We hope you will enjoy this edition of the Digest, as we review these noteworthy recent decisions:
‣ Co-Panelists: Private Research Undertaken by the Presiding Panelist Contaminated the Case (fordirect.com *with commentary)
‣ Short Acronym Domain Name Can Be Registered for Many Reasons Other than the Complainant (dagi.com *with commentary)
‣ Policy Allows Complainant to Proceed against Various Domain Names owned by the Same Registrant (guessportugalpt.com and more domain names *with commentary)
‣ Panelist Puts Fear of God into Counterfeiter: Offering of Counterfeit Goods Can Never Confer Legitimate Interests in the Domain Name (thefearofgod.net)
‣ Trademark Infringement Action May Provide Relief Where UDRP Does Not (schiedmayer.com)
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Co-Panelists: Private Research Undertaken by the Presiding Panelist Contaminated the Case
fordirect.com
Panelist: Ms. Reyes Campello Estebaranz (Presiding), Ms. Sandra J. Franklin and The Hon Neil Anthony Brown KC
Brief Facts: The Complainant was founded in 1903 and is a global automotive industry leader, manufacturing and distributing automobiles across six continents, with over 180,000 employees, over 9,000 dealerships, and with worldwide revenue of USD 127 billion in 2020. The Complainant’s products and services are marketed under the trademark FORD, as well as other brands, including FORD PROTECT, FORDDIRECT, and FORDDIRECT.com. The Complainant extensively and continuously used the FORD mark and the FORD Oval logo since 1940, and the FORDDIRECT and FORDDIRECT.com marks since July 2000.
The Respondent acquired the disputed Domain Name on March 7, 2013 and it is offered for sale at the Afternic platform for the sum of USD $9,746. The Complainant provides evidence that the disputed Domain Name was redirected to a website of a competing automotive manufacturer offering various vehicles of a different trademark, specifically the website nissanusa.com.
The Complainant alleges that the Respondent registered and uses the disputed Domain Name in bad faith with the intent to capitalize on the Complainant’s fame and reputation by creating a likelihood of confusion with its trademarks, in an attempt to increase the traffic of the Respondent’s site for a commercial gain. The Complainant adds that the offer to sell the disputed Domain Name for more than reasonable out of pocket costs (almost USD $10,000), and the use of a misspelling of the Complainant’s trademark, are further evidence of bad faith.
The Respondent contends that the disputed Domain Name has nothing to do with the Complainant’s trademarks, as “For direct” is a common and popular phrase, with 187 million results in Google; the disputed Domain Name is offered for sale at Afternic platform (for a minimum bid of USD $1,625), where it is simply listed for sale, not targeting anyone in particular. The Respondent further adds that to buy, sell, and park domain names is a bona fide business.
Preliminary Issue: It involves two proposed decisions prepared by the Presiding Panelist which recommend a finding in favour of the Complainant and it expresses a contrary opinion to both of those proposed decisions. The first of the two proposed decisions, called the “Final Version”, was to the effect that the Complainant should prevail and that the disputed Domain Name should be transferred to the Complainant. The second proposed decision sent by the Presiding Panelist to other members of the Panel, was described as the “Final Draft”, presumably meaning the final draft of numerous previous drafts of the decision. The decision reached in the “Final Draft”, essentially only an amended version of the Final Version removing references to the Presiding Panelist’s independent research was also to the effect that the Complainant should prevail and that the disputed Domain Name should be transferred to the Complainant.
Held (Majority Opinion): The final decision by the majority Panelist, proposes that the Panel’s work has been compromised by the use of private research by the Presiding Panelist that was not drawn to the notice of either party so that they could respond to it and either rebut it or support it and that this private research was pivotal to the Final Version and therefore pivotal to the Final Draft that was based on it. The parties were simply not told about it and had no opportunity to test it or reply to it with their own evidence. Moreover, all of the aforesaid research was directed at the Respondent alone and was used to deny the Response and enable the Complainant to prevail in the proceeding.
The private research undertaken was not justified and its use contaminated the entire Final Version. The UDRP makes it plain in paragraph 4 that a complaint must be “proved”, which means proved by “evidence”. It should not be necessary to spell out to anyone, particularly lawyers, that “evidence” means evidence adduced according to generally accepted principles and in particular so that it can be tested and rebutted. The so-called evidence used against the Respondent in this case was summoned up in private, without any notice and proposed to be used without either party having the opportunity to rebut it. Consequently, the opinion of the majority was and is that the Complaint should be dismissed and the disputed Domain Name should remain with the Respondent.
The Complainant should have liberty to file and serve a fresh complaint without prejudice if it wishes, so that a new panel can be formed that does not include any Panelist involved in the present proceeding.
Dissenting Opinion (Ms. Reyes Campello Estebaranz, Presiding Panelist): It is uncontroversial that panels may confirm the allegations, facts, and evidence submitted by the Parties, as may be useful to assessing the case merits and reaching a decision, in terms of section 4.8 of the WIPO Overview 3.0. This includes practice to refer to the website at the disputed Domain Name, Wayback machine and the previous UDRP decisions. Falling into these three practical categories, the performed searches pursued the mentioned purpose of ascertaining, as reasonably possible, the fairness and accuracy of the Panel decision. The search results confirmed the Presiding Panelist’s assessment of the Respondent’s intent and conduct as cybersquatting – a determination with which the majority does not appear to disagree – on account of a number of core factors including the well-known status of the Complainant’s mark; inclusion of the Complainant’s mark into the disputed Domain Name; the disputed Domain Name being misspelling of the Complainant’s mark; and the redirection of the website to the competitor.
For the foregoing reasons, the Presiding Panelist respectfully dissents from the decision of the Panel, and considers that this case should have been decided in favor of the Complainant ordering the transfer of the disputed Domain Name instead of unfairly burdening the Parties with the need of refiling.
Complaint Denied (with Dissenting Opinion)
Complainants’ Counsel: Kucala Law LLC, United States
Respondents’ Counsel: Zdenek Kubik, Czech Republic
Case Comment by ICA General Counsel, Zak Muscovitch:
Wow. Two panelists, Brown and Franklin, who have appreciably contrasting records when it comes to their respective backgrounds in adjudicating UDRP disputes, came together in unison, condemning the Presiding Panelist, for what they considered to be the Presiding Panelist’s improper use of her own “extensive private research” which “effectively add[ed] to one party’s case for them”.Panelist Brown in particular, went to considerable lengths to make the point that he was not objecting in principle to the notion of a panelist conducting limited private research, but rather such private research should not rise to the level of making submissions on behalf of one of the parties, particularly where the other party is not given an opportunity to address the panelist’s allegations against them before the decision is released. Panelist Brown noted that the Respondent would be deprived of natural justice, due process, and a fair hearing in a material respect, if the Presiding Panelist’s decision was not rejected – as it had tainted the entire process so severely that the Complainant should be permitted to refile its Complaint before a new Panel.
In her own defense, Panelist Reyes Campello Estebaranz, stated somewhat obliquely, that she “deplores the direction which the majority of this Panel have deemed fit to give to this case”, perhaps attempting to convey that embarrassment and umbrage which she must have undoubtedly felt as a result of the Majority’s express censure of her conduct in this matter. Panelist Estebaranz additionally pointed out that in her view she had done nothing more than performing searches of publicly available records in order to ascertain the accuracy of matters raised by the parties themselves in the record.
It is difficult for us to fully appreciate the matter at issue without recourse to the full record and in particular, to the Presiding Panelist’s own draft decision, which she unfortunately did not include in the case decision. One cannot help but think that had it been as eminently defensible and correct as she claims it to have been, that it would have been very helpful to include it in the case decision. Nevertheless, Panelist Brown has provided a detailed account of the specific instances which he believed amounted to an unfair degree of private research conducted by Panelist Estebaranz and these instances do appear to be concerning, particularly because they are of such a material nature that they likely ought to have been put to the Respondent. Had it only been a single panelist, Brown, which was so troubled by Panelist Estebaranz’s conduct, it would have been easier to put this down to a dispute between two reasonable panelists. But Panelist Franklin’s concurring opinion which though not as detailed or as vehement as Brown’s, nonetheless unequivocally chastised Panelist Estebaranz for conducting an unacceptably high level of “private research” which “effectively added to one party’s case for them”.
Panelists would naturally tend to make very effort to avoid such a public confrontation and the fact that we have nonetheless witnessed it, serves to demonstrate just how seriously the Majority took Panelist Estebaranz’s conduct, which they jointly believed rose to the level of requiring the dismissal of the case, despite the apparent merits of the Complainant’s claims. Indeed, Panelist Brown expressly stated that “when the facts are known, the Respondent [may have] registered and used the domain name contrary to the Policy”, but that the real issue is that the Presiding Panelist’s evidence against the Respondent “should have been brought to his notice so that he could rebut and qualify it and by that means have a fair opportunity to present his case”.
In the circumstances and even given our limited ability to appraise the case given we do not have the full record or the impugned draft decision of the Presiding Panelist, it seems to be inescapable that there was a profound divergence between the Majority and Minority’s views of what the proper remit of a UDRP Panelist is, particularly when it comes to private research and due process. Perhaps the right course of action here was for the Presiding Panelist to issue a Procedural Order providing the Respondent an opportunity to respond to her research and findings. But even that would seem to be a bridge too far given that the UDRP is generally understood to be an adversarial system between the parties where the Panelists are to be entirely neutral, standing on the sidelines, rather than making any substantial investigations themselves. Perhaps that is the point that Panelist Franklin was ultimately making; that “it was unnecessary and incorrect to conduct that level of private research”, particularly when it was “possible to decide the case without going outside of the record”.
I find this latter approach to be particularly attractive and just, because ultimately a Panelist is not charged with finding the truth. Rather, the Panelist has a much more modest duty; to decide a case based upon the evidence presented by the parties themselves. Where that evidence is found wanting, that is not the Panelist’s problem to solve, nor should they endeavour to. Nevertheless, drawing the line between conducting a little corroboratory research and investigating a party’s allegations can sometimes be difficult, and can vary depending on the panelist in question. It would be useful for some specific guidelines to be applied across all Panelists and providers in order to avoid confusion and outcomes like this. Nevertheless, even in the absence of any such guidelines, it is likely a good signal to a panelist that they may have crossed the line, if their two colleagues are prepared to write a Majority decision like this. Indeed, it is to the honour and credit of Panelists Brown and Franklin that they had the temerity to call out what they believed was a serious lack of due process that discredits the UDRP. Finally, I note that this is not the only recent minority approach adopted by Panelist Estebaranz. As noted and as commented upon in ICA Digest Volume 2.31 (August 9, 2022), Panelist Estebaranz also found herself to be in the minority with a controversial dissent in the Amadeus[.]co decision (with Panelists Maier and Limbury in the Majority).
Short Acronym Domain Name Can Be Registered for Many Reasons Other than the Complainant
dagi.com
Panelist: Mr. Nick J. Gardner, Mr. Emre Kerim Yardimci and Mr. Nicholas Smith
Brief Facts: The Complainant, founded in 1984, is a Turkish “ready-to-wear” clothing retailer having online presence at dagi.com .tr. The Complainant is the owner of a number of trademark registrations, including the stylized term “DAGİ”. The earliest subsisting Turkish trademark dates back to 2009, whereas the US trademark was registered on November 14, 2017. The disputed Domain Name was acquired by the Respondent on December 20, 2012 and currently links to automatically generated third party websites, however, none of these links relate to the Complainant. It appears that at times, it was available for sale at a price of USD $125,000, via Afternic.
The Complainant alleges that the Respondent adopted the disputed Domain Name, being aware of the well-known marks of the Complainant and hence is assumingly living in Turkey and speaks Turkish. The Complainant states that this is further supported by the fact that the disputed Domain Name was never put to any use but is offered for sale with an aim to gain unfair profits. The Respondent contends that it acquired the disputed Domain Name as part of a portfolio of other comparable four-letter Domain Names and that the word “dagi” has substantial significance and interest far beyond the Complainant. The Respondent further contends that the short, four-letter “.com” domain names are regularly bought and sold on the open market and fetch relatively high sale prices due to their rarity and attractiveness to a very wide range of prospective purchasers.
The Respondent seeks a finding of RDNH and adds that the Complainant attempted to buy the disputed Domain Name but did not disclose this fact in the Complaint. Hence, the Complainant brought this proceeding as a classic “Plan B” case.
Held: The Complainant’s entire case rests on the assumption that because the disputed Domain Name is identical to its well-known Turkish trademark, the person who registered the disputed Domain Name must be Turkish or speak Turkish. The Complainant completely ignored the fact that four-letter Domain Names may be intrinsically valuable globally and hence the disputed Domain Name could have been registered by a person unconnected with Türkiye. There are in fact persons and businesses outside Türkiye that use the term “dagi” as their name or part of their name or as an acronym, completely independently of any connection with Türkiye. The Respondent convincingly demonstrates that it acquired the disputed Domain Name on December 20, 2012 as part of a portfolio of other four letter domain names.
In the circumstances, the Panel considers that the Respondent did not register the disputed Domain Name with knowledge of the Complainant’s trademark nor with the intention of taking unfair advantage of that trademark and cannot therefore have registered it in bad faith for the purposes of the Policy. Lastly, offering for sale a legitimately held domain name is not per se a bad faith use. Although in some circumstances asking a very large price may give rise to an inference of bad faith registration and use, the Panel does not consider that to be the case here, given the lack of any evidence casting any doubt on the Respondent’s account of why it registered the disputed Domain Name. It may well be the case that the Complainant would like to own the disputed Domain Name and finds itself at a disadvantage if it cannot, but these are not reasons supporting a finding of bad faith.
RDNH: This complaint should never have been launched. The Complainant is professionally represented in this matter and should have appreciated that establishing registration and use in bad faith in respect of a domain name which had first been registered many years previously and which was a four-letter acronym was likely to involve difficult considerations. It should have been apparent that an argument that because the Complainant’s trademark was well known in Turkey, that the Respondent must be a Turkish speaker who knew of the Complainant was simply not the only possibility. The obvious fact was that a four-letter domain name could have been registered by many people for many reasons, none of which had anything to do with the Complainant. Given the nature of the Policy and the multiplicity of previously decided cases dealing with similar issues in relation to short acronym type domain names where there was a lack of targeting of the complainant’s mark, this was a case that had no reasonable prospects of success.
The Panel is also concerned by the evidence that the Respondent made available as to the Complainant having likely tried to buy the disputed Domain Name. The Panel thinks it more likely than not that these offers were all made on behalf of the Complainant. The Panel further agrees with the Respondent that the Complainant cannot have properly certified that “the information contained in this Complaint is to the best of the Complainant’s knowledge complete and accurate” in circumstances where it did not disclose that it was prepared to pay USD $50,000 to purchase the disputed Domain Name and threatened to “take the legal route” if this offer was declined. The Panel also agrees with the Respondent that the approach set out in BERNINA International AG v. Domain Administrator, Name Administration Inc. (BVI), supra is applicable: In the Panel’s view, this is a classic “Plan B” case, i.e., using the Policy after failing in the marketplace to acquire the disputed Domain Name. This stratagem has been described in several earlier UDRP cases as “a highly improper purpose”, resulting in findings of RDNH.
In all the circumstances, the Panel agrees with the Respondent that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.
Complaint Denied (RDNH)
Complainants’ Counsel: Grup Ofis Marka Patent Inc., Türkiye
Respondents’ Counsel: Muscovitch Law P.C., Canada
Case Comment by ICA General Counsel, Zak Muscovitch:
I represented the Respondent in this case. Nevertheless, I believe that this case is instructive on a particular point. Some panelists believe that they can disregard evidence of third party use of a mark because it is not determinative of whether or not the respondent targeted the Complainant. In other words, just because there may be a dozen other users of a mark corresponding to the domain name, does not mean that the respondent did not register the domain name with the particular complainant in mind and thereby specifically targeted the complainant. This view is true, but only very generally, as it can inadvertently discount the genuine import of evidence of third party usage of a mark.At the heart of the UDRP is targeting. In this case, the Respondent introduced substantial evidence of extensive third party use of DAGI and as noted by the Panel, asked rhetorically: “In light of all of these third party uses of the term, how can the Complainant credibly say, without evidence, that it was the reason for the registration?” Such is an instance where third party usage can be crucial in helping a Panel determine if the complainant was genuinely the target of the registration, or whether it is merely one amongst many users of the term such that the term is widely attractive and has value independent of the particular Complainant. Where the evidence demonstrates that there is so much third party use that it is more likely than not that the respondent registered the domain name for a reason other than the complainant, a complaint may be dismissed. As the Panel astutely noted based upon the substantial evidence of third-party use which was presented, “The obvious fact was that a four-letter domain name could have been registered by many people for many reasons, none of which had anything to do with the Complainant. Reasonable enquiries would have quickly established this was likely the case.”
Policy Allows Complainant to Proceed against Various Domain Names owned by the Same Registrant
guessportugalpt.com, guessargentinaoutlet.com, guessslovensko.com, guessslovakia.com, guessreduceri.com, guessbolt.com and guess-danmark.com
Panelist: Mr. Debrett G. Lyons
Preliminary Issue: The Policy allows a Complaint against more than one domain name, provided that the Domain Names are registered by the same domain name holder. Any arguments alleging the Respondent aliases must be included in the Complaint for Panel consideration. The Complainant’s exhibit shows resolving web pages from only six of the seven disputed Domain Names. Of the six shown, not all are the same. The Panel found this material to be insufficient evidence to link the alleged aliases. The Panel observes that the named respondent, Web Commerce Communications Limited, is the holder of five of the seven disputed Domain Names, being: guessargentinaoutlet.com; guessslovensko.com; guessslovakia.com; guessreduceri.com; and guessbolt.com. Taking the position most favourable to the Complainant, the Panel determines that the Administrative Proceedings should continue against Web Commerce Communications Limited in respect of the Relevant Domain Names. The Complaint is dismissed with respect to guess-danmark.com and guessportugalpt.com.
Brief Facts: The Complainant conducts an international business selling clothing and fashion accessories by reference to the trademark, GUESS, which is the subject of, inter alia, registration dated March 17, 1987 before USPTO. The Relevant Domain Names were all created in 2022 and resolve to webpages which offer clothing for sale. The Complainant provides screenshots of the resolving websites which are said to display counterfeit goods and use product and model images belonging to the Complainant. The Complainant alleges that there is no association between the parties and the Complainant did not authorize the Respondent to use its trademark or register any Domain Name incorporating its trademark. The Respondent did not file any response.
Held: The Panel agrees that the addition of country names (slovensko or slovekia) or the addition of commonly understood descriptive words (outlet or reduceri) generally does nothing to distinguish a domain name from a trademark. However, there are no submissions in respect of the fifth Domain Name guessbolt.com or the term “bolt”, which is having a common, dictionary meaning in English – disconnected in every sense with the trademark and Complainant’s business – and so, absent submissions as to any other meaning that might be attributed to it, the Panel finds that the simple combination of the two, ordinary, English language words “guess” and “bolt” is so arbitrary as to overshadow the trademark significance of the word, “guess”. Therefore, the Panel finds that the Domain Name guessbolt.com is not confusingly similar to the trademark and the Complaint fails in relation thereto.
The products upon the websites resolving on the remaining disputed Domain Names display products belonging to the Complainant. Whether or not the goods are counterfeit makes no difference since the Panel finds in either case that the Respondent has no rights or legitimate interests in the Remaining Domain Names. Clearly, the sale of counterfeit products does not constitute a bona fide offering of goods or services or a legitimate non-commercial or fair use of a disputed Domain Name under the Policy. Alternatively, the trademark has been used without permission and the Respondent has not shown itself to be an authorized reseller of Complainant’s branded goods. The Panel finds that the Respondent intentionally used the names to attract, for commercial gain, internet users to its website by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of that website by implying to internet users that they will reach a site either operated by the Complainant or someone affiliated with the Complainant.
Transfer (Denied in Part)
Complainants’ Counsel: Gary J. Nelson of Lewis Roca Rothgerber Christie LLP, California
Respondents’ Counsel: No Response
Case Comment by ICA General Counsel, Zak Muscovitch:
This case is instructive on the utility and the limitations in bringing a Complaint against numerous domain names that may be controlled by the same person. The Panel in this case deserves credit for scrupulously distinguishing those domain names that were properly the subject of the Complaint and those that were not, either because the evidence did not sufficiently establish a link between the registrants or because the domain name itself was not confusingly similar.
Panelist Puts Fear of God into Counterfeiter: Offering of Counterfeit Goods Can Never Confer Legitimate Interests in the Domain Name
thefearofgod .net
Panelist: Mr. David Taylor
Brief Facts: The US Complainant, since 2011, operated a lifestyle brand designing luxury street wear and accessories. It operates online at fearofgod.com, from which it operates an online store, shipping to customers in the United States and internationally. The Complainant owns a number of trademarks for FEAR OF GOD that includes the earliest trademark registered on March 12, 2019 before the USPTO. The disputed Domain Name was registered on May 17, 2022, resolves to a website purporting to offer for sale products bearing the Complainant’s FEAR OF GOD trademark at discounted prices.
The Respondent’s website displays product images that appear to have been copied from the Complainant’s website, and lists a physical contact address in Denver, Colorado, United States. Certain sections of the Respondent’s website contain “Lorem ipsum” placeholder text. The registrant did not file a formal response but sent an informal communication, stating: “I received a written notice of a complaint to my new home address, but I have never heard of the listed website and I do not own any domain names. Is there any action needed on my part or can my address be removed from this case?”
Held: Both the Complainant’s registration and use of its FEAR OF GOD trademark predate the Respondent’s registration of the disputed Domain Name. In this instance, the Respondent’s actual knowledge of the Complainant and its rights in the FEAR OF GOD trademark may be inferred from the contents of the Respondent’s website, which make direct reference to the Complainant in the furtherance of what appears to be an online offering of counterfeit goods. Given that the use of a Domain Name for per se illegitimate activity, it can never confer rights or legitimate interests on a respondent as such behaviour is manifestly considered evidence of bad faith. The Panel finds that the Respondent registered the disputed Domain Name with a view to illegitimately trading off the Complainant’s FEAR OF GOD trademark, in bad faith.
In addition, the disputed Domain Name was registered behind a privacy service masking the registrant’s identity, and while the underlying registrant was disclosed by the Registrar as being located in Pakistan. However, the Respondent’s website lists a physical contact address located in Denver, Colorado, United States. The Panel infers from the third-party communication received by the Center that the Respondent made unauthorized use of a third-party United States address in order to lend a veneer of authenticity to the Respondent’s website. In the circumstances, the Panel finds there is a risk that the goods offered for sale via the Respondent’s website are counterfeit, and at minimum the website is clearly intended to (and does) impersonate or falsely suggest affiliation with the Complainant.
Transfer
Complainants’ Counsel: Sheppard, Mullin, Richter & Hampton, United States
Respondents’ Counsel: No Response
Trademark Infringement Action May Provide Relief Where UDRP Does Not
schiedmayer.com
Panelist: Mr. David P. Miranda, Esq.
Brief Facts: The Complainant, a provider of piano/celestas, owns rights in the SCHIEDMAYER mark through its registration on May 24, 2022 with the USPTO, with a claimed priority date of October 17, 2014. The disputed Domain Name was registered on August 24, 2002. The Complainant alleges that the Respondent registered the disputed Domain Name in order to disrupt Complainant’s business, it resolves to a page previously offering competing goods and now negative information about the Complainant’s legal proceedings with the Respondent. The Respondent contends that it uses the disputed Domain Name for a bona fide offering of goods or services or legitimate non-commercial or fair use, as the disputed Domain Name is used to complain about the actions of the Complainant.
Held: The use of a disputed Domain Name to offer competing goods or services, disruption of a complainant’s business and an attempt to attract users for commercial gain can be evidence of bad faith under the Policy. However, the Complainant is basing its trademark rights on its USPTO registration, claiming a priority date of October 17, 2014, and the Respondent registered and used the domain at issue since August 24, 2002. Since the Respondent’s registration of the disputed Domain Name predates Complainant’s first claimed rights in the SCHIEDMAYER mark, the Complainant cannot prove registration in bad faith in terms of the Policy, as the Policy requires a showing of bad faith registration and use.
It should be noted that UDRP proceedings have very narrow and specific rules that are different from the analysis in an action for trademark infringement. This decision makes no determination regarding the viability of a trademark infringement action by the Complainant and does not prevent the Complainant from bringing a trademark infringement action seeking further relief, including recovery of the disputed Domain Name.
Complaint Denied
Complainants’ Counsel: Robert S. Broder of Collard & Roe, P.C., New York, USA
Respondents’ Counsel: Adam R. Stephenson, Arizona, USA