RDNH Finding in SmartSearch .com UDRP

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When you think of the term (or brand) “smart search,” what company immediately comes to mind? For me, no company comes to mind, and it seems like a pretty generic term. A California company called Advanced Personnel Systems, Inc. filed a UDRP against the SmartSearch.com domain name at the National Arbitration Forum. The complainant lost the UDRP, and a finding of Reverse Domain Name Hijacking (RDNH) was made.

I think that it has been well established that a domain name owner can put pay per click parking links on a domain name landing page as long as the domain name is generic in nature. The SmartSearch.com UDRP complaint failed because the panel found that the domain name owner was using the domain name in a legitimate manner. Here’s what the panel wrote about PPC parking in this UDRP decision:

“If a PPC parking website shows only advertising links that are based on or related to the descriptive meaning of the domain name, a registrant may be found to have a legitimate interest in the domain name because it is making a fair use of the domain name. That is because use of a domain name for PPC advertising, where the links are related to the descriptive meaning of the domain name and are not seeking to take advantage of Complainant or its trademark rights, reflects a legitimate effort to capitalize on the descriptive meaning of the domain name rather than an effort to capitalize on the goodwill associated with another entity’s trademark.

In this case, Respondent has been utilizing the disputed domain name as a parking page for PPC advertising links. None of the links appear to be related to Complainant, its trademark or its business. Instead, the links seem to reflect descriptive matters that one might search for on the Internet, such as “games” and “movies.” Because these links are sufficiently related to a website that offers “smart” “search” on the Internet, and because none of the links are related to Complainant or its personnel staffing program, the Panel finds that Complainant has failed to establish that Respondent lacks rights or legitimate interests in the disputed domain name.

Complainant argues that Respondent’s webpage does not always include PPC links; at those times, the webpage to which the domain name resolves includes only the notation that the domain name may be for sale. Even if that is correct, it does not undermine the fact that the Respondent appears to have a legitimate interest in using this domain name for a page that sometimes includes links related to smart searching on the Internet.”

Jason Schaeffer of the ESQwire.com law firm represented the domain owner in this UDRP and requested a finding of RDNH. The panel agreed, noting the following:

“This case provides a clear example of Reverse Domain Name Hijacking. Through this action, Complainant sought to obtain the disputed domain name despite having to know that its Complaint had no possibility of success. Complainant and its counsel made conclusory allegations with no supporting facts, and disregarded the requirements set forth in the Policy for establishing abusive registration of a domain name. Complainant submitted no evidence to show that the PPC links were targeting Complainant or its business or trademark, ignored the obvious descriptive meaning of the disputed domain name, and made unsupportable assertions of bad faith.

Complainant’s and its counsel’s bad faith conduct is all the more apparent when one considers that Complainant waited more than a decade to bring this challenge, and filed it only after its failed efforts to purchase the domain name. “

The three NAF panelists in this decision were David H. Bernstein (Presiding Panelist), The Honourable Neil Anthony Brown QC, and James Bridgeman SC. The complainant was represented by Rutan & Tucker LLP.

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