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Understanding ‘Reverse Domain Name Hijacking’ Under the UDRP

“Reverse Domain Name Hijacking” (RDNH) is a finding that a panel can make against a trademark owner in a case under the Uniform Domain Name Dispute Resolution Policy (UDRP).

RDNH Defined

Specifically, according to the UDRP Rules, RDNH is defined as follows: “Reverse Domain Name Hijacking means using the [UDRP] in bad faith to attempt to deprive a registered domain-name holder of a domain name.” The Rules also state: “If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.”

While neither the UDRP nor the Rules provide any further details or guidance, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, provides some insight into the circumstances in which panels have found RDNH:

To establish Reverse Domain Name Hijacking, a respondent would typically need to show knowledge on the part of the complainant of the complainant’s lack of relevant trademark rights, or of the respondent’s rights or legitimate interests in, or lack of bad faith concerning, the disputed domain name. Evidence of harassment or similar conduct by the complainant in the face of such knowledge (e.g., in previously brought proceedings found by competent authorities to be groundless, or through repeated cease and desist communications) may also constitute a basis for a finding of abuse of process against a complainant filing under the UDRP in such circumstances.

The WIPO Overview lists the following circumstances in which UDRP panels have actually entered a finding of RDNH:

  • the complainant in fact knew or clearly should have known at the time that it filed the complaint that it could not prove one of the essential elements required by the UDRP
  • the complainant failed to notify the panel that the complaint was a refiling of an earlier decided complaint or otherwise misled the panel
  • a respondent’s use of a domain name could not, under any fair interpretation of the reasonably available facts, have constituted bad faith
  • the complainant knew that the respondent used the disputed domain name as part of a bona fide business for which the respondent obtained a domain name prior to the complainant having relevant trademark rights

RDNH in Practice

Although WIPO’s UDRP statistics do not indicate how many cases have resulted in a finding of RDNH, a regular reading of decisions makes clear that RDNH is far from common. It appears as if a little more than 100 WIPO UDRP decisions so far this year have mentioned RDNH—out of more than 2,400 decisions to date. And, of course, not all of those decisions actually found RDNH; many of them denied it.

Here’s one particularly interesting example: In a decision denying transfer of the domain name <circus.com>, a divided panel issued a decision finding RDNH. Two of the three panelists wrote:

The disputed domain name is a single and common generic English term. As such, it is subject to an obviously large range of third party interests. The Respondent has held the disputed domain name for more than 6 years and used it for a variety of purposes, none of which related to the Complainant’s business. The Complaint does not show any “reasonable investigation” on these points. Rather, the Complainant made no effort to address these obvious points of substantial weakness in its case.

The Complainant is represented by counsel. The majority cannot see how any responsible practitioner could see how to prove bad faith in registration and use when there is no evidence of targeting or otherwise taking advantage of any value attached to the Complainant’s mark.

But, one of the three panelists disagreed and wrote:

Having a weak and poorly motivated Complaint, does not in itself constitute evidence the Complainant having acted in bad faith. In the present case, there is no indication that the Complainant knew or should have known it would not succeed. Indeed, there is no basis to find that the Complainant did not genuinely believe that a domain name entirely incorporating the Complainant’s trademark CIRCUS would not result in some degree of confusion, having regard to the existence of the Complainant’s circus-branded gaming halls. This case appears to be a bona fide dispute between a trademark owner and a domain name broker…

The Complainant first registered the trademark CIRCUS in the Benelux in 1997. Given that the Respondent acquired the domain name in early 2010, 13 years after the Complainant’s trademark was registered, this may have contributed to a belief by the Complainant that it was in a strong position and had legitimate grounds to start these proceedings.

As is apparent from just this one decision, even UDRP panelists themselves don’t always agree on RDNH.

RDNH: The Impact

So, what is the relevance of a finding of RDNH? Practically speaking, there is none. While RDNH is akin to a mild form of public shaming, it doesn’t include penalties of any kind.

By comparison, the Uniform Rapid Suspension System (URS)—the alternative dispute policy that applies only to the “new” top-level domains—sets forth “penalties for abuse of the process by trademark holders” who are found to have filed their complaints “in bad faith” or “primarily to harass the domain name holder.” Under the URS, multiple infractions may prevent the trademark owner from filing future URS complaints for a one-year per of time or even permanently, depending on the circumstances.

By Doug Isenberg, Attorney & Founder of The GigaLaw Firm

Learn more by visiting The GigaLaw Firm website. Doug Isenberg also maintains a blog here.

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