RDNH Ruling in FlyingDog.com UDRP

The Flying Dog Brewery filed a UDRP to try and wrest control of the FlyingDog.com domain name. Not only did the company lose the UDRP, but the panelist found that the brewery engaged in Reverse Domain Name Hijacking (RDNH).

When I noticed the UDRP filing, I was not surprised to learn that the brewery wanted the exact match domain name for its brand – FlyingDog.com. I would imagine the brewery has wanted the domain name for a while. Although the Whois record has been private for a few years, prior to that, the record was public and showed that the domain name was owned by a business called Flying Dog Enterprises. It seems pretty clear to me at least that the domain name likely was not registered in bad faith, and it is necessary to prove this (and more) to win a UDRP.

There were a couple of aspects to this case I found to be interesting, beyond the ultimate finding. The brewery reportedly offered to buy FlyingDog.com from the registrant for $17,000 in 2001. Sometime this past year, the company reportedly offered $15,000 to buy the domain name via broker. I am sure the registrant was probably perplexed that the offer would decrease when domain names have arguably gone up in value. The registrant countered at $225,000 for the domain name, and the complainant then filed the UDRP.

The panelist seemed pretty displeased with the complaint and let this displeasure be known in the section covering whether the domain name was registered and used in bad faith. Here’s an excerpt from that section of the decision:

“For the reasons discussed under this and the preceding heading, the Panel concludes that the Complainant has failed to carry its burden of demonstrating bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy. The record is clear that the Respondent has never initiated contact with the Complainant with the intention of selling the disputed domain name to the Complainant. To the contrary, it was the Complainant who in 2001 approached the Respondent and offered to purchase the disputed domain name from the Respondent for the sum of USD 19,000. The Respondent declined the offer and did not respond with a counter-offer. The Complainant did not at any time thereafter place the Respondent on notice that it viewed the disputed domain name as infringing its rights.

The Respondent heard nothing further from the Complainant for some 17 years. As previously discussed, the Complainant at no time provided any notice to the Respondent of the Complainant’s assertion that the Respondent had registered and was using the disputed domain name in bad faith. The Complainant on June 14, 2018, through the auspices of an undisclosed domain name broker, contacted the Respondent, presenting an offer of USD 15,000, which was less than the Respondent had been offered by the Complainant in 2001. The Complainant’s domain name broker encouraged the Respondent to make a counter offer. The Respondent did so, and within a few days the Complainant submitted a UDRP Complaint to the Center.

The Complainant could easily have discovered from a brief Internet search the Respondent’s historical use the disputed domain name before filing the Complaint. See, e.g., GIGS United S.L. v. SIE MANTIC, WIPO Case No. D2014-1689; Personal Communication Systems, Inc. v. CDN Properties Incorporated, WIPO Case No. D2014-0664. The Complainant either did not do so, or having done so elected to conceal from the Panel known facts unfavorable to the Complainant. The Complainant submitted a barebones complaint unsupported by any evidence, and blatantly misrepresented to the Panel that the Respondent had hired an undisclosed agent seeking to sell the disputed domain name to the Complainant at an exorbitant price. The record, however, confirms that it was the Complainant who retained a domain name broker. The Complainant’s blatant and intentional misrepresentation as described above constitutes a clear violation of section XIII, paragraph 21 of the Complaint.”

That part of the decision pretty much set up a finding of Reverse Domain Name Hijacking. Here’s an excerpt from that section of the UDRP:

“See, e.g., GIGS United S.L. v. SIE MANTIC, WIPO Case No. D2014-1689; Personal Communication Systems, Inc. v. CDN Properties Incorporated, WIPO Case No. D2014-0664. The Complainant has presented no evidence that supports or conceivably could support an allegation that the Respondent, after becoming aware of the Complainant, changed his use of the disputed domain name in order to target the Complainant or its mark. See Squirrels LLC v. Giorgio Uzonian, WIPO Case No. D2014-1434. There is no persuasive evidence in the record that the Respondent at any time targeted the Complainant’s rights in its marks.”

I don’t think decreasing an offer is the right strategy here. I also think filing a UDRP like this was a bad idea as well because now the domain registrant is likely out some money as a result of hiring legal counsel. Maybe the domain registrant likes beer and they can work out a fair price for the domain name over an IPA.