Elequa loses NRA.net UDRP case

[GeorgeK]

Not a good few months on the UDRP front for Elequa. After taking a beating on the Oxado.com UDRP at WIPO as a complainant:

http://www.dnforum.com/showthread.php?t=173292

NAF showed they're no friend either, and handed out another loss, this time as a respondent for NRA.net:

http://domains.adrforum.com/domains/decisions/781430.htm

It's an exclusive club to have lost as both a complainant and a respondent. A gold star to those who can identify other such special individuals.

 

[MJM]

Instant karmas gonna get you
Gonna knock you off your feet

-John Lennon


:music:

 

[GeorgeK]

I was thinking the same thing, MJM. A lot of bad karma in that Oxado case.

If you read the NAF ruling, there were a lot of holes in it....e.g. the way they consider domain parking in general to not be a "bona fide" commercial use of a domain. Indeed, pop-unders were mentioned multiple times. This could have been easily countered, in my opinion, by citing other relevant cases.

Having only a single panelist, instead of a 3-panelist case, is also advantageous for the complainant. Respondent should have known better. Considering Kenyon & Kenyon is supposedly a large IP firm, http://www.kenyon.com/ , one would expect much better representation.

 

[TheLegendaryJP]

What I find interesting is a name with a value to resellers of maybe $1-$2K, why fight it, surely it isn't worth it. The principle of it I suppose. :idunno:

 

[Theo]

NRA.net *might* have a reseller value of $2k but surely for the end user it can be several times that amount. Also, Elequa rarely (if ever) sells. Now, unfortunately NRA is the epitome of conservative America, therefore there would be no way they'd lose this one to an outsider.

 

[TheLegendaryJP]

Interesting...

NRA .com .info .us

If Elequa lost the .net all the above extensions will/should follow based on that finding. So will the NRA go after those 3 too ? Maybe Elequa was targetted ?

 

[GeorgeK]

There's another UDRP pending for NRA.com, too, at NAF. That one is owned by Anything.com. Both cases were filed the same day. I imagine anything.com went for a 3-member panel -- we should find out soon, though.

 

[TheLegendaryJP]

How the hell could the panel not be influenced by the dot net decision, there is virtual no difference in the cases at all.

 

[GeorgeK]

What I find interesting is a name with a value to resellers of maybe $1-$2K, why fight it, surely it isn't worth it. The principle of it I suppose. :idunno:

Once you've lost one UDRP case, it's easier to lose others, and be branded a cybersquatter.

There is still time for the losing side to appeal the ruling in real court. Although, the NRA isn't going to be scared off by a court battle.

 

[GeorgeK]

How the hell could the panel not be influenced by the dot net decision, there is virtual no difference in the cases at all.

Cases like this depend on the facts, and the quality of legal representation. We shall see.....anything.com has won before.

 

[Theo]

So was it accidental that the .net case was decided first? Or is it that by attacking the lesser TLD's one establishes a stronger case against a .com?

 

[GeorgeK]

Usually 1-member panels are decided more quickly, everythign else being equal (i.e. in 3-member panels, the panelists must coordinate with each other, etc.).

 

[Theo]

So it's not related to single panelists being hardcore anti-domainers whereas three-member panels are more liberal :-D

 

[GeorgeK]

You tend to get a better hearing, as a respondent, when it's a 3-person panel, so it was a surprise that nra.net would be only 1 person.

 

[jberryhill]

Having only a single panelist, instead of a 3-panelist case, is also advantageous for the complainant. Respondent should have known better. Considering Kenyon & Kenyon is supposedly a large IP firm, http://www.kenyon.com/ , one would expect much better representation.

I'm pretty surprised by that as well. It is a sure bet that Kenyon & Kenyon charge a ton of cash more than Ari Goldberger, Steve Lieberman, Steve Sturgeon, and other attorneys with established records defending domain names.

Not requesting a three-member panel while paying that kind of money for attorneys is, in a word, stupid. Statistically, there is no more favorable situation for the respondent.

But there is a mentality which believes that the only measure of "value" is "how much am I paying".

Guys like Steve Sturgeon and Ari Goldberger have more experience defending UDRP's as individuals than the entire K&K firm. What you get from a firm like that is some associate overcharging for something he's never done, and his only passion is making sure he gets his annual billable hour quota filled.

The real punchline here, is that if you liked the panel reasoning in theknot.com, then take a look at the complainant's attorneys in that case. Knowing full well that a domain registrant does not choose the search results on a PPC page, they then turn around and try to argue against the tide which they, in part, created in the recent run of UDRP cases on that issue.

If the only thing that matters to you is getting your bills out, philosphical consistency doesn't matter.

 

[jberryhill]

So it's not related to single panelists being hardcore anti-domainers whereas three-member panels are more liberal

It works like this:

In a three-member panel proceeding, you pick one of the panelists. The other side picks one of the panelists. The third panelist is picked by an elimination process among the two parties, on the basis of a list of five proposed by the provider.

Consider that the amount of money a panelist receives is pretty much chicken feed for the time spent on the matter. The objective of the single-member panelist is to decide the matter as efficiently as possible, to avoid eating into his/her own billable time. Plus, the NAF provides the panel with a "proposed decision" which is never released to anyone. All a single-member panelist has to do is sign off on the NAF's own brief. In general, academics are going to give the thing a little more thought than an attorney with his/her own urgent time demands.

A three-member panel, at the very least, has to confer on the case, usually by teleconference. That means that the arguments are going to get at least some consideration and discussion.

That said, the panelist in this particular proceeding was among the more fairminded on the NAF roster.

 

[TheLegendaryJP]

John, I have a question.

For a moment assume I I have an acronym, generic in the sense many companies use it. Now being parked at say Trafficclub for example I have no decision in what ppc pages look like or the keywords they use. Obviously the links will be similar to the companies using that acronym when someone visits the page....

In say that my question is this...

Is it a valid proof of bad faith ? All things considered if it was and or is potentially viewed to be so, is it best to NOT park acronyms/names that while do not infringe on a mark, have never been offered for sale to the potential end user... do lead to competitors sites or similar results and or keywords appear that are used in the end users actual company/school name ?

I ask because I have one acronym that while does not have the whole schools/companies name does " chop " it up into various categories on the page.

 

[maroulis]

John, I have a question.

For a moment assume I I have an acronym, generic in the sense many companies use it. Now being parked at say Trafficclub for example I have no decision in what ppc pages look like or the keywords they use. Obviously the links will be similar to the companies using that acronym when someone visits the page....

Not sure about TrafficClub but I'd imagine you can "exclude" certain keywords. Also a screenshot of PPC targeted ads woulnd't be enough evidence IMO to suggest typosquatting but maybe I'm wrong...

 

[Raider]

Interesting...

NRA .com .info .us

If Elequa lost the .net all the above extensions will/should follow based on that finding. So will the NRA go after those 3 too ? Maybe Elequa was targetted ?

For the NRA to go after other TLDs, they would have to show the domain is being used in bad faith and/or that the owner has little or no legitimate interest in the name, I think if the owner used the name for (example) National Rivers of America, with zero connection to Guns or the NRA, they would stand a much better chance of retaining the domain....For the owners of all other NRA TLD'S, you better cover your butts! NRA has nothing but high profile Attorneys on there payroll, they dont go before the US Supreme court with rookies.

 

[TheLegendaryJP]

For the NRA to go after other TLDs, they would have to show the domain is being used in bad faith and/or that the owner has little or no legitimate interest in the name, I think if the owner used the name for (example) National Rivers of America, with zero connection to Guns or the NRA, they would stand a much better chance of retaining the domain....For the owners of all other NRA TLD'S, you better cover your butts! NRA has nothing but high profile Attorneys on there payroll, they dont go before the US Supreme court with rookies.

Have you visited those other extensions ? If elequa was found to be using it in bad faith than they are too Id imagine. That is why I asked John about parking etc.