Find excuses not to find RDNH – Domain Name Wire

This panelist denied RDNH in two recent cases, and I question his rationale.

Last week, I wrote about UDRP panelist Warwick Rothnie judging the asking price of a domain name in two cases. His name was also mentioned in two recent rulings because he decided not to find any reverse domain name hijacking.

In Samet Kalıp Ve Madeni Eşya Sanayi Ve Ticaret A.Ş c. World Intellectual Property Organization Rothnie panelist Samet & Company listed a litany of issues with Complainant’s case. But he decided not to hijack a reverse domain name “with great hesitation.”

Why? Because the domain owner’s hosting company has put pay-per-click links on the domain. It would be one thing if these links were linked to the complainant, but they don’t seem to have been.

While I don’t agree with his decision not to find RDNH, that’s just one case.

But Rothnie also refused to find RDNH in one of the cases I recently wrote about. And this is one where he thought he was a capable domain evaluator. In Miroshnichenko Nikolay Viktorovich v. Abid Ali, Rothnie found on behalf of the Respondent but had this to say about RDNH:

Bearing in mind that Complainant does have trademarks based on “Nickol” and the offer of the disputed domain name for sale on the website “www.dan.com” for an asking price of USD 25,000, however, the Committee considers that this is not an appropriate case to conclude to reverse domain name hijacking. The Respondent succeeded on the basis of his own knowledge and personal information about the Complainant. In particular, whether or not the Respondent misunderstood the Complainant and his trademark was not objectively apparent from the price at which the Respondent announced the sale of the disputed domain name.

I think Rothnie suggests that the $25,000 price tag is high, perhaps showing that the domain owner was trying to cash in on a famous brand. But the rest of the case suggests it’s not a well-known brand. When panelists judge the fair value of domains, they enter a problematic area. Many panelists emphasized that it is not for them to judge the value of domains.

Again, I am not concerned with any case that is not RDNH. But there should be an arguable rationale behind the decision, not a hesitation to criticize a plaintiff for filing a bad case.