Geography Reference
In-Depth Information
6.209
It was pointed out that the Complainant had not alleged that the Respondent's
intention was to sell, rent or otherwise transfer the domain name
to the
Complainant or to a competitor of the Complainant -
just that the Respondent's
primary intention was to rent, sell or otherwise transfer the domain name
to a
third party
.
217
Even if the Complainant had said that the Respondent's inten-
tion was to sell, rent or otherwise transfer the domain name to the Complainant
at a profit, the Panel found that the Complainant was not in fact 'the owner of
the trademark or service mark', as those words are used in para 4(b)(i).
It was also noted that trading in domain names is not per se contrary to the
Policy.
218
6.210
iii. Reverse domain name hijacking
Under para 15(e) of the UDRP a panel is obliged to state in its decision any
conclusion it might reach that a complainant has brought the complaint in bad
faith, for example in an attempt at reverse domain name hijacking. 'Reverse
domain name hijacking' is defined in the Rules as 'using the Policy in bad faith
to attempt to deprive a registered domain name holder of a domain name'.
6.211
Jazeera Space Channel TV Station v AJ Publishing aka Aljazeera Publishing
219
ruled by majority that the onus of proving that a complainant has acted in bad
faith is on the Respondent, and that mere lack of success of the complaint is not
of itself sufficient to constitute reverse domain name hijacking. The Panellist in
the current case referred to the three-member panel decision in
Yell Limited v
Ultimate Search
,
220
which had observed that whether a complainant should have
appreciated at the outset that its complaint could not succeed will often be an
important consideration.
221
The Respondent submitted that the Complainant
could not seriously have thought that it had a real prospect of winning the case
because of its failure to secure modification of the UDRP to bring GIs within
its ambit and because of the general lack of detail of its claim.
222
However, given
the complexity of the law in relation to unregistered trade marks, despite a
finding that the Complainant's arguments were inadequately documented, the
Panel was unable to conclude with sufficient confidence that the Complainant
acted in bad faith in bringing the Complaint.
223
6.212
217
Ibid, at para 88.
218
Ibid, applying
Media General Communications Inc v Rarenames WebReg WIPO
, Case No D2006-0964.
219
WIPO Case No D2005-0309.
220
WIPO Case No D2005-0091.
221
[2011] ETMR 56 at para 90.
222
Ibid, at para 92.
223
Ibid, at para 97.
