The Complainant appears to have provided the wrong Acquisition Date, but the Respondent’s dates do not match either.
Regal Games, LLC was found to have attempted to hijack a reverse domain name in a recent cybersquatting decision at the National Arbitration Forum. Two things make this case interesting beyond the reverse domain name hijacking (RDNH) finding. The dates on both sides do not add up.
First, the complainant argued that the respondent, Wolfgang Sauer, acquired the estate on May 20, 2021, but provided no supporting evidence. This date is the “Update Date” in Whois, and the update dates can be for any change to a Whois record, such as a name server change.
I am shocked that a plaintiff does not understand this, especially when represented by an intellectual property lawyer. Incubate IP represented Regal Games.
An update date may coincide with a transfer of ownership, but panelist Luca Barbero noted that Regal Games has not provided any evidence of a transfer of ownership. Barbero cited the complainant’s incorrect date as part of his rationale for finding RDNH.
But there is something else funny about the matter, this one from the Respondent’s side. Barbero’s article states:
The Respondent further submits that the disputed domain name was used to his own company [emphasis added] in the sale of game consoles since September 2002 (as shown in a historical screenshot taken from the Internet Archive “www.archive.org” in Annex 2 of the response).
Here is the thing. When I looked at the historical Whois records, it appears that a previous owner used the domain at the time. Until mid-2014, a Florida company called Eagle Entertainment (later Regal Games) owned the domain. DomainTools records show that the domain went into pending renewal or deletion at Network Solutions in August 2014, with Sauer becoming the registrant on August 20, 2014. The domain has been parked since then.
I contacted Sauer by email last Friday to ask for clarification, but had no response. It’s possible he said the domain was used for gaming at the time, not that he used it for his own business. But that’s not what Barbero’s decision says. There could also be a connection between the companies, despite being in different geographic locations, and the domain has gone through the NameJet expiration cycle.
That may not have changed the outcome of the case. Regal Games did not provide strong evidence of common law rights prior to its trademark application in 2019.
Still, this is a big open question. And it is strange that Regal Games did not file any additional file a) explaining its misunderstanding of the date of acquisition b) disputing the date of acquisition by the Respondent. Of course, if you don’t understand that the update date is not the acquisition date, then you probably don’t understand how to use historical Whois services.