A three member panel has just ruled in favor of the domain holder on the UDRP brought by SMA Solar Technology of Germany, on the domain name SMA.com.
We noted back on May 1st when the UDRP was just filed that the domain holder was not a domainers, and actually a company whose names initials where SMA, Specialized Micro Architects.
The panel denied the complaint despite the fact that the domain holder did not even file a response and that the domain had not be actiely used in years and that the company the domain was registered to ceased to exist in 1990.
Here are the relevant facts and findings:
“The Complainant owns 350 trademark registrations worldwide, of which 152 of the registrations are for the word mark SMA alone. In 2010, the Complainant’s revenues for SMA branded products were USD 2.6 billion.”
“The Respondent Specialized Micro Architects lists an address in Warrenton, Virginia. A corporation under the name Specialized Micro Architects Corp., was registered with the Virginia State Corporation Commission in the late 1980’s, but the corporation ceased to exist on June 1, 1990, and the corporate records were purged as December 31, 1995. ”
“No other business license or registration under this name has been filed in the State of Virginia, or the United States. ”
“The Respondent, Michael A. Platko, also resides in Warrenton, Virginia, United States. From the record provided to the Panel, the Respondent Michael A. Platko who was indicated as an administrative contact in a previous WhoIs database appears to have operated Specialized Micro Architects under a sole proprietorship and to have actual or apparent control over the disputed domain name. Accordingly, the Respondents Specialized Micro Architects and Michael A. Platko will be treated as a single entity.”
“The disputed domain name <sma.com> was created on February 23, 1995, and at the time the Complaint was filed, the disputed domain name <sma.com> reverted to a parking page, with the message: “Your requested host “www.sma.com” could not be resolved by DNS”. This parking page did not contain any links to other websites or click-throughs, and it had no content except for the message stated above.”
“The Complainant faces a number of challenges in establishing bad faith in the particular circumstances of this case, including the length of time the registration has existed (17 years) and the fact that the disputed domain name itself has not been used in connection with any sort of active website for many years, if ever.”
“The Complainant has expressed its high level of frustration in attempting (and failing) to acquire the disputed domain name through negotiations with the Respondents, beginning in 2005. ”
“The Panel understands this frustration but notes that this alone is not particularly probative in connection with the requirements to establish bad faith pursuant to the Policy.”
“The Complainant argues that the Respondents must have known about its trademark rights in 2009, when the disputed domain name was renewed, because there had been prior contact in 2005 with the Respondent Mr. Pltako about purchasing the disputed domain name. ”
“However, in the Panel’s view, the evidence relating to this first contact and the subsequent discussion about transferring the disputed domain name do not clearly support a finding of bad faith registration and use of the disputed domain name.”
“The Complainant provided a detailed account of its two contacts with the Respondent Mr. Platko. The first conversation occurred in August 2005 (prior to the renewal). At that time, the Complainant’s representative A. Vossing (“AV”) told Mr. Platko that she wanted to discuss the purchase of the disputed domain name <sma.com>, and Mr. Platko (“MP”) responded:
(MP) “How much are you willing to pay?”
(AV) “What would your expectation be in terms of an amount?”
(MP) “100 Million Dollars! Send a letter!”
(AV) “ Well, I am not willing to pay 100 million dollars, but I would like to make you a serious offer. Could we discuss that?”
(MP) “Senda a letter!”
(AV) “To which address? Is Specialized Micro Architects still active at the listed address or to the Auburn Road address…”
(MP) had already hung up the phone.”
“The Complainant then made several attempts to negotiate a purchase price, through certified offers through the concerned Registrar Network Solutions, LLC, and by way of a letter but no response was ever received from Mr. Platko.”
“In 2011, an investigator located Mr. Platko through contact with his mother, and had a telephone conversation with him about purchasing the disputed domain name. The investigator recorded that Mr. Platko “stated that he does not understand why people continue calling him in an attempt to buy the [disputed domain name]. He was curt and emphatic that he did not want to talk to the [investigator] and then stated that the [disputed domain name] is not for sale.”
“The Complainant characterizes the Respondents’ conduct as showing a bad faith intention to obtain disproportionately high compensation for the disputed domain name from its rightful owner.”
“However, the Panel is not convinced that this is an accurate characterization of the exchanges with Mr. Plakto on this issue.”
“The Panel’s view is that Mr. Platko’s conduct reflects a consistent intention simply to retain the long-term ownership of the disputed domain name, rather than disposing of it for any amount. ”
“The evidence shows that Mr. Platko is treating the disputed domain name as “not for sale.”
“From the Panel’s perspective, on the limited evidential record available at this time, it is difficult to conclude that the Respondents have engaged in bad faith either when the disputed domain name was registered in or about February 1995 (that is before the Complainant’s registration of its SMA trademark in or about August 1995) or when it was renewed in 2009, or has otherwise created or maintained an abusive domain registration. The Respondents’ reasons for maintaining the registration – without using it for any website – remain obscure but in the circumstances as disclosed on the evidentiary record, the Panel finds that it is not abusive for the disputed domain name to remain under the Respondents’ control. ”
“In the event that circumstances change, or additional evidence is uncovered, the Complainant may be at liberty to seek remedies based on a different record, as it sees fit.”
“As the record now stands, the Panel finds that the Complainant has failed to satisfy the requirement under paragraph 4(a)(iii) of the Policy.”
Nice.
Good job,
On another thought. This case shows how powerful dot Coms still are. The values are just incredible, period.
Well, at least the complainant was honest enough to state what happened trying to acquire the domain name. Still, bad form trying to acquire something that doesn’t belong to them despite an essentially emphatic no.
AV’s approach reminds me of certain domainers (like Justin Godfrey) when they think they’ve found a mark
Persistent fuckers
I think the ruling was correct, but the domain owner is nuts. He could have written a very large number and these folks were probably motivated enough to pay it. A sort of arrogant and nonsensical stance for someone with a domain he’s not even using. He’s well within his legal rights, but sort of crazy. If he doesn’t need/want the money, have the buyer cut a check to his favorite charity!!
fuck sma. we live right next door to one of their assembly plants. sma got exactly what it deserved. we have dealt with sma once and that was enough. no more details will be published. sma is going to go to school.