In a three member panel decision on Monday, we won a UDRP decision on the domain, BrassRail.com
The panel found that the complaint failed to meet the first requirement of three it must meet to win
Here are some relevant quotes from the decision:
“”””The Complainant failed to establish enforceable rights to the “Brass Rail” mark, having reached this conclusion, the Panel declines to discuss the other elements of the Policy.
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant does not possess a registered trademark for the term Brass Rail nor has Complainant demonstrated sufficient secondary meaning in the BRASS RAIL mark in order to establish common law rights pursuant to Policy ¶ 4(a)(i).
Having found that Complainant has not satisfied Policy ¶ 4(a)(i) because it has failed to establish rights in the BRASS RAIL mark, the Panel declines to analyze the other two elements of the Policy.
A majority of the panel rejects a finding of reverse domain name hijacking.”””
OK so we win, great, but why isn’t this domain hijacking?
If someone has to prove 3 elements to win an action and they fail to prove even the 1st element, doesn’t that mean the complainant didn’t even have a case?
If a complainant doesn’t even have a trademark or any common law mark, basically has no claim whatsoever against a domain and the panel finds as such, then it’s a clear case, of someone with out a case, trying to take something they have absolutely no right to.
Sounds like reverse hijacking to me.
Michael…….I’d swear it is a new trend by WIPO and the NAF panelists to not find for reverse domain name hijacking anymore.
Them finding no reverse domain name hijacking and posing that “finding” that way makes me think there is some collusion at work.
This is happening WAY too much lately. They don’t punish the complainants anymore.
Am I the only one who is noticing this?
The wording is SO suspect you have to wonder who is influencing what. 🙁
Who was your lawyer ?
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I almost forgot to add my most important thought.
If the panelists find for too many reverse domain name hijackings than less UDRPs will be filed and they will make less money.
Some judges I have been finding have done some 900 + cases…..possibly thousands, but I can’t get access to all their cases.
Now….I have not been able to find out what each panelists receives as far as compensation for each UDRP, but 900 cases X $300 each….. is $270,000. Just imagine if it is $600 or more.
You can begin to imagine where their interest lie. Is this the reason they won’t find for reverse domain name hijacking anymore? You tell me.
I do know that UDRPs doubled from 2007 to 2008….so do the math.
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Mike; did this party attempt to buy the name before filing this unfounded action?
Johnny
Ari defended us.
I think the panelist get paid, around $600 per
Steve
We get offers every day and do not keep track of each one, forever.
However, I do not believe the complainant made an offer otherwise they would have said so in the complaint.
I don’t mean to play devil’s advocate here (& don’t know the facts of this case & have fortunately never been involved in a UDRP), but:
The panel didn’t rule on the second and third elements (so we can’t discount the possibility that the claimants had a case in those areas), and the claimants may have honestly thought they had somehow established common-law rights to the name. Reverse hijacking certainly exists, but the fact that the first element isn’t proven doesn’t _necessarily_ imply that this case was filed in bad faith.
Feel free to reveal more facts of the case if you think they would strengthen your reverse-hijacking viewpoint.
There was no ruling about good faith and bad faith, from what I read here. The UDRP panel apparently only ruled that since there the first condition of a UDRP filing was not met, the other conditions would not be considered.
Law is very tricky for most who do not understand it, and it is trickier for those who do. There are specific rules of procedure to follow, rules of evidence, rules of administration, blah blah blah. It gets very confounding.
BTW: was that Ari Bayme or Ari Goldberger? I’m unlclear on that and would be curious to know.
Thanks
Danny
If there are 3 requirements to bring a case and the first one, the most basic one is not met, that is having no claim to interest to the term, then the complainant had no case. If he had no case, then he just tried to take something he had no right to.
We were represented by Ari Goldberger
Thanks!