Frank Schilling’s Name Administration won a UDRP on the domain name TableforTwo.com who was defended as usual by John Berryhill.
The complaint was brought by Julie Wampler of Washington, D.C. back on September 15th who runs a blog at TableForTwoBlog.com and got a trademark on the term TABLE FOR TWO on March 13, 2013.
The Domain Name TableForTwo..com was registered on September 8, 2004.
The Complainant argued that Name Administration’s asking $89,000 for the domain name was proof of bad faith within the meaning of the UDRP.
The panel disagreed.
However, despite the fact that the Complaint was brought on a trademark registered some 9 years after the domain was registered the panel refused to find Reverse Domain Name Hijacking seemily based on her misunderstanding of the meaning and how archive.org worked, as she believed the domain name registrant had changed since her alleged first use of the term which she claimed was well before her registered mark.
Again a UDRP panel seems very willing to give a Complainant the benefit of the doubt when it comes to lack of knowledge as in this case or if they are a virgin to the UDRP process as in this case
Here are the relevant findings of the three member panel:
“A majority of the Panel takes cognizance of the following factors in finding that the Respondent has indeed demonstrated rights or legitimate interests in the Disputed Domain Name:
a. The Respondent registered the Disputed Domain Name in 2004, well before the Complainant’s first use of the trade mark TABLE FOR TWO in 2011.
b. The Disputed Domain Name appears to reflect a relatively common and descriptive phrase, as the other registered trade marks provided by the Respondent for the same trade mark show. The trade mark TABLE FOR TWO does not appear to be associated exclusively with any single party.
c. None of the links which appear on the website attached to the Disputed Domain Name are in direct competition with the activities of the Complainant, which is an important consideration in determining whether the Respondent’s conduct could be considered fair. Rather, the links are in connection with food and restaurant services, all of which fall within the meaning that the descriptive phrase TABLE FOR TWO suggests.
d. It is well documented that the Respondent is in the business of monetizing descriptive domain names.
The Panel also accepts the Respondent’s evidence that the links on its website do not specifically indicate a targeting of the Complainant.
A majority of the Panel view is that the Complainant has not carried its burden of proof under this Policy heading.”
“The dissenting view by Panelist Christie is that the use of a domain name to resolve to a landing page with automatically generated PPC links (even those that relate to the meaning of a descriptive phrase) does not, of itself, constitute a bona fide use so as to give rise to rights or legitimate interests in the domain name for the purpose of the Policy. In Panelist Christie’s view, this must be so because otherwise the trivial act of using a domain name to resolve to a landing page with automatically generated links would immunize the domain name from action under the Policy, whatever might be the intention of the registrant or the effect of the registrant’s actions. In Panelist Christie’s view, something more is required to give rise to rights or legitimate interests in a domain name – something that constitutes a genuine offering of goods or services.””
C. Registered and Used in Bad Faith
To prevail, the Complainant must prove all three requirements under Paragraph 4(a) of the Policy.
Since Complainant does not meet the second requirement in connection with the Respondent’s rights or legitimate interests, it is not necessary for this Panel to consider the issue of the registration and use of the Disputed Domain Name in bad faith any further.
However, for the sake of completeness, the Panel considers it appropriate to state its unanimous view that, because the Disputed Domain Name was registered seven years prior to the creation of the Complainant’s rights, there could not have been bad faith registration in this proceeding.
D. Abuse of Process
Although it is a close question, the Panel declines to make such a finding in this case.
The mere lack of success of a complaint is not in itself sufficient to constitute a bad faith finding and while the Complainant has advanced a weak case, its argument was not so completely void of merit, and it was not so obvious that the Complainant was misunderstanding the meaning of the pages it found through the “www.archive.org” website, that the Complainant must have appreciated that that was the case and made a bad faith decision to go ahead with the Complaint anyway.
The Panel is not persuaded that this Complaint was brought in such bad faith.”