UDRP case “contaminated” by presiding panelist
Panelists dispute how much private research panelists can undertake.
Two panelists in a World Intellectual Property Organization case have rejected the dispute based on the actions of the presiding panelist.
In one of the most bizarre UDRP cases I’ve ever read (pdf), panelists Sandra Franklin and Neil Anthony Brown argued that the presiding panelist, Reyes Campello Estebaranz, did too much private research of her own. Brown said she “contaminated” the case with private research. Estebaranz disagreed, saying she “deplores the direction which the majority members of this Panel have deemed fit to give to this case”.
There are a lot of harsh words between panelists, which is very rare.
The case involved the domain fordirect .com. Ford Motor Company argued that that the domain is cybersquatting on its Ford Direct trademark.
All of the panelists agree that they can undertake limited independent research, but two of the panelists believe that Esebaranz went too far.
Estebaranz sent a draft decision to the other two panelists based on extension private research. She later sent an amended draft decision that excluded a lot of the details of her private research, but the other panelists believe the conclusions were based on that research.
The private research and its use are so integral to the proposed decision in the Final Version that it cannot simply be ignored or excised from the decision, as is apparently sought to be done in the later Final Draft; the only way of rectifying the situation just outlined and maintaining the integrity of the UDRP process is to dismiss the Complaint and to give the Complainant leave to bring such other proceedings as it may be advised on a without prejudice basis.
He argued that Estebaranz embarked on an independent investigation of what the complainant’s case should have been, rather than what Ford put forward. This meant that the domain owner could not respond to the accusations uncovered by Estebaranz.
It should be emphasised that the factual matters alleged by the Presiding Panelist may be true. That is not the issue. It may also be true, when all of the facts are known, that the Respondent registered and used the domain name contrary to the Policy. But nor is that the issue. The point is that the “evidence” against the Respondent should have been brought to his notice, so that he could rebut or qualify it and by that means have a fair opportunity to present his case. That he was not given that opportunity undermines the proposed decision to transfer the domain name. The reasons why that is so are such a major part of the proposed decision that it is unsafe to order transfer of the domain name.
The Complaint should therefore be dismissed. But the Complainant is not to blame for this imbroglio and should have the right to file and serve a further Complaint without prejudice.
Panelist Franklin wrote a short concurring opinion with Brown:
Upon initial review of this case, the undersigned found that it was possible to decide this case without going outside the record. After the Presiding Panelist presented the Panel with several draft decisions containing her extensive research, the undersigned stated more than once the firm opinion that it was unnecessary and incorrect to conduct that level of private research, effectively adding to one party’s case for them. The Presiding Panelist expressed that her research was necessary to her findings in the case. Due to all of these circumstances, I concur with the Honourable Neil Brown’s opinion above and agree that this case must be dismissed without prejudice to the Complainant.
The decision puts World Intellectual Property Organization in a tough spot. Both the Complainant and Respondent can argue they were wronged by the process. Ford has to pay (or spend time) to refile the case, and the Respondent might have won the dispute had Estebaranz not done her extensive outside research.
This is not the first time Reyes Campello Estebaranz has been on the dissenting side in a controversial dispute. In a case over amadeus.co, Estebaranz seemed to bend over backward in finding for the Complainant, while the two other panelists found for the Respondent (and one believed it was reverse domain name hijacking).
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