I may be wrong on this. But, when it was pointing to Dell products in the Amazon marketplace, it was increasing Dell's popularity and presence, and who might know, many people might have bought Dell's products through Amazon using his link, which means good business to Dell. And he was getting his share on affiliate sales. All the 3 parties involved should be happy. I don't understand what made Dell be so upset about it.
While what you say makes common sense, and I agree, that is not how the UDRP rules and precedents view it. It does seem strange, that after doing nothing for year after year, they launched this. I suspect there was some reason we do not fully know.
Re your point that they make money off it so what is the problem, it was set up, allegedly, so that at least now and then it went to a Dell affiliate page and at other times a competitor page (HP). However the ruling pointed out that even if it went always and only to the complainant (Dell) site it still would not constitute legitimate use unless Dell controlled it.
"Likewise, using a confusingly similar Domain Name in a manner over which a complainant has no control does not qualify as a bona fide offering of goods or services for the purposes of Policy ¶ 4(c)(i) or as a legitimate noncommercial or fair use for the purposes of Policy ¶ 4(c)(iii), even if it resolves to the complainant’s own web site."
(i.e. pointing a domain name to a TM holders site does not amount to legitimate use of the domain name).
Just to review the 3 requirements of any UDRP.
(1) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(3) the Domain Name has been registered and is being used in bad faith.
In this case the decision is that
(1) was satisfied because DRLL is confusingly similar to Dell in their mind, citing as the precedent that OmahaSteaks (a TM) and OmahaStecks.com (a domain) were confusingly similar. So the new precedent that future panels can use is that DRLL and Dell are confusingly similar.
In the case of (2) the panelist decided, as other previous UDRP panels have, that
by not responding to the UDRP that the condition for (2) was met essentially without any further proof. Incidentally, to my knowledge there is no confirmation that the notice even got to the domain holder. Was he away for an extended period? In a medical emergency? etc. for the 20 days? The notice was sent by email and post. There could be bona fide reasons for no response, and at least one other UDRP moved a domain name when in fact the 18 year long owner had never received the notice due to world travel and an old email address (after a legal battle the courts reversed that decision). Now it is probable that he just saw it as hopeless but I do not think any of us know that.
So that left
(3) registered and used in bad faith. The discussion there is very long, and although UDRP have 4 ways it might be proven, that is a non-exclusive list so essentially panels have some freedom. While arguing that some of the ways of looking at it were not bad faith, in the end they argued that at the time of registration the similarity must have been known, partly supported by the fact that at least occasionally it directed people to Dell or its competitors. From what is in the written report it is not clear to me at least whether the direction to Dell and competitors came from a deliberate setting that as forwarding or simply sometimes the professional parking that was employed for years naturally directed visitors to those sites. It is not clear that more than one case of each was proven, although there probably were many more. It shows the danger of parking that you do not control where the ads may take the person.
I am sorry to write at such length but there was earlier complaint that I was focussing on one of the three factors.
I'm a little bit lost on why you keep focusing on one element of the judgement
The reason I do that is it seems to me going from OmahaSteaks case to DRLL was a huge change in precedent that any UDRP panel going forward can cite. It is something domain owners should at least take notice of. The other two elements in this case (no response means 2 is proven and targeted ads are bad faith) seemed in so many other previous cases that I did not see the need to write much about them. Anyway, that is my answer.
It seems to me that there is a steady rise in
UDRP cases per year. While one might interpret this as more domain names or more abuse of domain names, another interpretation is that each time a UDRP panel widens an interpretation it leads to more cases that would not otherwise come forward.
Just as the BCG case earlier this year (a URS rather than UDRP strictly speaking) seemed a huge widening of interpretation, that other domain bloggers wrote about at the time, this seems a similar case to me. I do accept as a good point the argument made by
@BaileyUK that there should not be a firm line in number of characters to be exempt.
But what are the panelists supposed to do, ignore four letter domains, Make three letters strictly out of bounds also. Why not push it to five letters.
To me the two words DRLL and Dell are not similar enough, but clearly the panelist decided otherwise.
Bob
