I agree with many in the trademark contingency that cybersquatting is a big problem that plagues big brands. I believe there are many grey areas when it comes to domain names, but similarly, I believe there are a lot of shades of grey in trademark law.
For the most part, I think the UDRP is a fair way for trademark holders to dispute domain names that infringe on their marks. In addition, with egregious cases, United State trademark holders can certainly use the ACPA (Anticybersquatting Consumer Protection Act) to litigate against trademark infringers.
One thing that really, really frustrates me when it comes to UDRP filings is to see cases of Reverse Domain Name Hijacking (RDNH). If you aren’t familiar with RDNH in a UDRP, it’s when “the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.”
When a domain owner receives a notice of UDRP for a descriptive domain name, he generally must hire an experienced domain attorney to defend his domain name from being awarded to the complainant. I have heard this can cost anywhere from $5,000 or more depending on certain variables. Some people may opt to file a defense on their own, but that’s a big risk for someone who isn’t experienced.
In addition to the legal fee, the attorney may recommend that the domain owner pay for a 3 person panel for a better shot at winning, and I believe this will cost $2,500 (complainant pays $1,500 and respondent pays an extra $2,500 for the 3 person panel). With these two costs, you are close to spending $7,500+ just to defend your right to own the domain name.
As it stands right now, there is no penalty for companies who are found to have attempted a Reverse Domain Name Hijacking. In essence, a company with a legal staff on retainer can take a gamble and spend $1,500 on a UDRP to get a descriptive domain name, and their only risk is a slap on the hand (if that) for a RDNH finding. Many people/lawyers don’t even seek RDNH findings since there aren’t any repercussions for them.
In my opinion, a company should have some sort of penalty for filing a UDRP that is determined to be RDNH. If a financial penalty can’t be given, perhaps a company found guilty of RDNH should be precluded from filing a UDRP for a year. They have legal recourse if they wish to use it, but they will risk losing the ability to use the UDRP forum for defense of their marks.
I am not a legal expert nor do I have any legal experience. I am just frustrated to see friends have UDRPs filed against them on domain names that are found to be descriptive. It increases the risk and cost of domain ownership.
What are your thoughts?