyberGuard.com domain name in 2008. This means it is impossible for McAfee to have registered the domain name in bad faith as it relates to the complainant. Because of this impossibility, the complainant should have known the UDRP could not possibly succeed, and the panelist should have ruled it was RDNH.

There is no penalty or alternative outcome for a finding of RDNH, but I still like to see panels consider a RDNH finding when it is impossible for a UDRP to succeed from the outset.

Elliot Silver
Elliot Silver
About The Author: Elliot Silver is an Internet entrepreneur and publisher of DomainInvesting.com. Elliot is also the founder and President of Top Notch Domains, LLC, a company that has closed eight figures in deals. Please read the DomainInvesting.com 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

2 COMMENTS

LEAVE A REPLY

Please enter your comment!
Please enter your name here

Recent Posts

Atom.com Brings Expert Review Process in House

1
For as long as I’ve known the platform, Atom.com has relied on an “Expert Review Process” to evaluate domain names submitted by prospective sellers....

Google Change Should Reinforce .com Dominance

0
Google has operated its search engine on many different domain names. Of course, Google.com is the company’s primary domain name and the one that...

Don’t Delay Registering Trending Domain Names

4
I regularly see people discuss the possibility of domain registrar front running. In fact, I've written about this topic before. By and large, I...

ICA Webinar on Transfer Lock Changes

4
Transfer lock policies can differ at each domain registrar. Depending on the situation and domain name status, some locks are required by ICANN and...

Domain Count is an Important Metric

1
I have been using DomainLeads.com on a regular basis since it was introduced last year. I use the tool to see how many domain...