ABT.COM - 3 member panel orders transfer of domain

[NickM]

http://domains.adrforum.com/domains/...ons/904239.htm

 

[VirtualT]

moral of the story: be careful what links your parking pages show with regards to competitors of TM holders of your name. :doh:

 

[NickM]

Yups

 

[stuff]

better, don`t park it at all.

 

[katherine]

Greg must be pissed.
BTW the link does not work for me. Here is an updated link: http://domains.adrforum.com/domains/decisions/904239.htm
Interestingly the domain has already been UDRPed back in 2004 (without success).

 

[DNQuest.com]

Usage Usage Usage...

Some people think I am a broken record, but you have to protect yourself. Develope a site, parking isn't always a good thing.


Sorry Greg, wish it would have went better for you.

 

[Fearless]

Nick you should post all the UDRPs you've lost.

 

[Theo]

I think the most appalling part of the decision is related to this:

This is the second proceeding in which Complainant has sought the transfer of the <abt.com> domain name. InAbt Electronics, Inc. v. Motherboards.com,FA 221239 (Nat. Arb. Forum Feb. 20, 2004), the panel denied transfer of the <abt.com> domain name. Complainant alleges that the current registrant of the disputed domain name, listed in the WHOIS information as “Gregory Ricks,” is a separate entity than the respondent in the previous proceeding, and thus this is a proceeding against a new Respondent. However, Respondent asserts that it is the past and present registrant of the <abt.com> domain name despite the change in the registration information. Complainant argues that in addition to a new respondent, the website that resolves from the disputed domain name is also substantially different from its presentation prior to the previous UDRP dispute.

The Panel has determined that the Respondent and the respondent in the original proceeding are not the same entity and thus, the Panel can proceed with this dispute. However, even if the Respondent and “Motherboards.com” were one and the same, the Panel finds that res judicata does not apply due to the different facts involved including facts which did not exist at the time of the prior proceeding. See Grove Broad. Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000), in which the panel found and subsequently applied to the UDRP, the four common-law grounds for the rehearing or reconsideration of a previously filed decision which include the discovery of credible and material evidence which could not have been reasonably foreseen or known at trial.

 

[stuff]

I find its not good to "link" someone personally to a lost UDRP - they "eyes" are everywhere

 

[Chappy]

Are we saying any Company with your LLL.com in their name can win a UDRP if you are simply parking the LLL.com? Or, does the parking page have to contain links to competing businesses?

 

[DNQuest.com]

If the parking is to the TMs service/products or a competitors service/products, that is where the parking will get you in trouble. The fact that this domain did both, it didn't bode well. Acronyms are genereic unless associate with a service/product (AOL, IBM, HP, etc), then they have secondary meaning. So if the domain was used in bad faith (the links went to a competor or the TM holder and the domain owner made money from it via PPC, that is commercial gain).

 

[italiandragon]

I still think there is not yet a fair law in this industry.

I still see often people like us being called "cybersquatters".....

 

[Theo]

My concern above was raised for the fact that the panel seems to accept the distinction of personal vs corporate ownership; then downplay it as a factor leading to its decision by means of acknowledging "different circumstances".

In other words, if one wins a UDRP they should not change the legal name they won it under? Why is not there a closed case the first time around? Would the case be different if the complainant had been found guilty of reverse hijacking in the first case?

 

[DNQuest.com]

To give an example, I am incorporated in Maryland, everything owned by my company is the property of my company, not me. So if I were to transfer to my name, that would be a seperate entity altogether and I would be the new owner. I think that is what happened, or something along those lines. Also to note, the domain was being used differently before as opposed to now (at least that is what was stated). Unfortunately, the used was PPC which was in bad faith.

 

[Theo]

Yes, obviously the smart move is to house the domains under a corporate entity. However it seems that a decision is not final unless the complainant loses the UDRP with a reverse hijacking notion.

 

[DNQuest.com]

Actually, you can go to court in the UDRP is not in your favor. But they show a different registrant with a different site even though it may be the same person who controleed the domain.

Lesson to learn, even if you win, be careful how you use the domain.

 

[JRBHosting]

I definitely see an appeal coming up in the future.

Jason

 

[Dave Zan]

I still think there is not yet a fair law in this industry.

I still see often people like us being called "cybersquatters".....

Define "fair". Various people and dictionaries have various definitions of such,
and you've got different and possibly competing interests involved.

If you're truly not cybersquatting, why bother with people who believe you're
one of them? Ignore them...until one of them files a dispute.

If the complainant of that dispute doesn't create an account with the domain
registrar in question despite a favorable decision, well...

 

[AlienGG]

Define "fair". Various people and dictionaries have various definitions of such,
and you've got different and possibly competing interests involved.

If you're truly not cybersquatting, why bother with people who believe you're
one of them? Ignore them...until one of them files a dispute.

If the complainant of that dispute doesn't create an account with the domain
registrar in question despite a favorable decision, well...

We have to build and maintain our defense to keep, at least try to keep, their door shut before it's wide open to the disputes which WILL rush in like a tsunami.

 

[jberryhill]

To give an example, I am incorporated in Maryland, everything owned by my company is the property of my company, not me. So if I were to transfer to my name, that would be a seperate entity altogether and I would be the new owner. I think that is what happened,

No, that's not what happened. The originally-identified domain registrant was a sole-proprietorship. It had no legal existence apart from its owner. There was never any "separate entity" involved.

Furthermore, the UDRP requires bad faith at the time of registration to be shown. The Panel stating that the recent appearance of the website, after years of use for something else, constituted a "new fact", was absurd. It was a new, and utterly irrelevant fact.