Cobb International (Pty) Limited of Wynberg, Sandton, South Africa, represented by DM Kisch Inc., South Africa. has been found Guilty of Reverse Domain Name Hijacking (RDNH) on the domain names cobbamerica.com and cobbq.com
The Complainant contends that the Domain Names are identical or confusingly similar to the Complainant’s registered trade marks, that the Respondent has no rights or legitimate interests in respect of the Domain Names and that the Domain Names are being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
The Panel notes that in the original Complaint the heading of the section relating to paragraph 4(a)(iii) of the Policy is headed “The domain name is being used in bad faith” whereas the heading in the model form from which the Complaint was derived reads “The domain name(s) was/were registered and is/are being used in bad faith”.
“Neither the Complaint nor the amendment to the Complaint contains any allegation that the Domain Names were registered in bad faith.”
Instead it is asserted that paragraph 4(b)(iv) of the Policy enables a finding of bad faith registration and use on the basis of bad faith use alone.
The bad faith allegations concern the continuing use of the Domain Names by the Respondent and the Respondent’s attempts to sell the Domain Names to the Complainant and others for USD 50,000 upon termination of the distribution agreement.
This Panel has had occasion to make findings of Reverse Domain Name Hijacking in circumstances where the complainant was legally represented and where the complaint was based solely on bad faith use. In both those cases the complainants’ representatives had demonstrated knowledge of the UDRP and the need to establish what is known as the conjunctive requirement (bad faith registration and bad faith use).
Generally, in the view of the Panel, where a complainant is professionally represented, the complainant should be taken to have the knowledge of its representative. In both the above cases the case papers demonstrated relevant expertise in the hands of the complainants’ representatives. In this case the Complainant’s representative is well-known in the field of intellectual property and might, in the view of the Panel, be presumed to have the relevant expertise, but it appears to have taken the view that bad faith use on its own is sufficient to merit transfer of a domain name under the Policy. Was this an intentional “mistake” or ignorance?
The Panel doubts that a firm as distinguished as the Complainant’s representative would intentionally seek to abuse this administrative proceeding, but it is nonetheless the fact that the person responsible for drafting the Complaint worked from the online form available at the Center’s website and went to the trouble of changing the template heading as described in Section 5A above to omit any reference to bad faith registration.
Why?
Moreover, after the Center’s email communication of December 4, 2013 (see section 3 above), the Panel would have expected the Complainant to have focused on the issue of bad faith registration and come forward with express, relevant and clear arguments, but the Complainant did not do so.
Misconceived complaints of this kind put respondents minded to respond (many are not so minded) to significant and unnecessary expense. If the Respondent is making abusive use of the Domain Names (the Panel is insufficiently informed to make a finding one way or the other), there are other means available to the Complainant to seek redress.
In this Panel’s view, the strongest method available to panels to register their objection to fundamentally flawed complaints of this kind is to make findings under paragraph 15(e) of the Rules.
The Panel finds that the Complaint constitutes an abuse of the Administrative Proceeding.””
