REFLECTIONS ON THE REFILING OF A COMPLAINT
February 2, 2026
Gerald Levine, Special Guest Columnist
Gerald M. Levine, Esq. is a UDRP Panelist and counsel, and is the author of the Domain Name Arbitration, A Practical Guide to Asserting and Defending Claims of Cybersquatting (2019) and The Clash of Trademarks and and Domain Names on the Internet (2024). He also has an upcoming book with David Weslow on the ACPA.
In effect, a refiled complaint is like an appeal in that a new panel is appointed to revisit the circumstances of the dispute. But it also is not an appeal because a refiled complaint must offer something new to justify its refiling. WIPO Overview (3.0) sec. 4.18 (2017) tells us that “[t]he UDRP itself contains no appeal mechanism, there is no express right to refile a complaint; refiled complaints are exceptional.” The emphasis is on exceptional! Something must have happened in the interim to justify the refiling. The jurisprudence on the refiling of complaints began with a number of cases from the first year of the Policy beginning with Grove Broadcasting Co. Ltd. V. Telesystems Communications Ltd., WIPO Claim No. D2000-0703 (“Grove 2”) followed by Creo Products Inc & anor v. Website in Development, WIPO Claim No. D2000-1490 (“Creo 2”) and others. The consensus began earlier and quickly matured. It has never been questioned.
These two and other cases form the core of the consensus are captured by Section 4.18 of WIPO 3.0. It states: “Panels have accepted refiled complaints only in highly limited circumstances,” [emphasis added] as follows:
(i) when the complainant establishes that legally relevant developments have occurred since the original UDRP decision, (ii) a breach of natural justice or of due process has objectively occurred, (iii) where serious misconduct in the original case (such as perjured evidence) that influenced the outcome is subsequently identified, (iv) where new material evidence that was reasonably unavailable to the complainant during the original case is presented, or (v) where the case has previously been decided (including termination orders) expressly on a “without prejudice” basis.
The “without prejudice basis” is a reformulation of earlier language in WIPO Overview 2.0 (2011). If circumstance (v) is invoked, the prior panel must have “expressively [decided] on a ‘without prejudice’ basis.” Panelists cannot willy nilly deviate from the jurisprudence to accept a refiled complaint, for the good reasons noted by Zak Muscovitch in his weekly commentary of January 27, 2026, commenting on Sesame AI, Inc. v. Jingyi Huang, Claim Number: FA2512002196719 (“Sesame 2”). He noted that “it is very concerning . . . [that “the Panel allowed the case to proceed and ordered the Domain Name transferred, despite the earlier dismissal].” His quarrel with the decision is that the new Panel introduces new theories to transfer the disputed domain name. I agree.
My own view of the jurisprudence is set forth in another decision that Mr. Moscovitch also commented on in the same edition of the Digest, Sam Ash LLC v. Keith Reardon, Claim Number: FA251200 2194369 (Sam Ash 2). There is no authority to accept a refiled complaint absent the circumstances that have been enumerated in Section 4.18 of WIPO 3.0, even if the refiling may, had it been the original complaint and annexes, persuaded the Panel to find in the complainant’s favor. That is what can be said as “feeling sorry for the complainant.” To allow a refiled Complaint under such circumstances would effectively amount to an “appeal”. The UDRP does not have an appeal mechanism. WIPO Overview (3.0) sec. 4.18 (2017) confirms that “[t]he UDRP itself contains no appeal mechanism, there is no express right to refile a complaint; refiled complaints are exceptional.” The emphasis is on “exceptional”.
Why insistent on “exceptional”? The Panel in Grove 2 put it bluntly: that the complainant should “get it right the first time and should have provided all the information necessary to prove its case from the material contained in the Complaint and its annexes alone.” As complainants have only a single shot to make their case, they should heed Grove 2 and Creo by filing their complaint only when they have the facts and evidence to support their claims. In this respect, they should think of their submission as a “motion for summary judgment” with the dire consequence if premature, of having their complaint dismissed with prejudice, in which case the sole remedy is to challenge the award in a court of competent jurisdiction, as dictated by the Mutual Jurisdiction requirements.
The subsequent Panel in Sesame 2 properly noted that a refiling that fails to qualify is barred by the doctrine of res judicata. It ought to have stuck to its guns rather than offering a tortured explanation for accepting the refiled complaint. It stepped into two errors by accepting the refiled complaint. First, it based its conclusion on the false premise that the prior Panel “effectively dismissed the complaint in [Sesame 1] without prejudice to Complainant’s ability to refile.” That’s a strange reading of Sesame 1 because there is no language in it to support that conclusion. That a subsequent panel thinks the prior panel meant something that is not in its decision is a misreading of the consensus view. It contradicts the well-established jurisprudence on refiling.
The new Panel compounded this error by concluding that because the Respondent did not “respond . . . [it] waived any claims of res judicata which is generally considered an affirmative defense.” This too is a newly conceived notion. Just as no prior Panel has ever accepted a refiled complaint by interpreting the prior panel’s clear dismissal on the merits as being “without prejudice,” nor has any prior panel reasoned that because a respondent who appeared and prevailed in the initial case but failed to appear in the refiled case “waived” the doctrine of res judicata. This is backward thinking. Under the consensus rules, to avoid res judicata it is the complainant’s burden to make its case that its refiling is not res judicata. Non-appearance is important only if the refiling of the complaint qualifies to be reheard.
Rule 15(a), as the Panel in Sesame 2 stated requires that Panels “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable” That does not mean however that Rule 15(a) justifies a merits assessment based on the refiled complaint. Absent any of the circumstances set forth in Sec. 4.18, treating the refiling on the merits because the Respondent did not appear to contest a second time, has no basis in the jurisprudence and to my knowledge, no Panel with knowledge of the consensus view has ever suggested that it does. If other panels started applying the new principles advocated by the Sesame 2 Panel we would be revisiting the discredited theory retroactive bad faith (among other dead ends). Permissive refiling is governed by rules.
As the Creo 2 Panel noted: “In order for such a refiled complaint to be entertained under the Policy, it is the refiling complainant’s burden to demonstrate that the refiled complaint constitutes ‘a truly new action’ under the Policy, and not just an application for re-adjudication of the previous complaint.” (Emphasis added). If panels started applying the new principles advocated by the Sesame 2 Panel (changing a “with prejudice” to a “without prejudice” or applying against an absent respondent a waiver of res judicata), it would cause havoc. Res judicata, except where the complaint qualifies for re-filing cannot magically be transformed into permissive refiling.
Notably, in the thousands of decisions that I’ve read, I have not found a Panelists ever say in dismissing a complaint that it is “with prejudice.” Why should they? A dismissal is implicitly and obviously “with prejudice” unless the Panel expressly states that it is dismissing the complaint on a “without prejudice basis.” There is simply no authority for a subsequent panel to accept a refiled complaint on a new theory that an absent respondent has waived it’s right to assert res judicata. Res judicata is not just a doctrine to be affirmatively asserted. It is also a principle upon which the UDRP was founded based upon common law principles and as such cannot be discarded, regardless of whether a respondent appears.
Moreover, why should a successful respondent be on the lookout for another notice from the provider? Finality to UDRP decisions absent subsequently taking them to court, is one of the features of the UDRP that contributes to its reliability and predictability.
Changing this, particularly without consensus would amount to an atmospheric disturbance to the jurisprudence and would in effect be introducing an ill-advised quasi-appeal mechanism of sorts to the UDRP. It would be ill-advised because no panel has authority to sit as an appellate judge to overrule a prior decision dismissed with prejudice. If an appellate procedure is ever adopted for the Policy, it will surely be for the appointment of a 3-member Panel as recommended in the same WIPO-ICA Report.
But such an appeal mechanism, even if the Policy were ever amended is not intended to extend authority to a subsequent panel to unilaterally re-hear a case.
Finally, WIPO denominates the 3rd edition as a “Jurisprudential Overview” which I take to be an acknowledgment that it is based on a consensus, that after 25 years of experience is a fixture in the firmament. While the Overview is not precedential, panels should be careful to stay within the tramlines of the consensus, for if they do not, there will be no predictability of outcome, which in any legal system is both desirable and expected.