UDRP You Make the Call #3 - Because.com

[jberryhill]

Thoughts?

 

[jberryhill]

 

[Leo2k]

They can't claim it because the respondent wants because.
Company was founded in the year 2005 whereas domain was registered in the year 1995.
Can't this be called reverse domain hijacking since it's not a creative word but commonly used dictionary word?
Even if not, unless the domain was used to make use of their business or sell similar products they have no rights over the domain.
Am I right?

 

[DomainNature]

The most stupid UDRP 'because' it is really stupid.

 

[Jannes]

the complainants don't appear intelligent enough to register (or to have registered) because.music

 

[biggie]

Hi

it just says complaint denied @ wipo.int

imo...

 

[jberryhill]

it just says complaint denied @ wipo.int

Aw, shoot, they didn't used to publish the outcome until the decision was posted, and that usually takes at least a day.

 

[Future Sensors]

Aw, shoot, they didn't used to publish the outcome until the decision was posted, and that usually takes at least a day.

Perhaps they have done it differently this time, just because

 

[cooljub]

Notre service vous conseille, vous assiste et vous représente pour protéger vos marques et vos modèles en France et dans tous les pays du monde, avec le concours de correspondants hautement qualifiés.

 

[jberryhill]

https://domainnamewire.com/2024/04/16/because-com-cybersquatting-claim-denied/

The fact that the Complainant itself paid five figures to buy the dictionary word domain on the aftermarket makes it hard to argue that a later buyer of the domain name bought the domain to target the Complainant’s specific trademark.

What's really crazy about that, @cooljub , is that Because.fr is not the Complainant.

Yep. French trademark owner going after the .com, when they don't have the .fr.

 

[MariaEl]

https://domainnamewire.com/2024/04/16/because-com-cybersquatting-claim-denied/

The fact that the Complainant itself paid five figures to buy the dictionary word domain on the aftermarket makes it hard to argue that a later buyer of the domain name bought the domain to target the Complainant’s specific trademark.



What's really crazy about that, @cooljub , is that Because.fr is not the Complainant.

Yep. French trademark owner going after the .com, when they don't have the .fr.

Hi, congratulations again, Mr. @jberryhill ..

Just as a side note, as I read the article your post links to, a little speculation on what may have happened to the domain in December, 2021: perhaps someone from inside Complainant had access to renewal and performed it but to his/her own benefit (just a hypothesis). I think some businesses often do not fully realize their domains are assets too, until they lose them.

 

[Chris Hydrick]

What's really crazy about that, @cooljub , is that Because.fr is not the Complainant.

Yep. French trademark owner going after the .com, when they don't have the .fr.

It seems either the complainant or complainants council may be mistaken about the factual timeline.

The Complainant was the owner of the disputed domain name until December 31, 2021, when the disputeddomain name was not timely renewed.

As Andrew noted in the DomainNameWire.com article:

DomainTools shows a Whois record on October 29, 2021, with Network Solutions as the registrar and a registrar expiration date of December 3, 2021. The next record is on December 5, showing an update date of December 3, two years added to the registration, and the domain at GoDaddy.

If Because.com was at GoDaddy.com as early as December 5th 2021, then it doesn't seem factually possible that the complainant held this domain until December 31st 2021.

...

It appears that the complainants strategy of recovering this domain centered around the commonly confused notion that stolen domains can be recovered via UDRP/WIPO. The notion of when a UDRP/WIPO can recover a stolen domain also confuses me, but I guess it has something to do with IP rights / trademarks, which is probably why the complainant cited trademarks.

I only read the dispute PDF that was listed on DomainNameWire.com, so I'm not sure if I'm missing anything. Assuming if the complainant is of the belief that they lost the domain due to expiration, then I guess that means a police report was never filed alleging a stolen domain?

To be clear, I am not confirming this domain was stolen. Simply pointing out how the factual timeline of events doesn't seem to match the timeline in the complaint.

If I were the complainant, I'd investigate unauthorized account activity, and attempt to account for any unauthorized historical domain changes, such as:

 

[jberryhill]

Assuming if the complainant is of the belief that they lost the domain due to expiration

That is indeed what the Complainant certified to have happened. The Respondent purchased it on Sedo.

 

[Chris Hydrick]

That is indeed what the Complainant certified to have happened.

Yes, but was it certified by the panelists?

I'd guess some folks may incorrectly assume that panelists receive/review the technical details surrounding a disputed domain, such as registration, transfer, renewal, or expiration dates to ensure case accuracy.

From the dispute PDF:

The Complainant was the owner of the disputed domain name until December 31, 2021, when the disputed domain name was not timely renewed.

Which leaves at least three possibilities:

1) Complainant incorrectly assumed the domain was lost due to the expiration date.

2) The historical records are errors, and the Complainant did in fact own this domain until December 31, 2021 but lost it due to not timely renewal.

3) Complainant forgot they sold the domain... perhaps sold on January 1, 2022 which is one day after the complainant claimed ownership?

One of those scenarios seem more likely than the other.

The Respondent purchased it on Sedo.

Which means Sedo should have a record of paying out whomever the respondent purchased the domain from.

 

[Chris Hydrick]

Which leaves at least three four possibilities:

4. Inside Job?

speculation on what may have happened to the domain in December, 2021: perhaps someone from inside Complainant had access to renewal and performed it but to his/her own benefit (just a hypothesis).

 

[Jannes]

5. Karma

An example of their company ethos:
https://newpipe.net/blog/pinned/announcement/newpipe-net-dmca-google-search/
https://news.ycombinator.com/item?id=36682509

 

[jberryhill]

Yes, but was it certified by the panelists?

There is a difference of opinion among panelists about whether they should do their own research. But, more importantly, the point in question is not relevant to anything that is required to be proven under the UDRP.

The Complainant stated in the Complaint that they didn't pay the renewal. They are better positioned than anyone else in the world to know what they paid or didn't pay. Certainly the Respondent, who bought the name on Sedo and had proof of that, is not in a position to know what bills the Complainant did or did not pay long prior to having bought the name.

Whatever else may have gone on at Netsol, within the Complainant's organization, with their outside IT contractor, etc., is simply not germane to the dispute between the Complainant and the Respondent. That dispute - i.e. the UDRP case - is over whether the Respondent acquired and used the domain name on account of the Complainant's trademark, or whether the name was purchased because of its value as a dictionary word.

If someone comes to me or pretty much any other professional in this business and claims their domain name was misappropriated, you bet, among the first things I ask the client is to show me the payment receipt for the renewal, just to make sure that point is nailed down. Sometimes, what they'll show me is a payment to a bundled service provider, like a consultant, for a roster of services. The next step is to get that service provider to show me the actual payment made to the actual registrar to renew the domain name. Most businesses have pretty good records of what they paid or didn't pay, particularly when they have an employee or outside contractor whose job it is to pay those bills.

More often than not, people will claim their domain name was stolen when, in fact, they had not paid the bill. It is very unusual for someone to claim they didn't renew a domain name when, in fact, they had. If you wake up in the morning and your car is missing from the driveway, then you might want to first make sure you are current on the payments and that the checks have cleared.

The Complainant also alleged to have worked with a list of recording artists. I don't think anyone checked that out either.

 

[Chris Hydrick]

There is a difference of opinion among panelists about whether they should do their own research.

If ICANN assigns WIPO/UDRP as the defacto dispute arbriter, I think it's critical that the panelists be privy to the relevant domain logs directly from the registry or maybe even certain information from the registrar.
Though, IDK how registry domain logs seperate from registrar domain logs.

Pros: Accurate Domain Timeline
Cons: Reveals private information?

It just seems if these cases are being cited in other cases, that a certain level of accuracy should be ensured. Especially on the technical level to which it seems complainants and plaintiffs are left to rely on 3rd party services such as domainTools, and other historical recording services. For the panelists to have to rely on the plaintiff/complainant research, and not have the official technical records to confirm or deny the alleged chain of events seems obsurd!

But, more importantly, the point in question is not relevant to anything that is required to be proven under the UDRP.

The Complainant stated in the Complaint that they didn't pay the renewal. They are better positioned than anyone else in the world to know what they paid or didn't pay.

It seems the complainant was poorly advised. Had the Complainant had a competent and experienced domain lawyer, they would have researched/confirmed/theorized if, how, and why the domain renewal went unpaid.

Whatever else may have gone on at Netsol, within the Complainant's organization, with their outside IT contractor, etc., is simply not germane to the dispute between the Complainant and the Respondent. That dispute - i.e. the UDRP case - is over whether the Respondent acquired and used the domain name on account of the Complainant's trademark, or whether the name was purchased because of its value as a dictionary word.

I guess that explains when to use, and when not to use the UDRP/WIPO system to attempt to retrieve a lost domain.

If you wake up in the morning and your car is missing from the driveway, then you might want to first make sure you are current on the payments and that the checks have cleared.

This might not be their primary car, it may be their second car which they pay a yearly fee to have stored in a garage away from their home.

Spoiler: Car questions

- What evidence did the garage give the car owner to confirm the car was in their garage until December 31st?

- Did the garage tell them that they lost their car due to not paying the yearly renewal?

- How does the owner normally pay the yearly fee?

- If autorenewal, why didn't it autorenew?

- When did the owner notice autorenewal fee wasn't processed?

- If the garage told them they don't know anything about a repossession, that somebody with their keys authenticated the car and transferred the parking service to another garage:

- How did the owner come to the conclusion that the car was parked in the garage until December 31st, 2021?

- Did the car owner wait three years to attempt to recover their car by claiming forever ownership through signing their name on the dashboard and inside the glovebox because they weren't aware of forever ownership until they saw a tiktok video?

- Why wouldn't the lawyer tell the car owner that writing their name on the headrest and inside the glove box doesn't mean they can bypass paying garage fee's and recover the vehicle by suing whomever the vehicle was eventually sold to in a trademark/IP arbitration?

- Why wouldn't the lawyer do the research and verify if the garage did or didn't repossess the car due to lack of storage payment?

- Did the car owner intentionally lie about the garage repossessing/selling their vehicle because they didn't want to file a police report and press charges against whomever authenticated the car by having possession of the title and transferred it to another garage?

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... Thank you @jberryhill for the learning discussion!

 

[jberryhill]

I think it's critical that the panelists be privy to the relevant domain logs directly from the registry or maybe even certain information from the registrar.

Some years ago, DomainTools had offered WIPO access to their system for domain panelists. I don't know if they still do that or not.

But, a great number of domain panelists really don't know much about the nuts and bolts of domain registry/registrar processes. These are primarily trademark disputes, about which the panelists know a great deal more. Here's a swath of currently-pending cases at WIPO:

...

I haven't looked at any of those in detail. There are, maybe, one or two in there that *might* have a defense of some kind. For example, "Ostrum" is a surname, so you might want some facts about what was going on with the name, etc..

But most of them are straight-up cybersquatting, for which you wouldn't need a whole lot of data.

What do you think is going to happen with accorhospitality-paris2024.com? And if you aren't sure, Google "Accor", then answer the question.

If you read domain industry news and blogs, you get a distorted view of what the everyday reality of the UDRP is like. The "interesting cases" are few and far between.

Had the Complainant had a competent and experienced domain lawyer, they would have researched/confirmed/theorized if, how, and why the domain renewal went unpaid.

Or, simply asked their client, "Do you have a payment record for the renewal?" and gotten the answer "No." Businesses are usually pretty good at knowing what they paid and what they didn't. What then? Get out the whips and chains on their own client to make sure they really don't have a payment record?

Even so, I don't know what that brings to the table. When a name is hi-jacked, most of the time, the "registrar data" will show that all relevant authorizations were obtained, since the compromise is usually the admin email address and well outside of the registrar's control. One of my first cases for Frank Schilling involved a party which did claim to pay the domain renewal, but the payment was not applied by the registrar.

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Snowboards-for-sale.com, Inc. v. Name Administration Inc.
Case No. D2002-1167
https://www.wipo.int/amc/en/domains/decisions/html/2002/d2002-1167.html

Respondent is not shown to have done any more than to register a generic domain name that was available for registration and use it in connection with goods which the domain name describes. The record does not establish that Respondent had knowledge of Complainant or intended to disrupt its business.

Whilst the Panel is sympathetic to the plight of Complainant in light of the evidence in the record indicating that the disputed domain name was made available for registration after Complainant's renewal payment apparently was paid and after Complainant was informed that its registration had been renewed, Respondent is not shown to have been responsible for that conduct. The propriety of that conduct and the extent, if any, to which legal avenues outside the Policy may be available to address those circumstances are not issues this Panel is able to address under the Policy.
----------

Think about what you were doing in January 2003. This UDRP response is actually one of three that I've written aboard a train. I had just wrapped up doing some patent searching at the USPTO, was on Amtrak from DC to Wilmington, and wrote most of it on that trip. There are some that stick with you.

But, again, what would the Panel having access to the registrar data have brought to the table in that dispute?

There was a period of time where WIPO, upon notifying the registrar of a UDRP dispute, would ask additional questions beyond merely a request to lock the name and provide registrant contact data. Out of concern over how long the registrant held the domain name, WIPO was asking registrars to also provide information about when the registrant acquired the name.

The problem there is twofold. First, a registrar might not know. If you registered a name at Enom in 2010 and moved it to GoDaddy in 2022, then all GoDaddy knows is that you registered the name in 2022, which is the wrong answer.

Likewise, if you register a name as "Chris Hydrick" in 2010 and then form your own company and update the registrant to your solely-owned "Hydrick Enterprises Inc." in 2022, then, again, the registrar will say that registrant has only had the name for two years. Or, a registrant could get married and change their name. Or, a registrant could fix a spelling error in their name. Or, a registrant could be the surviving spouse of the original deceased registrant. Guess why I can rattle off these examples, and more, of "the data doesn't tell the whole story".

Having a tech background myself, I understand it is tempting to believe that legal disputes can be reduced to analysis of technical data. But most legal disputes aren't about what the data says - they are about the behavior, motivations and intent of humans, which is a lot messier than the data.

 

[Alop]

Legally you have too much time on your hands

Illegally YA trash