A split decision UDRP worth reading
One panelist thinks this was RDNH; another thought the domain should be transferred.
It’s always interesting when there’s a dissenting opinion in a UDRP. These disputes are designed to handle clear-cut cases of cybersquatting, so you’d think all three panelists would agree on the outcome.
Of course, there is a bit of nuance to cases. But it’s exceptionally rare when at least one panelist thinks a case is reverse domain name hijacking and another one thinks the domain should be transferred. (Rare, but it happens.)
The latest example of this is a dispute over amadeus.co. The majority of the panel denied the complaint. One panelist found reverse domain name hijacking. Another panelist believed the domain should be transferred.
And at least some of the rationale probably comes down to geography.
Let’s start with the name. The most famous Amadeus was Wolfgang Amadeus Mozart. Just like the term Mozart is used in lots of company names, so is Amadeus. The domain registrant is a domain investor who says he bought the domain for resale, partly because many companies use the name.
The Complainant, Amadeus IT Group, S.A., argued that the domain owner must have been targeting it because of its worldwide renown.
So let’s step back and learn about this company. There’s a good chance you’ve used its service but had no idea you were doing so. It’s a B2B software company for the travel industry, providing all sorts of tools that help airlines, cruise companies, etc., operate.
It’s a big company, but you’ve probably never heard of it unless you work for a travel company.
Dissenting panelist Reyes Campello Estebaranz thinks you should have. In her six-page dissent, she wrote:
The Respondent, as everybody nowadays, may most probably be a user of air transport and tourism services, and, therefore, familiar with the AMADEUS mark. Prior decisions under the Policy have recognized that the AMADEUS mark is well known in the field of air transport and tourism, as well as to the users of these services (panel translation, see, e.g., AMADEUS IT GROUP, S.A. v. Karla Guajardo, supra, and AMADEUS IT GROUP, S.A. v. Francisco G., supra). The Respondent may most probably be a user of the ample palette of tools, apps, and various solutions provided by the Complainant to all travelers worldwide, including in the United States, where the Respondent is located. It is hardly believable that he has never caught a plane, never travelled anywhere, had never booked, confirmed and paid for a travel ticket, etc., through the Complainant’s various solutions, and/or has never heard about these solutions, so, consequently, was not aware of the well-known AMADEUS mark.
I’ve done a lot of traveling but had never heard of this company. I suspect that’s the case with many travel consumers.
Perhaps her familiarity with the company stems from her living in Spain, where the Complainant is based. Or maybe her job as an IP attorney in Spain impacted her view of the case.
Reyes Campello Estebaranz used the term “grey area” twice in her dissent, which is concerning when UDRP is designed to handle clear-cut cases of cybersquatting. Among the “grey areas” is that Respondent owns roaring.us, pliant.us, and camarillo.us, among others. The Complainant pointed out that these are trademarks; the Respondent noted that they are dictionary words and surnames. The panelist wrote:
This Panelist considers that these examples show that the Respondent’s business is moving in a grey area targeting names used as trademarks by various companies, which may be “dictionary words”, but this fact alone does not automatically confer rights or legitimate interests to the Respondent.
Panelist Alan L. Limbury believes this was a case of reverse domain name hijacking:
He takes this view because he believes the Complainant must have been aware of the widespread use of the name “amadeus” in commerce, and also because of its false statement that “the Complainant is the only entity that is granted rights to exploit the trademark AMADEUS.”
The third panelist, Steven A. Maier, agreed that the transfer should be denied but stopped short of finding reverse domain name hijacking, partly because he believes a decision should be unanimous to find RDNH.
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