A finding of Reverse Domain Name Hijacking (RDNH) was been made in a UDRP filed against the AquaFX.com domain name. The UDRP was filed at the National Arbitration Forum (NAF), and the UDRP was decided by a three member panel. The domain registrant was represented by attorney Jason Schaeffer of ESQWire.com.
In order to win a UDRP proceeding, the complainant needs to prove three things (paraphrasing): 1) the domain name is identical or confusingly similar to a mark held by the complainant, 2) the registrant has no rights or legitimate interests in the domain name, and 3) the domain name was registered and is being used in bad faith. If a complainant proves 2 of the three elements, the complainant loses. All three must be proven.
In a typical UDRP decision that I read, if the complainant fails to prove one element, especially the first element, the panel will often decline to discuss the other aspects of the UDRP. There isn’t much of a point to go into detail about whether or not the domain name was registered and being used in bad faith if one of the other elements had failed to be proven. In the AquaFX.com UDRP, the panel discussed all three elements and ruled that the complainant was unable to even prove one of them. As a result, the complaint was denied and the panel ruled that this was a case of RDNH.
In its discussion about RDNH, the panel made mention that it believes the UDRP filing was made as a result of not being able to buy the domain name. This is known as “Plan B” since “Plan A” would have been an acquisition attempt. Here’s what the panel said about Reverse Domain Name Hijacking:
“The Panel concludes that Complainant instituted these UDRP proceedings knowing that the Respondent was prior in time in registering the DDN and that Complainant could not possibly establish the element of bad faith registration by Respondent, which is required under the Policy Paragraph 4(a)(iii).
It appears to the Panel likely that Complainant instituted the present UDRP action as a “Plan B”, knowing full well that Complainant could not establish the required element of bad faith registration and use by Respondent, as a means of exerting pressure unfairly on Respondent with a view to acquiring the Disputed Domain Name for itself.
The Panel finds that Complainant has engaged in Reverse Domain Name Hijacking.”
It’s unfortunate when a domain registrant needs to respond to a UDRP like this, but it is good to see a panel acknowledge RDNH like this panel did.