Finding excuses to not find RDNH

This panelist declined 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 also came up two recent decisions because he decided to not find reverse domain name hijacking.

In Samet Kalıp Ve Madeni Eşya Sanayi Ve Ticaret A.Ş v. Samet & Company, World Intellectual Property Organization panelist Rothnie listed a litany of issues with the Complainant’s case. But he decided against reverse domain name hijacking “with considerable hesitation.”

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

While I disagree with his decision not to find RDNH, it’s just one case.

But Rothnie declined to find RDNH in one of the cases I recently wrote about, too. And it’s one of the ones where he thought he was a capable domain appraiser. 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 the Complainant does have registered trademarks based on “Nickol” and the offering of the disputed domain name for sale on the “www.dan.com” website for an asking price of USD 25,000, however, the Panel considers this is not an appropriate case for a finding of reverse domain name hijacking. The Respondent has succeeded on the basis of his own personal knowledge and information about the Complainant. In particular, the Respondent’s lack of knowledge or otherwise of the Complainant and his trademark was not objectively apparent from the price which the Respondent advertised the disputed domain name for sale.

I think Rothnie is suggesting that the $25,000 price is high, perhaps showing that the domain owner was trying to take advantage of a famous mark. But the rest of the case suggests it’s not a well-known mark. When panelists judge the fair value of domains, they walk into a troublesome area. Many panelists have pointed out that it’s not their place to judge the value of domains.

Again, I’m not concerned with one case or another not being RDNH. But there should be a defensible rationale behind the decision, not a hesitancy to criticize a Complainant for filing a bad case.

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