UDRP UDRP if a domain is in escrow/payment plan?

[Embrand]

I was just wondering what happens if a domain is hit with a UDRP while it is in escrow or under a payment plan where the escrow service/payment plan provider according to the Whois is the one in control of the domain at the time of the UDRP?

Who will be considered the legal registrant/respondent? Does anyone know any examples of this? With payment plans becoming more popular, I could imagine more cases like this will show up.

 

[cyberlawyer]

Kindly refer the UDRP matter of <tilt.com> [NAF Claim Number: FA2109001964944] here, wherein the Domain Name was under Escrow while it got hit by a UDRP:

The Panel is conscious of the possibility that a bad faith participant in the Domain Name System may seek to avoid the consequences of a UDRP proceeding by transferring the Domain Name to a third party agent to hold the Domain Name, however such a slippery slope argument does not make it appropriate to make a finding that a Respondent who acquired a Domain Name on a temporary basis, solely to provide an escrow service, has acquired the Domain Name in bad faith. Furthermore, in such cases, Panels have and will continue to exercise their judgement as to whether the named respondent, be it a privacy service, third party agent or other entity, is acting in bad faith as an agent of a bad faith participant, or (as in the present case) acquired the Domain Name in order to provide a legitimate escrow service.

The Panel notes the unusual nature of the present proceeding, and that the proceeding may have had a different outcome had the proceeding commenced against the intended seller or purchaser of the Domain Name, rather than at the precise time where the Domain Name was being held in escrow. In the event that further information arises that suggests the motives of Respondent acquiring the Domain Name was to protect the previous owner of the Domain Name from the consequences of a decision under the Policy, or if the Domain Name is transferred from Respondent, either to the earlier registrant, or to a third party who (based on the publication of this decision alone) may acquire the Domain Name in awareness that the Domain Name had been hijacked from Complainant, there may be grounds to consider a refiled complaint, subject to the applicable criteria.

 

[Embrand]

Kindly refer the UDRP matter of <tilt.com> [NAF Claim Number: FA2109001964944] here, wherein the Domain Name was under Escrow while it got hit by a UDRP:

Thank you. Very interesting. I guess these cases could get messy depending on the exact circumstances.

 

[jberryhill]

It has happened quite a few times..

kite.com
https://www.adrforum.com/domaindecisions/1609855.htm

Complainant has alleged that the entity which controls the domain name at issue, and is the proper respondent, is Brandon Abbey / Escrow.com. The submissions in response to the complaint were on behalf of Carl D. Crowell, an individual; Escrow.com, a Delaware corporation; and Manhattan Engineering Incorporated, a Delaware corporation. Respondent claims that ownership of the disputed domain name belongs to Carl D. Crowell, who leased the domain name to Manhattan Engineering Incorporated (“MEI”). Respondent argues that while MEI maintains sole control over the disputed domain name, Carl D. Crowell is still the owner of the disputed domain name until the final payments are made, at which point MEI has the option to buy the disputed domain name, and MEI would not become the actual owner of the disputed domain name until 2018. During the pendency of the lease, title to the domain name is held by an escrow agent, Respondent Escrow.com.


Other examples of either leased or lease-to-own domains subject to UDRP's

fiesta.com
https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2015-0080

It appears that the Respondent acquired the disputed domain name as part of a leaseback financing deal concluded with the previous owner of the disputed domain name before knowledge of the present dispute. Such deal was most likely based on the potential value of the disputed domain name, which is comprised of a common generic Spanish word.

Hostess.com
https://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1357.html

uax.com
https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2019-2925

The recent canvas.com litigation also involved a domain name which was the subject of some kind of structured payment arrangement.

Obviously, anything that is the subject of a lease, payment plan, or mortgage can be the subject of a legal dispute or other loss, and that is by no means confined to domain names. With things like vehicles and houses, there is a well developed system of title and liability insurance. That is not really possible with domain names due to the problem of risk selection.

It is important that any payment plan or lease take into account what sorts of things may happen during the course of performance and who bears the risk of loss. Of course if the lessor/purchaser is to remain liable for payment in the event of loss, then that provision is only as good as their ability to pay.

There are various ways to structure risk and responsibility, which is why a "one size fits all" contract may not be the best fit for any particular situation.

 

[Gabriel360]

Kindly refer the UDRP matter of <tilt.com> [NAF Claim Number: FA2109001964944] here, wherein the Domain Name was under Escrow while it got hit by a UDRP:

A strange case.

Domain was STOLEN from the complainant's account and the complaint was still DENIED.

Very strange.

Plus, prior to filing of the case the respondent was willing to transfer the domain but wanted compensation for his efforts.

AirBnB refused and then had their complaints denied.

It's interesting. The domain name still doesn't resolve at the moment.

 

[Embrand]

It has happened quite a few times..

kite.com
https://www.adrforum.com/domaindecisions/1609855.htm

Complainant has alleged that the entity which controls the domain name at issue, and is the proper respondent, is Brandon Abbey / Escrow.com. The submissions in response to the complaint were on behalf of Carl D. Crowell, an individual; Escrow.com, a Delaware corporation; and Manhattan Engineering Incorporated, a Delaware corporation. Respondent claims that ownership of the disputed domain name belongs to Carl D. Crowell, who leased the domain name to Manhattan Engineering Incorporated (“MEI”). Respondent argues that while MEI maintains sole control over the disputed domain name, Carl D. Crowell is still the owner of the disputed domain name until the final payments are made, at which point MEI has the option to buy the disputed domain name, and MEI would not become the actual owner of the disputed domain name until 2018. During the pendency of the lease, title to the domain name is held by an escrow agent, Respondent Escrow.com.


Other examples of either leased or lease-to-own domains subject to UDRP's

fiesta.com
https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2015-0080

It appears that the Respondent acquired the disputed domain name as part of a leaseback financing deal concluded with the previous owner of the disputed domain name before knowledge of the present dispute. Such deal was most likely based on the potential value of the disputed domain name, which is comprised of a common generic Spanish word.

Hostess.com
https://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1357.html

uax.com
https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2019-2925

The recent canvas.com litigation also involved a domain name which was the subject of some kind of structured payment arrangement.

Obviously, anything that is the subject of a lease, payment plan, or mortgage can be the subject of a legal dispute or other loss, and that is by no means confined to domain names. With things like vehicles and houses, there is a well developed system of title and liability insurance. That is not really possible with domain names due to the problem of risk selection.

It is important that any payment plan or lease take into account what sorts of things may happen during the course of performance and who bears the risk of loss. Of course if the lessor/purchaser is to remain liable for payment in the event of loss, then that provision is only as good as their ability to pay.

There are various ways to structure risk and responsibility, which is why a "one size fits all" contract may not be the best fit for any particular situation.

Thank you. Very informative as always. I didn't know that Escrow.com had been a respondent in a case. I guess I should actually read the small print next time I use a payment plan...

 

[Embrand]

A strange case.

Domain was STOLEN from the complainant's account and the complaint was still DENIED.

Very strange.

Plus, prior to filing of the case the respondent was willing to transfer the domain but wanted compensation for his efforts.

AirBnB refused and then had their complaints denied.

It's interesting. The domain name still doesn't resolve at the moment.

Yes, it does seem a bit weird.