Its a pretty remarkable decision.
Not only did one of the largest companies in the world, The Procter & Gamble Company of Cincinnati, Ohio (PG) get hit with a finding of Reverse Domain Name Hijacking (RDNH) but the panel found the company misrepresented facts to the panel.
The domain at issue was Swash.com which is owned by Marchex Sales, Inc (MCHX) which was represented as usual by John Berryhill, Ph.d., Esq.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2012.
The decision was just handed down today, over 5 months later.
Not only did the panel find that P & G was guilty of RDNH but it found that P & G misrepresented material facts to the panel.
““The entire Panel finds it more extraordinary still that in its Complaint the Complainant represented the SWASH brand to be a worldwide brand of longstanding with multi-million dollar sales, stating that over the last 4 years alone the brand had gained sales of over USD 40,000,000.”
“When this was challenged by the Respondent, the Complainant was forced to admit that the brand had only been on the market for 4 years, that sales had been restricted to the USA and that sales over those four years had totaled under USD 60,000.”
Had the Respondent failed to respond, there is a very real risk that the Panel, relying upon the 1993 International registration and the substantial sales volumes claimed for the brand, would have found in favor of the Complainant. This Complaint fell very far short of what the Panel was entitled to expect from a Complainant of this stature.
In all of the circumstances present here, the Panel finds that the Complainant has abused the process in an attempt at reverse domain name hijacking in contravention of the UDRP Rules at paragraph 15(e).”
They have no idea what is coming in my next post.
I promise you it will be something that will grab their attention.
That more of a big reason why I don’t buy their products.
I can’t understand why a company like P&G would do such an act that could easily and quikly affect and ruin their reputation especially that they have something called Connect&Develop that aims to make people share their innovation with P&G. This case will put off many innovators from P&G and make them even question the integrity and the trustworthy of P&G as a company.
@Rick
I look forward to reading what you have to say about P&G
Great so they were proven to be PIRATES. Where’s the big deterrent, where’s the big cash penalty for wasting the owners time. Oh right there is NO PENALTY other than a public flogging. This system does nothing to deter these people and others like them from doing it again and again and again……..
Go get them Rick!!!!!!! Give them their deserved place on “The Wall”.
There is no penalty other than public shaming for lying and presenting false evidence
So how effective is this system? Other than costing domain owners thousands of dollars to defend ridiculous claims. Can Marchex now take this finding to general court and sue them a new you know what?
It would cut both ways, ,meaning that domainer would have to pay up when they lose
Im fine with it but many domainers are not especially when the TM holders win 85% of the time
So can Marchex now go to a real court?
“There is no penalty other than public shaming for lying and presenting false”
I’m in charge of that department. 😉
Thanks to Michael and Rick for shining the light on such disreputable tactics.
There should be some sort of SLAPP-like initiative (CA & other states’ legal penalty against trying to intimidate free speech) to protect “the Davids” against the corporate “Goliaths”.
Marchex can afford to fight, but many small business owners cannot. I’m grateful for fighters like Rick and Michael and their protective actions.
Rick, Looking forward to your response. 🙂
So I guess we should avoid these products and brands as they have been proven to be an unethical company?
http://www.pg.com/en_US/brands/all_brands.shtml
You have to fight
Note this language in the panel’s decision:
Had the Respondent failed to respond, there is a very real risk that the Panel, relying upon the 1993 International registration and the substantial sales volumes claimed for the brand, would have found in favor of the Complainant
Can Marchex go after them for damages?
why not?
Anyone can sue anyone for anything.
Once your talking about “misrepresentation” or lets call it what it is, lying in a quasi legal proceeding I think you can bring a cause of action.
Speaking in general of course and not about this case specifically I think deliberate false representation in order to secure some financial or material benefit is basically illegal. Why dont the cops/fraud squad take some action when it is done in broad daylight. Surely there comes a point where these shenanigans jump from the civil into the criminal realm and becomes in the public interest to prosecute.
In this case top executives got bad advice from lawyers/its tech team. This is a shame, to cast an entire company made of top employees who adhere to high standards and ethics, in a bad light.
Just like corps get bad advice from their maketing companies stuck in traditional advertising like print, and are not schooled in the importance of domains, either. In this case, it’s a triumph, because the company heads understood the importance of the exact match dot com to the product they promote.
But a loss it was mislead taking over the domain would be easy.
“because the company heads understood the importance of the exact match dot com to the product they promote.”
…and what product would that be?
John
I guess the one that did the whopping $40K in sales
The product is Swash, and I think you know what it is, since you represented Marchex!
amazon.com/Swash-Variety-Pack-Frustration-Free-Packaging/dp/B002QHV7ZM
Here is what piqued my interest:
“Had the Respondent failed to respond, there is a very real risk that the Panel, relying upon the 1993 International registration and the substantial sales volumes claimed for the brand, would have found in favor of the Complainant. ”
What remedy would the losing registrant have had if they did not challenge the complaintant on those sales figures but found them out later to be false/lies? This is binding arbitration no–unchallengeable in court? Can a case be reopened in UDRP?
Chip
A domain holder can file a lawsuit within 10 days of a UDRP decision for a declaratory judgement to stop the transfer.
I assume that P&G lie wasn’t obvious from the 1st day, so I would think the truth came out only after the legal representation for Marchex got to the bottom of this after a lot of back and forth between the parties, so if there was no one hired to fight the UDRP is pretty certain that the truth wouldn’t just have been revealed
@John,
could you disclose the cost to defend this name? or a round about figure??
“The product is Swash”
Procter and Gamble stopped making that product more than a year ago.
Louise,take a look at the Amazon link you posted:
“Currently unavailable.
We don’t know when or if this item will be back in stock.”
And you’ll further note that Amazon vendor has a handful of units left of the other items.
After P&G abandoned the product, there were a few folks who bought the remaindered stock and sold it off.
So, again, I ask… what product? Try to find it on P&G’s own site.
Hello John Berryhill,
Congrats!
There ares very condemning facts on this whole Power Grab attempt over at Wikipedia .There is a link over at Ricks blog on this subject in commments.
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
All I could find on the PG website is a material data safety sheet for Swash Lint Roller:
pg.com/productsafety/msds/fabric_and_homecare/special_fabric_care/Swash_Lint_Roller.pdf
So, I see what happened. PG test marketed the products, and did a last ditch effort to see if it could acquire the domain, before promoting the product, as Swash. If it doesn’t purchase the domain from Marchex, PG will have to market its products under a different brand.
R. E. = ” In this case top executives got bad advice from lawyers/its tech team. This is a shame, to cast an entire company made of top employees who adhere to high standards and ethics, in a bad light ”
Ethics mean nothing to lawyers, Literally.
Under the law you can murder someone and get away with it. In Court !
Gratefully, Jeff Schneider (Contact group) (Metal tiger)
R.E. = ” Under the law you can murder someone and get away with it. In Court !
I believe their Bar Ethics make them defend known criminals even though they know them to be Guilty. What a System ??????
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
Hello MHB,
Lets have a little Gentlemans bet here. I wiil wager you a million to 1 handicap that this is already on the not yet announced Congressional Docket . Or has it already? The echoes are getting louder.
P.S. You can just hear the sloshing of money underneath the table.
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
“So, I see what happened. PG test marketed the products, and did a last ditch effort to see if it could acquire the domain, before promoting the product…”
Nope. And the reason I’m making you work is so that you can appreciate how truly bizarre this case is.
Take a look a the registration data and history for “swashandgo.com”, and read this:
http://adage.com/article/news/brands-land-big-bang-buck/230850/
When P&G in 2008 launched a new-age version of Tide called Swash, aimed at millennials and based on the concept of freshening clothes between uses rather than washing them, it backed the launch not so much with ads but with a store near the Ohio State University in Columbus. There it had lounges where students could watch DVDs, play video games and hopefully buy Swash fabric refreshers or lint rollers on the way out.
Ultimately, after trying to sell Swash in conventional retailers and online, P&G pulled the plug on the brand earlier this year.
—–
That Ad Age article is from 2011. The remaining stock was dumped on inventory liquidators, and P&G stopped making it. The liquidators pretty much couldn’t give the stuff away. “It” in this context is itself hard to define, but that’s another story (check the youtube videos for user swashandgo to appreciate the full-on stupid of what they were trying to sell). But, the bottom line is that they gave up on these short-lived products in 2011.
Why they actually wanted the domain name is another story entirely, and has nothing to do with these products, or anything else they alleged in the UDRP. It’s what makes this case pretty weird – it was entirely bullshit, and not just for the claimed sales figures.
To unwrap what was really going on, you have to dig into just what is going on among Electrolux and an Italian company called Zanussi in relation to the name “swash”. Imagine what would happen to P&G if people stopped using detergent to clean clothing.
Hello John,
It is amazing what some companies will do to maintain increasing Qtrly revenue reports. Lots of Corporations are run by people who will do anything for their Lord the dollar.
Gratefully, Jeff Schneider (Contact Group) (metal tiger)
(CORRECTION in parenthesis )
R.E. = ” Lets have a little Gentlemans bet here. I wiil wager you a million to 1 handicap that the ( closed Monopoly TLD offering ) is already on the ,not yet announced ,Congressional Docket .
Or has it already? The echoes are getting louder.
P.S. You can just hear the sloshing of money underneath the table.
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
I don’t have the skill set BUT I’m sure Rick could find someone. We need to set up a website with Town Square where P & G ( and others) have their public flogging. This would go viral on social media. The way it is very few people would know what P & G did.
@ Serryjw
R.E. = ” I don’t have the skill set BUT I’m sure Rick could find someone. We need to set up a website with Town Square where P & G ( and others) have their public flogging. This would go viral on social media. The way it is very few people would know what P & G did.”
Brilliant idea, I would pay to watdch that ! Skywaitress please pass the popcorn and Beer, this will be EPIC.
Are you listening DOMAINGANG ??
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
““There is no penalty other than public shaming for lying and presenting false” Mike
“I’m in charge of that department.” Rick Schwartz
Are you kidding Rick Schwarz? You’re going to publicly shame Proctor & Gamble for quote “P&G overstepping in this outrageous manner?” Rick Schwartz
YOU’VE MADE MILLIONS OUT OF THIS PRACTISE, FROM AN ILLEGAL ONLINE ADULT MAFIA CREDIT CARD SCAM TO OVER SELLING AND UNDER DELIVERING PRE PAID TRAFFIC DEALS TO REFERRING TO YOUR RECENT DOMAIN NAME JOINT VENTURES PROGRAM AS SELLING CHRYSLERS FOR FERRARI BUT REFUSE AFTER PUBLICLY STATING YOU WOULD NOT BUY ANY OF THESE DOMAIN NAMES!
”
I am going to milk this story for every ounce it is worth and it may take me YEARS to do it.” Rick Schwartz
““There is no penalty other than public shaming for lying and presenting false” Mike
“I’m in charge of that department.” Rick Schwartz
Are you kidding Rick Schwarz? You’re going to publicly shame Proctor & Gamble for quote “P&G overstepping in this outrageous manner?” Rick Schwartz
YOU’VE MADE MILLIONS OUT OF THIS TYPE OF PRACTISE, FROM AN ILLEGAL ONLINE ADULT MAFIA CREDIT CARD SCAM TO OVER SELLING AND UNDER DELIVERING PRE PAID ADULT TRAFFIC DEALS TO PROMOTING YOUR RECENT DOMAIN NAME JOINT VENTURES PROGRAM AS SELLING CHRYSLERS FOR FERRARI PRICES AFTER PUBLICLY STATING YOU WOULD NOT BUY ANY OF THE DOMAIN NAMES LISTED ON JOINT VENTURES (JUSTIFYING IT BUY SAYING, DOES WARREN BUFFETT BUY EVERY SHARE?
AND DOMAINERS ACCEPT THIS BEHAVIOUR FROM ONE OF THE SO CALLED LEADERS OF THE DOMAINING INDUSTRY?
”
I am going to milk this story for every ounce it is worth and it may take me YEARS to do it.” Rick Schwartz
@ John Berryhill said
Okay okay okay I do what you say. Ok Ok Ok. You got the pants on. You’re the boss.
What I see is an entry into the Electrolux Design competition of a portable washer which he named, Swash:
behance.net/gallery/SWASH-Portable-Air-Wash-Machine-Industrial-Design/4741077
and that swashplate is actually a generic term, meaning, a device used to translate the motion of a rotating shaft into reciprocating motion, wiki. Zanussi has a patent on a compressor, which tech DOESN’T use a swash plate, but cites another patent that uses a swash plate in its compressor technology. Therefore, those associations are incidental.
Anyhoo, congrats on beating back a giant, and getting the correct verdict of Reverse Domain Name Hijacking. Now that it’s done, Marchex should do business with P&G and just sell it its name, for P&G to move forward with whatever plans it has. No matter what the AdAge article surmises, I think Swash’s time has arrived! I notice those washers which double as dryers on HGTV’s House Hunters International in European lands, and it appears some air washing machines are out there, so a waterless detergent would fit that market.
Denise King,
Why don’t you tell folks your REAL name?
Why don’t you tell them that you are a GUY?
Why don’t you publish your real info and stop slandering me with things not true!
Moron!
“Therefore, those associations are incidental.”
You might think so.
But the funny thing is that in February 1993, Zanussi filed for a figurative “SWASH” mark with the Italian trademark office (0000606197) for an “apparecchi elettrici, in particolare macchine lavabiancheria”. That Italian base application was later assigned to Electrolux. Interestingly, that Italian application also serves as a priority basis for International Registration 610197, which was assigned by Electrolux to P&G International. Again it gets weird here, since that application has an earlier priority date than the one which P&G bought from Henkel in 2008 and asserted in this proceeding. Just after purchasing some, but not all, of the national rights in the Zanussi application, P&G filed the intent-to-use application in the US for a washing machine of some kind.
The entire premise of the UDRP proceeding was stunningly dishonest. They want the domain name for something else entirely, and concocted an utter work of fiction in order to attempt to steal it.
Rick Schwarz
Here is your chance to to clown me.
Where shall we start?
1. Your protected message board club that allowed you to over sell and under deliver monthly pre paid traffic deals to unsuspecting private companies expecting to make a profit from your “high octance traffic deals”? Note: The adult industry at the time only dealt in profitable deals (branding was not a part of the business model, and 90% of all traffic deals were paid per sign up). Yet Rick Schwarz continued to over sell and under deliver “pre paid traffic deals” on the promise the traffic was “high octane type in traffic”, and burnt/ripped off numerous companies until the only way he could make the same kind of money was to move to point number 2.
2. Your involvement with the russian and australian mafia? All involving multi credit card billing scams?
3. Promoting candy.com and property.com as working lease examples for jointventures.com, when they were actually sold and not leased? Not to mention these “examples of elasing domain names” are in different leagues to the domain names listed at jointventures.com?
4. Your public statement that you would not buy any of the jointventures.com domain names? Yet promote them on your website as “chrysler prices for ferraris”. And your reason for not buying any of the jointventures.com “unique once in a lifetime opportunities” is, Warren Buffet doesn’t buy every share.
5. Your rings.com analogy re best use not being for a jewellery site, stating the best use is for bing.com to use it lol (folks strike this, this one was just for laughs, but illustrates a pattern of Rick Schwarz “Moral turpitude”).
Which item would you like to start with?
@ John Berryhill, I guess P&G got schooled, and I got schooled, about your research and detail summarized in the WIPO site
The issues would have been murky in any other hands!
Question: at this point, or when P&G receives the trademark, the domain isn’t saleable any longer – right? I thought with UDPR, the “creation” date gets reset to the purchase date. Now that P&G has applied for trademark on the term, “swash,” any purchasers would be liable to UDPR.
@ Denise King,
You are the clown here and knowone else!
Your highly payed mission here to smear Rick, is all heresay by a woman who is mentally unhinged with deep pocketed motives.
You will be exposed and escorted to ride your broom to another location where you can spew your hate on other prosperous targets.
Get a Grip !
Gratefully, Jeff Schneider (Contact group) (Metal Tiger)
@ John Berryhill, Thanx for all your feedback. You don’t have to say anything.
The record shows buyer beware! Do your due diligence. Don’t invest in a domain which violates trademark, or has UDPR action against it, because the panel considered the 2004 Marchex purchase date as preceeding the use of the brand by P&G.
For those thinking what Rick Schwarz has done and continues to do is just business, have a read of what Uzoma posted on Ricks Blog in regards to “Moral turpitude”. Perhaps it will shine a light on what is at best a shady business history.
”
Moral turpitude is a legal concept in the United States that refers to conduct that is considered contrary to community standards of justice, honesty or good morals.
Wikipedia describes moral turpitude as a concept that escapes precise definition but has been described as an “act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.
”
Rick Schwarz FAILS the “Moral turpitude” test, yet has the gawl to chastise, defame and hunt down P&G Proctor and Gamble for “Moral turpitude”.
Talk about the pot calling the kettle black.
Pretty silly to accuse the domain ing of credit card fraud when he is an affiliate and takes no money at his sites
Jeff re: “Ethics mean nothing to lawyers, Literally.”
You are a guest in attorney Mike Berkens living room with the top domain attorney in the world John Berryhill the star of the day and you might want to change your tone. It’s like going to Oprah.com and leaving message saying ethics mean nothing to black female talk show hosts and network owners.
Hello Owen,
R. E. = ” “Ethics mean nothing to lawyers, Literally.”
All attorneys according to their Bar have to defend Innocent and guilty alike.
Where are the ethics here?
I counciled many attorneys and some good some bad. To blanket state I am against John Berryhill who I highly admire, is a low blow accusation.
Gratefully, jeff schneider (contact group) (Metal Tiger)
Interesting to see more comments on this topic. I was thinking , just yesterday, and because of new things that have just happened to share my story under this particular post regarding P&G
As many know, P&G has something called Connect&Develop which aims to attract more new ideas and innovations from outside product developers and innovators. Last year, I submitted to P&G through their Connect & Develop platform a product that I developed. The product development process took over a year and a half of thorough R&D which consumed time, effort and money. Three weeks after I had submitted my product last year to P&G I received and email saying they were not interested to take it to market (license it from me) .
Just two days ago I have noticed that P&G has launched a product ( in an Eastern European country) that is very similar (not identical) to my product in the sense of functionality and purpose in what I believe an attempt to tweak my product . At this stage I can’t take any legal action because my patent covers the US and few other countries but not that particular Eastern European country
And P&G subsequently bought the domain name from Marchex:
http://domainnamewire.com/2013/04/29/guilty-of-rdnh-procter-gamble-swash/
Hello MHB,
PG&E and etc. etc. etc. are all realizing the hose job that Search Engines are serving on their treasured Brands. Bottom Line ?
Generic URL Marketing is coming! Bottom line= (.COM ) Generic URL Marketing will take dominant Market Share ! Count On It. JAS 4/29/13
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
Alan Lafley is back to lead P&G
http://www.ft.com/cms/s/0/b1aad8d4-c3f8-11e2-aa5b-00144feab7de.html#axzz2UNRk4BmC