Personal Communication Systems, Inc. of Winston-Salem, North Carolina, represented by Bell, Davis & Pitt, P.A. was just found guilty of Reverse Domain Name Hijacking (RDNH) on the domain name healthwave.com.
The Complainant registered a trademark on the term HEALTHWAVE in October 2012.
The domain holder registered the domain in 2002
The one member panel of Andrew D. S. Lothian wrote:
“The Respondent in the present case has requested that the Panel make a finding of Reverse Domain Name Hijacking on the grounds that the Respondent had peacefully used the disputed domain name for more than 10 years before the Complainant’s trademark rights came into being and could not therefore have registered the disputed domain name in bad faith.”
“The Panel agrees with the Respondent’s analysis, as is borne out by its finding above.”
The question before the Panel on this topic is whether the Complainant knew or should have known that it could not prove registration in bad faith at the time that it filed the Complaint.
In the Panel’s opinion, the answer to that question must be in the affirmative.
The content of the amended Complaint itself makes this clear. Paragraph 8 expressly sets out the date of registration of the disputed domain name, namely October 13, 2002. Paragraph 12 contains a specific averment regarding the month and year on which the Complainant is said to have adopted the use of the HEALTHWAVE mark in commerce, namely June 2010. Despite listing these dates, the Complainant makes no attempt to address the obvious issue of the lengthy intervening period between them. Nor does the Complainant attempt to demonstrate the existence of any earlier rights in its HEALTHWAVE mark.
As such, the Panel considers that the Complaint was bound to fail and that the Complainant knew or ought to have known this at the point of filing.
In these circumstances, the Panel finds that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.””
