Reverse Domain Name Hijacking

Disclaimer: As well as being an auDA Member, I am now an auDA Demand Class Director. The article below is my personal opinion, and does not purport to be the views of auDA.

For those not aware, Reverse Domain Name Hijacking (RDNH) is where a party who covets someone else’s domain name tries to obtain it on the cheap by filing a “dispute procedure” with an appropriate authority – and fails miserably because the complaint was brought in bad faith.

For dot-coms and some other domains extensions, the mechanism for a dispute is called a UDRP (Uniform Dispute Resolution Procedure). In Australia, a dispute is called an auDRP.

Cooper Mills has a good blog article on the subject of RDNH in Australia. Here is an excerpt:

Reverse Domain Name Hijacking (‘RDNH’) is defined by the auDRP as meaning “using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name.”. This often takes place where the Complainant has been unable or unwilling to negotiate the purchase of a domain name from the registrant holding it. Some in the industry refer to RNDH as the process to ‘steal rather than pay’ for a domain name.

Financial Penalty

Unfortunately, there is no financial penalty in Australia or the USA for parties found guilty of RDNH. In the opinion of many, there needs to be some reform in this regard. Frivolous and vexatious efforts to obtain domain names “on the cheap” can cost legitimate registrants lots of money defending the “dispute” (which they never get back). This is totally unfair.

However, once again, Canada leads the way when it comes to their domain space. Their dispute procedure is called a CDRP, and they DO have a penalty for bad faith complaints!

4.6 Bad Faith of Complainant. If the Registrant is successful, and the Registrant proves, on a balance of probabilities, that the Complaint was commenced by the Complainant for the purpose of attempting, unfairly and without colour of right, to cancel or obtain a transfer of any Registration which is the subject of the Proceeding, then the Panel may order the Complainant to pay to the Provider in trust for the Registrant an amount of up to five thousand dollars ($5000) to defray the costs incurred by the Registrant in preparing for, and filing material in the Proceeding. The Complainant will be ineligible to file another Complaint in respect of any Registration with any Provider until the amount owing is paid in full to the Provider.

A Couple Of Interesting RDNH Decisions

The Chair of auDA’s Policy Review Panel is John Swinson (Partner at King & Wood Mallesons). John is also a UDRP and auDRP Panelist.

Two cases that he was a panelist on in recent times handed down RDNH decisions. In both instances, the Respondents to the complaint did not seek an RDNH finding, but the panelists made one. This was great to see. The wording was similar for both cases.

“The Respondent has not specifically sought a finding of RDNH in this case. However, it is open to the Panel to make such a finding without a request from the Respondent. In fact, the Panel in Dumankaya Yapi Malzemeleri SAN. VE TIC. A.S v. Domain Administrator, Name Administration Inc. (BVI), WIPO Case No. D2015-1757 stated that “if abuse is apparent on the face of the case papers, the Panel is under an obligation to declare it”.”

In the case of Modz.com;

“In this case, the Panel considers that the Complainant omitted or misrepresented key communications between the Complainant and the Respondent. The Complainant’s earlier offer to purchase the Disputed Domain Name was only disclosed by the Respondent. The Panel considers the Complainant’s filing of the Complaint was “Plan B” following several failed attempts to purchase the Disputed Domain Name at what it considered to be a reasonable price.

In the case of cpaglobal-litigation.com ;

“In this case, the Complainant ought to have known its Complaint was doomed to fail. The Respondent was clearly using the Disputed Domain Name in good faith to promote and provide information about a legitimate service which it offers.”

Conclusion

Unfortunately, some companies with deep pockets will continue to try and acquire domains this way. Let’s hope for more and more RDNH decisions – and the introduction of financial penalties for bad faith and abusive applications.

Ned O’Meara – 11th January 2018

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