A one member UDRP panel today rejected the claim of Diamond Resorts Holdings, LLC which was seeking 15 domain names.
For the third time in a week, the panel questioned the accuracy of the information the complainant presented to the panel:
“While the Panel is not in a position on the submitted to assess the credibility of either side to determine who is or is not telling the truth, some of the documentary materials provided by the parties suggest that Complainant’s description of the facts may not be wholly accurate.”
Complainants misrepresenting facts in a UDRP is quickly becoming a a trend.
In the Proctor and Gamble UDRP case, the panel found that P & G misrepresented the facts when the claimed $40 Million dollars in sales for a product which actually only generated $60,000 in sales.
In denying the UDRP on the domain name FileSense.com the panel found the complainant made an untrue statement when they represented they had a registered US trademark, when in fact they only had recently applied for a trademark:
“The first question that arises is whether Complainant has a trademark or service mark on which it may rely”
“Complainant claims that it has a registered trademark, i.e. a trademark registered with the USPTO, namely trademark No. 85, 779,926, registered on November 15, 2012.”
“That statement is incorrect”
“Complainant has in fact only filed an application, which is now pending, for the FILESENSE mark”
“It is of course well established that a pending trademark application is insufficient to establish rights in a mark for the purposes of the Policy and, accordingly, Complainant’s application does not establish rights in the FILESENSE mark”
Also the panel found the company represented it first used the mark in 2011 even though the company was not even in existence until a year later in 2012.
In the case of Diamond Resorts Holdings, LLC
The domain names are issue were:
The panel stated:
“Complainant appears to be claiming that Respondent has a history of registering domain names for the purpose of resale, citing an email exchange between the parties attached as Annex C to the Complaint. Complainant does not proffer any reverse WhoIs evidence showing that Respondent has a history of registering domain names that incorporate third party trademarks, has not provided any UDRP or other decisions finding Respondent to be engaged in cybersquatting, and has not provided any examples where Respondent has registered a domain name for the purpose of resale. ”
“Complainant next states that Respondent’s offer to sell the disputed domain names constitutes bad faith use and registration. Again, reviewing the email exchange relied upon by Complainant, the Panel cannot find in the email relied upon any evidence that the disputed domain names were registered for the purposes of resale to Complainant.”
“The record lacks any evidence to suggest that the disputed domain names were originally registered in order to sell them for valuable consideration.”
The panel went ahead and found that the complainant had not met their burden of proof.