Nucell, LLC, seller of a “male enhancement” product, has been found guilty of reverse domain name hijacking over the domain name Maximize.com
A three person Czech Arbitration Court panel wrote a scathing finding of reverse domain name hijacking (RDNH), and it was warranted.
The owner of the domain name bought it in 2008 for $10,000. The complainant, which may not have been an active company at the time, started harassing the domain name owner a few years later, according to the decision. It doesn’t seem that Nucell gained any sort of trademark rights in the term “maximize” until after the domain was registered. Even then, it is clearly generic.
According to the domain name owner, the complainant created a false document showing that the domain owner tried to sell the domain name to Nucell. However, the panel wasn’t able to determine if it was a forgery or not.
The panel noted that “While the Complainant wants the Disputed Domain Name that does not translate into an obligation on the Respondent to surrender it and in doing so lose his USD $10,000.”
It wrote a lengthy rationale about why Nucell abused the policy in the proceeding. It’s worth reading in its entirety, but here’s a summary:
1. “the Complainant has failed on every significant issue in the proceeding and must have known that it would fail.”
2. “Complainant knew or must have known that it could not prove that the domain name had been registered in bad faith due to the obvious registration chronology.”
3. “the history of four years of harassment by Complainant of Respondent to force it to hand over the domain name.”
4. “the Complainant obviously feels entitled to the Disputed Domain Name and does not wish to pay for it.”
C.S. Watch says
This sentence must be a turnstile for an RDNH finding, every time and without exception:
“Complainant knew or must have known that it could not prove that the domain name had been registered in bad faith due to the obvious registration chronology.”
The bright line rule. In lock step with the plain language.
In every dispute where the domain registration predates the mark, you will find a Complainant with unclean hands misrepresenting the facts. RDNH is never going to be the wrong call there.
So why is Andrew Christie or anyone else being allowed to twirl his hair about ‘renewal-as-registration’ (retroactive bad faith)? It is at the crushing expense of both registrants and mark users. (Mark users who are being effectively fined by domain registrants via price hikes, unavailability, or public shaming, as well as fined by the courts.)
That line of reasoning MUST get shut down and shut out via RDNH findings. Both teams need the UDRP, and neither need it jeopardized by panelists who refuse to follow the plain language. There’s no room for career agenda in the UDRP. Nor for postliminary assuaging of old boy ego and ad nauseam a*s-covering. It’s a $100K+ question, not teatime in the outback.
The UDRP is a workhorse and both sides need it to work, not wobble.
John Berryhill says
Complainant’s counsel hasn’t had a lot of good luck lately, and apparently thought trying out the CAC would be worth a spin.
Andrew Allemann says
I did notice that it was Steven Rinehart, who was also the original lawyer on the MySchool.com case.
Acro says
The penalty should be stiff. 😀
Andrew Allemann says
Badaboom! Acro will be here all week, folks.
🙂