A one person panel just awarded a golden three letter domain to the complainant.
The domain name BJP.com and it was awarded to the Bharatiya Janata Party (BJP) of New Delhi, India
The complainant did not have a registered trademark on the domain name and the domain holder has held the domain since 1997.
Here are the relevant facts:
“The Complainant, Bharatiya Janata Party, is a leading political party in India, popularly referred to as BJP. The Complainant in alliance with other parties was in power between the years 1998 – 2004 with Mr. Atal Bihari Vajpayee as the Prime Minister and Mr. Lal Krishna Advani as the deputy. The Complainant is the biggest constituent of the National Democratic Alliance (NDA) that is currently the major opposition party in India. The Complainant owns the domain name <bjp.org> since the year 1995.
“The Respondent registered the disputed domain name <bjp.com> on October 30, 1997.
“The disputed domain name was directly linked to the website of All India Congress Committee (AICC) but is no longer linked to the AICC website. The Respondent’s website currently displays the message: “we will be back shortly with new look and feel, Bharath Journals and Publishers Team”.
Here is the relevant findings of the panel:
“The first element under paragraph 4(a) of the Policy requires the Complainant to prove the disputed domain name is identical or confusingly similar to a mark in which it has rights.
“The Complainant has provided documents that show extensive media coverage, unsolicited media references and published news reports referring to the Complainant as BJP over a period of time.
“The Complainant has provided evidence of third party websites and public websites that refer to the Complainant as BJP.
“Based on this material it is clear that the public has come to associate the term BJP with the Complainant’s political party through long and continuous use. The Complainant has therefore successfully established in these proceedings that it is extensively referred to as BJP by the media and by the public at large.
“The Panel therefore finds the Complainant has established that it has acquired distinctiveness and secondary meaning in BJP as an unregistered trademark.”
“”Under the Policy, social organizations such trade unions and political parties are recognized as having common law rights in their unregistered trademark based on length of use or of widespread use of their name.:”
“The Complainant has shown substantial use of the abbreviation BJP as a trademark in order to claim rights and secondary meaning in the abbreviation. The evidence provided by the Complainant include documents that shows the mark is widely used in an abbreviated form by independent commentators in the media and by the public that refer to the Complainant only by its abbreviated form. This is sufficient to establish trademark rights in the three-letter abbreviation of the Complainant’s name.”
“Based on the evidence and the facts and circumstances in the present case, the Panel finds the trademark BJP is well known in connection with the Complainant. The Panel finds the Complainant has established common law rights in its unregistered trademark BJP and that the Complainant has continuously and extensively used its BJP mark. The Panel finds the disputed domain name <bjp.com> is identical to the BJP mark in which the Complainant has rights.
For all the reasons discussed the Panel finds the Complainant has satisfied the first element under paragraph 4(a) of the Policy”
B. Rights or Legitimate Interests
The second element under paragraph 4(a) of the Policy requires the Complainants to make a prima facie case that the Respondent lacks rights and legitimate interest in the disputed domain name. Once such a prima facie case is made, the burden shifts to the Respondent to demonstrate rights and legitimate interests in the domain name”
“The Complainant has argued that the Respondent has not used the disputed domain name for any legitimate activity except to create links to the Complainant’s rival political party and Respondent has not submitted sufficient evidence of bona fide legitimate activity under the name. As the Respondent is not authorized to use the Complainant’s mark, the Respondent has no rights or legitimate interests in the disputed domain name.”
“The Respondent has not filed any evidence in these proceedings to show that he had a business prior to 1997 to justify honest adoption of the name and registration of the disputed domain name. ”
“The documents submitted by the Respondent pertaining to its business is a certificate under Shops and Establishment Act dated July 2008. Further, there is no evidence on record to show that the disputed domain name was used during the period 1997 to 2008, and from this the Panel infers that the Respondent till 2008 passively held the disputed domain name. ”
“In its response the Respondent has stated that it proposes to the use of the website in connection with its business once the dispute is over. ”
“Exhibit A of the Respondent’s supplemental submission shows screen shots of the archived website linked to the disputed domain name. On scrutinizing these, the Panel finds that the screen shots show some advertisements for a Hindi film on December 10, 2008 and links to news items dated February 16, 2009 and February 17, 2009. What is significant is that there appears to be little no original content on the website. The Panel is not convinced that the screen shots of the Web pages provided by the Respondent show the Respondent runs a bona fide publishing business or has used the disputed domain name in connection with the said business. Further the purported documents showing use in connection with the publishing business is provided for a very short period of a few months, whereas the Respondent has held the disputed domain name for nearly fourteen years.”
“As rightly mentioned by the Complainant, no information or evidence about the nature of the Respondent’s business has been provided in these proceedings.”
“The Respondent does not mentioned what type of publishing business it runs, whether it is publishing books or does some kind of online publishing.”
“Nor has the Respondent provided any other evidence that may prove the existence of a bona fide business such as yearly accounts or a statement of turnover, the names of books or journals published by the Respondent. For the reasons discussed, the Panel finds that the Respondent has not established that it uses the disputed domain name in connection with a bona fide offering of goods and services.”
“Bad faith lies in the deliberate and misleading use of another’s trademark for the purpose of diverting Internet users looking for sites associated with the owner of that trademark to the respondent’s website.”
“The Panel finds the circumstances of this case show that the domain name was registered by the Respondent with an intention to attract Internet users to the Respondent’s website by creating a likelihood of affiliation with the Complainant’s well known mark and to mislead users.”
“The circumstances and evidence presented in the case indicate that the Respondent has registered the disputed domain name with the intention of attracting Internet users to create a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, which is recognized as bad faith registration and use under paragraph 4(b)(iv) of the Policy.”
“The Respondent has argued it had no knowledge of the disputed domain name being linked to the congress party website and ascribes this misdirection due to hacking of its account. This argument seems unconvincing as the Respondent claims it runs its business from the website it is unlikely that it has not noticed that it has been directly linked to another site. This means one of two things that the Respondent is not actively using the disputed domain name and the website linked to the disputed domain name thereby any hacking or misdirection goes unnoticed by the Respondent or that the Respondent is willfully turning a blind eye to this misdirection from the disputed domain name. As the owner and registrant of the disputed domain name the Respondent has a continuing responsibility to ensure that the domain name does not infringe any third party rights or used in any improper manner.”
“The Respondent has owned the disputed domain name since 1997 and from the evidence it can be inferred that the Respondent did not actively use the disputed domain name. ”
“This can be inferred from the Respondent’s statement that it was unaware of the redirection of the disputed domain name to the Congress party website.”
“If the Respondent had indeed been using the disputed domain name in connection with a bona fide business, as it has asserted in its pleadings, it ought to have known about the misdirection to the website to the Congress party. ”
“Therefore the Respondent’s submission that it came to know of the hacking and misdirection after receiving an email from the Registrar indicates that the Respondent has passively held the disputed domain name. Further the Panel notes the current use of the disputed domain name is a passive holding as is evident from the message posted on the website and the Respondent’s admissions that it proposes to use the domain name as soon as this dispute is concluded. ”
Guys if you have a valuable domain name that is hit with a UDRP you HAVE to get a three member panel.
If you don’t this is what can happen
shocking
name the panellist please, he needs a dressing down, publicly
hopefully they appeal this and cost the complainant a lot of money and shame this criminal at wipo
outrageous
they have the .org ffs
they are not a commercial enterprise and are based in india
wtf do they want or need or have right to .com for?
same owner for 14 years with hundreds of businesses, at least, worldwide with that acronym
time to tear down this scum institution known as wipo
clowns
Quote:
“The Respondent has not filed any evidence in these proceedings to show that he had a business prior to 1997 to justify honest adoption of the name and registration of the disputed domain name. ”
So now we need to have a business BEFORE we register a domain name???
WTF !!!!!!! Common advice, and common sense tells us, to secure your domain name before you launch your business.
This panelist should be waterboarded and then fired.
The complainant has no TM, is from India and doesn’t even own the .in/.co.in – I think this sets a bad precedent.
Panelist probably got bribed.
The BJP is HUGE in India, and both the Complainant and Respondent were Indian. The equivalent situation here would be someone registering “GOP.com” and directing it to the Democratic Party, but that’s not really a close analogy, since “BJP” is the standard name of the Bharatiya Janata Party. Ask any Indian you know whether “BJP” is a recognizable mark in India.
The Respondent is said to be represented by The-Internet-Lawyers.com. Go ahead and take a close look at that site.
@John Berryhill
BJP may be a big party in India, but is this enough to make a domain seizure legit? And, in any case, I don’t think the owner was using the domain against BJP, wasn’t he?
John: Were you representing the complainants in any way in this case?
Do you have any thoughts on the previous comments above yours, here? I have a hard time understanding how a respected attorney as yourself can defend this ruling, and because I don’t know nearly as much as yourself within this field, I would gladly take your views on it to see what I missed.
With regards to the-internet-lawyers.com, I suggest you take a closer look at http://singhandsingh.com/
Regards
Peter
Can the loser of this case bypass UDRP and take this to an Indian court?
@Joe,
Apparently, the owner of BJP was directing the site to BJP’s political rival during an important verdict from the Supreme Court involving these two parties.
“The complainant has no TM, is from India”
The Respondent is from India too, where BJP is a household term for the name of the political party which holds the second largest number of seats in the Indian Parliament.
If he was going to start his “Bharat Journals and Publications Team” website, he had plenty of notice to do so:
http://www.thehindu.com/news/national/article811005.ece
Aside from which, if the Respondent claimed he’d had the domain name for 14 years, he was lying.
In 2003, the domain name was registered to a BLTC Research in the UK, which apparently used the domain name as “Brighton Journal of Philosophy” and notably in connection with promoting the use of MDMA (Ecstasy).
Just before its renewal date in 2008, the contact changes to an SK Creations in Clearwater, Florida, which has a gmail address and a number of generic and three letter domains. Then, it moves to GoDaddy and Domains By Proxy. Given that the nameservers stay as BLTC, it looks something like a hi-jack scenario. Stephen Kennedy is fairly well known, though, and could probably shed some light on it. It could have been a fortuitous pick-up from a company which no longer wanted the domain name.
Briefly, in 2009, the domain comes out of privacy at GoDaddy as being registered to “Iahead” in Bangalore, India.
It then goes back into privacy, is moved to Enom, and is registered to a “Delaxo Solutions Ltd.” in early 2010, and goes back under privacy.
Finally, when the UDRP is filed, the registrant information is again “Iahead”.
The notion that the Respondent had this name for 14 years is, however, complete bullshit.
What’s interesting is that the Panel (as most panelists don’t have a Domaintools subscription) assumed the Respondent held the domain name for 14 years, and that impression didn’t seem to change, even though the Respondent submitted an affidavit about his registration and use of the domain name.
The panelist
No problem
Harini Narayanswamy
@JohnBerryhill
At first I was outraged, but THANKS for clarifying … that changes EVERYTHING. But typical domainers will just ignore your comment. Standard.
““The Complainant has argued that the Respondent has not used the disputed domain name for any legitimate activity except to create links to the Complainant’s rival political party”
So bottom line, they linked to complainants RIVAL/COMPETITOR. FAIL. Stupid move.
Ace
So
Don’t isn’t that fair use
Don’t political parties in the US do the same thing
Think so
“BJP may be a big party in India, but is this enough to make a domain seizure legit?”
Ask any Indian “What is the BJP?” and they will tell you. That kind of name recognition is tough to obtain in a country of a billion people.
“And, in any case, I don’t think the owner was using the domain against BJP, wasn’t he?”
He was directing it to another political party. Are we reading the same decision?
“So
Don’t isn’t that fair use
Don’t political parties in the US do the same thing
Think so”
He denied he was doing it, Mike. He said the re-direction was the result of his site being hacked, which is also bullshit. And if you let my other comment out of moderation, there is more apparent BS.
“”And if you let my other comment out of moderation, there is more apparent BS.””
Just did John
“John: Were you representing the complainants in any way in this case?”
No. I’m not even particularly fond of the BJP.
“I would gladly take your views on it to see what I missed.”
Well, if Mike lets my longer comments out of moderation, you will.
Peter, perhaps you can explain what Singh and Singh has to do with the-internet-lawyers.com, which is a “lorem ipsum” filled placeholder website registered under WHOIS privacy.
Given that there are millions of Sikhs named “Singh”, I don’t find that website to be particularly informative either.
@John Berryhill
“He was directing it to another political party”
I hadn’t read this. Well, in that case, things are different, but only because of the stupid move on the owner’s part. If he had used the domain correctly, the magnitude of the party alone IMO wouldn’t have justified the seizure.
“Just did John”
It says “awaiting moderation” here still (and I re-loaded a couple of times).
“If he had used the domain correctly, the magnitude of the party alone IMO wouldn’t have justified the seizure.”
That’s correct. However, it is clear that the Respondent was not being honest with the Panel, and did not have the domain name for 14 years.
I’m guessing it is the hyperlink that is causing the moderation problem, so I’ll take that part out…..
“The complainant has no TM, is from India”
The Respondent is from India too, where BJP is a household term for the name of the political party which holds the second largest number of seats in the Indian Parliament.
If he was going to start his “Bharat Journals and Publications Team” website, he had plenty of notice about the claimed “hacking”, since the BJP was complaining about the re-direct back in September of last year.
Aside from which, if the Respondent claimed he’d had the domain name for 14 years, he was lying.
In 2003, the domain name was registered to a BLTC Research in the UK, which apparently used the domain name as “Brighton Journal of Philosophy” and notably in connection with promoting the use of MDMA (Ecstasy).
Just before its renewal date in 2008, the contact changes to an SK Creations in Clearwater, Florida, which has a gmail address and a number of generic and three letter domains. Then, it moves to GoDaddy and Domains By Proxy. Given that the nameservers stay as BLTC, it looks something like a hi-jack scenario. Stephen Kennedy is fairly well known, though, and could probably shed some light on it. It could have been a fortuitous pick-up from a company which no longer wanted the domain name.
Briefly, in 2009, the domain comes out of privacy at GoDaddy as being registered to “Iahead” in Bangalore, India.
It then goes back into privacy, is moved to Enom, and is registered to a “Delaxo Solutions Ltd.” in early 2010, and goes back under privacy.
Finally, when the UDRP is filed, the registrant information is again “Iahead”.
The notion that the Respondent had this name for 14 years is, however, complete bullshit.
What’s interesting is that the Panel (as most panelists don’t have a Domaintools subscription) assumed the Respondent held the domain name for 14 years, and that impression didn’t seem to change, even though the Respondent submitted an affidavit about his registration and use of the domain name.
“I have a hard time understanding how a respected attorney as yourself can defend this ruling”
Okay, then explain this to me.
How is it that a guy with this contact information:
Vinay KM (info@iahead.com)
+91.99999999
Fax: +1.9999999
Bangalore
Bangalore, Bangalore 560072
…obtains a domain name in 2008 from someone in Florida, and then manages to get through a UDRP proceeding without the panelist ever knowing how or when he got the domain name?
By not telling the truth, that’s how.
Wow, I’m wondering where this leaves me as I own BJP.in, in fact it was suggested to me by the person who owned BJP.com at the time (BLTC research) that I should buy it which I and a friend did for $400. I think BJP.com was sold for mid 4 figures. A few months ago the traffic on my domain shot up to a couple of thousand unique hits in a couple of days due to the controversy around the .com bring redirected to congress.in. I imagine this may have contributed to the udrp case favouring the complainant around the purchase being in bad faith. Actually, at the same time that my friend sold BJP.com I had my BJP.in sell on desk for £4000 but the buyer didn’t pay up, I’m assuming it was the same person who bought the .com instead. I suppose the issue for me is how do I protect my domain, if I can at all…
desk=sedo.
One billion people of India know what BJP (Bhartiya Janta Party = Indian People’s Party) is.
As John B. said, it is a household name for decades.
It was BJP government in India for many years, before the current congress government.
Forwarding BJP.com to Congress party website is a bad faith use imo.
Those of you siding with the respondent can only be described as a bunch of know nothing whiners. This case was so obviously a slam dunk loser that the idea that anyone could defend the registrant much less slam a lawyer who makes his bread and butter doing this stuff is utterly amazing. Next thing you know some crackpot will come along saying the respondent should have gone for a three member panel. You guys are pathetic.
“Forwarding BJP.com to Congress party website is a bad faith use imo.”
Well, the odd thing about that is that the domain name registrant claimed he was not responsible for that and that, instead, he was using the domain name for a business of some kind (all that was there was a wordpress blog with Indian news items claiming to have been designed by some guy in South Africa).
The thing is, the re-direct lasted quite a while, attracted press attention in India, and this guy claims he didn’t notice it until his registrar asked him about it.
In other words, he never noticed that the website for his “business” was down for months.
Yeah, right… and that was the panelist’s reaction to this obviously stupid story.
It’s transparent bullshit.
People who pull crap like this in UDRP cases is what makes them harder and harder to defend. And, naturally, someone has to come along and question my integrity for pointing out the obvious here.
And so, of course, when you defend a domain name like this, you submit an affidavit which doesn’t identify yourself, and you use fictitious lawyers. This makes your case SO much more credible.
Wake up JB, there is nothing obvious to domainers except the money they make from pay per click. The king of domains (cough cough) you know him Rick Schwartz, the leader of the domain industry lol (industry lololololo) he’s the guy that thought he had an exclusive right to use the term voyeur for a voyeur site! Thats right, the king had a trademark on voyeur for voyeurism. OK!
To the masses this case is nothing more than another over reaching trademark holder trying to take away the rightful property of a domain name investor. What a joke this game and the people in it are. Domainers unfortunately overestimate their own intelligence while underestimating same in everyone else in the world. This case was so obviously foul yet it is the domainers that cry foul. Nothing is obvious except for the joke that has become known as domaining.
“in fact it was suggested to me by the person who owned BJP.com at the time (BLTC research)”
BLTC Research did not own bjp.com at the apparent time of its sale to the guy in India. BLTC Research owns a bunch of domain names which are used by a person in the UK to promote various interests relating to psychedelic drugs (apparently because entertainment is hard to find in Brighton, lol).
This domain name was due to expire in October 2008, but in April 2008 it was transferred to SK Creations. So, what “time” are you talking about? Because bjp.in has been owned by the same person since 2007.
“Domainers unfortunately overestimate their own intelligence while underestimating same in everyone else in the world.”
One of the fascinating things about the Dunning-Kruger effect is that it is not consistent across cultures.
Dunning-Kruger effect
Had no idea what that was. Checked it out on Wikipedia and decided to add Rick Schwartz’s picture to the definition. Fitting.
@JB
I may be wrong about my assumption regarding it being the same buyer for both domains. If I remember correctly, BJP.in was ‘purchased’ from me in earlyish 2009.
Oh Gosh!
It is actually a woman. What a shame.
Here are some bits:
http://links2.me/harini.narayanswamy/wipo/
She also runs some unknown law firm in India.
This decision smells.
Here’s some previous ownership clarity: I bought bjp.com from BLTC in 2008, and then resold the name quickly for a small profit to a domain investor on dnforum. I do not know if the person I sold it to is the same person who was a party to this dispute.
Steve,
Thank you for the clarity.
After it went into WHOIS privacy, the nameservers changed a few times which may, or may not, reflect a further chain of ownership.
And, Woser, great minds discuss ideas. Small minds discuss people.
“If I remember correctly, BJP.in was ‘purchased’ from me in earlyish 2009.”
I’m curious about your parenthetical punctuation of “purchased” in that sentence, because the registrant data for BJP.in hasn’t changed for years. But given that you are ostensibly in Brighton as is the quite fascinating Dr. Pearce, it is plausible that you may have made his acquaintance, assuming accurate WHOIS information.
But that would still place your registration of BJP.in prior to 2007, and there has been no substantive change of registrant information.
One of the other peculiarities of this market is the various economic transactions that can be difficult to categorize, so I certainly understand that “purchase” can be a tricky term for those transactions where “some friend of mine told me and another friend of mine to buy something and we did.” I have almost become convinced that waaaay too many people in business developed their idea of capital transactions while selling weed in high school – some possibility elementary school.
@jb
To clarify matters, I only used the term ‘purchased’ to highlight the fact the buyer of my domain, BJP.in didn’t pay up in the end. This unfinished transaction took place on sedo in May 2009.
The BJP is the main opposition party in India.
A while ago, the ruling party the Indian National Congress redirected the domain to its main site, this was inviting a law suit from day one.
I think more than anything else, BJP is a word I among 1.2 Billion other Indians, would only associate with the Bharatiya Janata Party, and this was being exploited by the Indian National Congress.
Sorry, but no surprise there that this ended the way it did.
Thanks!
@John Berryhill
I just checked out the “the-internet-lawyers.com” homepage.
Looks like they are definitely operating in the cloud. And the 2 second sound bit of angels singing when the page loads reminds of the opening scene for the Simpson’s.
Lara when you say the decision smells I assume that the odor you experienced is not akin to coffee. Wake up and take another whiff
This is America, not India. Should be sued for filing false claims…what is the world turning into?
@Dow Main
One thing about UDRP is it isn’t tied to any one country, despite the global nature of the Internet and domain names in general. In this specific dispute, both parties are based in India, and both gave arguments relevant to their region.
From what the others commented and the UDRP detailed (and if I understood it right), it mainly showed content relevant to India rather than the U.S. or any other part of the world.
Although I think that a 1 person panel should not be permitted, upon reading through all of the information presented about this case, it does sound like the Respondent’s own actions have led to the ruling going against them.
I’m about to gush. John Berryhill deserves a ton of credit for being the resource that he is in this community. I don’t have the time to do it nearly enough, but John always finds a way. And he’s not afraid to take positions that cut against the grain. This does not mean that I have a HUGE man-crush on John, so please do not read anything extra into this….not that there’s anything wrong with that.
Brett
respondent should sue ICANN & BJP political party for stealing his domain!!
Jay, refrain from any further consumption of the kool-aid, it appears to be effecting your judgement .
“This is America, not India.”
Both parties to this dispute were Indian. Accordingly, WIPO appointed an Indian panelist who made reference to relevant Commonwealth law in the decision.
When the parties are subject to the same laws, WIPO will typically appoint a panelist most familiar with the laws of the common jurisdiction in which the parties are situated. When the parties are in different jurisdictions, the tendency is to appoint a panelist who is familiar with the law in both jurisdictions, but a national of some other jurisdiction. That is not always possible, given the permutations, but the point is that panelists are not randomly selected.
That’s the problem with some arguments which call for a “taxi stand” approach to panelist appointment. The underlying idea is to avoid structural bias in panelist appointments. While “random” can equate to “objective”, whether it equates to “fair” is subject to reasonable disagreement. Of course any subjective process is subject to other biases, conscious or not.
Mr Berryhill,
Thank you for taking the time to answer questions relating to this UDRP. I would like to ask your opinion about something:
If another BJP based in another country, there are tons of them, had initiated this case do you think the result would have been the same?
If Rick owned it he’d point it to BlowJobsPorno.com
@Back in the real world
These things are case-to-case, so one decision doesn’t necessarily dictate how another should turn out. If a BJP party in Timbuktu files a UDRP while bjp.com or its domain holder does nothing to possibly associate with that party like this one did, then the UDRP isn’t likely to succeed.
No Acro, if Rick Schwartz owned it he would have pointed it to BJPsucks.com which would have been scattered with links to porn, a few competing services, and a tagline saying DON”T MESS WITH THE KING YOU MORONS
lol Smoka_J, instead red bull?
Apparently no consideration was given by the UDRP as to the unregistered trademark status of “BJP” at THE TIME OF REGISTRATION (1997), instead a case was made by the complainants that the term BJP gained status “over a period of time.” This alone should be enough to fault the decision and refer it back for appeal with a larger panel, if this is possible. While BJP appears in some google archive news searches of 1995-7, it would be tough to declare it had achieved unregistered trademark status at that point, which should be the determining factor for this test. Think about the local 3-letter regional and local companies that could claim their unregistered names had achieve “trademark status” under this decision. There would go the bulk of trade and investment in all lll.com’s etc.
Jim
The domain registrant has the right to ask for (a pay for) a three member panel.
If the domain holder fails to do so, then the case decided by the one panelist
Under the UDRP the panelist has to make a decision he doesn’t have the choice to kick it back to larger panel.
Hello:
First – 3 member panel should be mandatory to protect the little guy who doesn’t have and can’t
afford the big bucks like the big name domainers have.
Second – Most of these UDRP single member decisions have been subjective , arbitrary and
contradictory to say the least.
Third – The only way the small domainer is going to get any justice is for some of the big domainers
get hammered and lose some of their million dollar domain names to these arbitrary decisions and take a stand and clean up the UDRP Board and make them standardize their contradictory decisions.
I hear alot of talk on the blogs but don’t see much action from people who could and should be
doing something about it. Unless of course it’s to their benefit not to. Just a thought.
“Guys if you have a valuable domain name that is hit with a UDRP you HAVE to get a three member panel. If you don’t this is what can happen.”
Great advice from someone who can afford it.
Best Regards
Richard
Richard
Just like any other legal proceeding if you don’t have the money to put on a proper defense you usually lose.
“If another BJP based in another country, there are tons of them, had initiated this case do you think the result would have been the same?”
No.
I realize that people tend to boil these things down to “someone had a trademark claim for BJP and got the name bjp.com”, but that’s not accurate.
Had there been no evidence indicating that the domain registrant did not obtain and use the name for the manifest purpose of screwing around with the Bharatiya Janata Party, then that would be a different situation.
That is what makes trademark disputes fact specific.
The domain name had, in fact, been used for quite a long time by an English philosopher – David Pearce of Brighton – for a self-styled “Brighton Journal of Philosphy” from 1997 to roughly 2008. During that more than a decade of use of the domain name, the Indian political party had no complaint, no problem, no issue.
The domain name only became an issue when it was apparently acquired by someone in India for the apparent purpose of screwing around with the Bharatiya Janata Party. In response, the domain registrant gave a transparently lame excuse.
It’s not that the guy didn’t hire or couldn’t afford a good lawyer or anything else. It’s absolutely clear that the domain name was acquired and used for nefarious purposes in relation to an entity that is quite well known to the guy who was doing it.
And then he shows up, lies about how long he’s had the domain name and uses lawyers who don’t seem to exist.
How hard is that to figure out?
This is not rocket science. If Dr. Pearce was still using the domain name for his Brighton Journal of Philosophy, there would be no issue here.
Mr Berryhill,
Thank you for taking the time to answer the question.
I fully understand and agree with the decision, I just wanted your opinion on wether you thought another BJP complainant would win the UDRP based on the misuse of the doamin even though it did not affect them in the same way, which you answered.
Thank you very much.
“the unregistered trademark status of “BJP” at THE TIME OF REGISTRATION (1997)”
The first BJP prime minister of India was in 1996, Jim.
Well before that, the BJP had won the state assembly elections in Gujarat and Maharashtra (the second most populous state), and had obtained a substantial number of seats in Karnataka (the state where Bangalore is located – the domain registrants purported location).
But the domain name WAS NOT REGISTERED by this respondent in 1997. It was registered in 1997 by an English philosopher in Brighton who used it for the “Brighton Journal of Philosophy”. There is absolutely no problem with that.
THIS registrant, an Indian, in India, obtained the domain name in 2008 or 2009.
So, in the dispute between this complainant and this registrant, what does it matter who was doing what in 1997?
Did the new registrant continue the Brighton Journal of Philosophy? No. So the fact that it was used by somebody else for some other purpose prior to 2008 doesn’t matter.
What matters is what THIS GUY had in mind when he obtained the domain name in 2008.
And besides, Richard, having a 3-member panel isn’t a guarantee the respondent will necessarily win, either.
anyways, is it allowed to hire the lawyer/panelist to take the domain away?
BJP party just hired this lawyer to tkae the domain away and that’s all here. look at her trackrecord, 38 1-person panel judgements, verus 1 case when she was a a part of a 3person panel
I am amazed that not all panelists have access to DomainTools’ paid services, as Berryhill mentioned. How can they make decisions without proper access to whois history?
@johnberryhill thanks for the clarification. I took the facts of the article as accurate without having read your comments. Understood and agreed with your points, but very suspicious of a 1-person panel for any decision in any industry.
“anyways, is it allowed to hire the lawyer/panelist to take the domain away?”
Why not? UDRP allows complainants to opt for just 1, to 2, to 3 panelists if they see fit.
Perhaps fortunately, the same thing doesn’t have to happen to you if you don’t do what the respondent did in this case.
Dave
Actually the domain holder can choose and pay to have a three member panel, otherwise you get a 1 person panel
two is not an option
“I am amazed that not all panelists have access to DomainTools’ paid services, as Berryhill mentioned. How can they make decisions without proper access to whois history?”
The extent to which UDRP panelists should do their own fact finding is debated among panelists. Some believe that decisions should be based solely on the complaint and response filed by the parties. Some are often frustrated that the filings leave them with more questions than answers.
The hazard there is that a panelist may find something on his or her own, misinterpret it, and provide a decision based on arguments neither party made.
Oddly, while panelists have the ability to put questions to the parties, they rarely use it. But that can go to an extreme too. In one proceeding years ago, the panelist went through so many rounds of questions and answers that the both parties became so annoyed that they went ahead and settled on their own.
This is all wrong! If the owner was not using the domain to misrepresent the Indian party they should not have any rights.It’s like a celebrity fighting for a surname. example: I should have the right to own apple.com as long as I do not sale apple products,computers or display the apple logo without permission.Overall it’s their brand.The word is not theirs,the idea is.
How much does it cost to have a three seat panel?
Thank you.
Thank you, @ John Berryhill, for extensive input on the matter – enjoyable reading!
Please comment on the lying rep who claimed ownership for 14 years, as regards my take:
The mafia ICANN and Verisign are allowing insider Registrars to hire shills to represent domain names, who have little to do with that domain name, other than their info on the WhosIs, to hide their manipulating the domain name, such as selling it.
They manipulate the creation date on the WhosIs on registration of new domain names. I have been observing that in my research, and here is a fast proof:
The WhosIs on WeingerGate.com showed a creation date of:
05-27-10
until my conversation with Elliot Silver, here:
http://www.elliotsblog.com/oversee-missing-out-on-weinergate-2356
As confirmed by Elliot, that is what the WhosIs info showed. After that conversation, because it is so obvious a manipulation that it is evidence, the WhosIs got cleansed, so that the new creation date is:
31-jul-2011
according to the WhosIs for Weinergate.com:
Domain Name: WEINERGATE.COM
Registrar: DOMAINEVENT.CA, INC.
Whois Server: whois.domainevent.ca
Referral URL: http://www.domainevent.ca
Name Server: NS1.BODIS.COM
Name Server: NS2.BODIS.COM
Status: ok
Updated Date: 31-jul-2011
Creation Date: 31-jul-2011
Expiration Date: 31-jul-2012
while DomainTools still shows the original date as:
2010-05-27
This is what they do. The text message happened on 05-27-11. The domain was reserved, and zone files messed with to backdate the domain one year. This is the common thing I have been observing: backdating one year of recent domain registrations. But I brought it up on Elliot’s blog as proof of this practice, that weiner is a misspell of wiener. Noone would have registered, “Weinergate” until the event 05-27-11.
Verisign sells ConsoliDate, a service to consolidate the expiration dates of a portfolio to conform to one date, which is disadvantageous to the portfolio holder, in my view. For the same reason that they are able to manipulate the zone files of the expiration dates in a portfolio, Verisign is allowing this feature to be abused, so that it is deceptive as far as value, and as far as UDPR.
Your explanation about BJP.com was more evidence confirming the same: murky ownership, with strings pulled by powerful internet insiders who wish to remain anonomous.
On costs for the 3 member panels, it varies depending on what forum you’re using. At NAF, I think it’s the same as it costs for a complaint. At WIPO, I think it’s $1,500 for the respondent, then an extra $500 that the complainant has to pay (so it’s kind of a dirty way of forcing a complainant to pay more money. maybe not dirty if they’re trying to hijack, but, whatever).
I blogged about this case and I don’t see the big deal either. Mr. Berryhill was on the money in the comments above.
@ Louise
Yes, the domain name appears to have expired in May of 2011 (a year after it was registered), and after it dropped a different company picked it up. Since it dropped, it has a new creation date. As I mentioned before, you don’t seem to understand the domain lifecycle.
So where’s the future trend domains again ? These all look like current trends to me .
Oh I get it . . .back to the future trends auction !
@Louis
As Elliot suggested, quite often things which appear to be the result of interesting conspiracies have more mundane explanations.
The name in question was created in May 2010 for a term of one year. The name was not renewed, and the WHOIS history is consistent with a one-month registry auto-renew, followed by another month of redemption grace period and 5 day delete cycle, and was dropped at the end of July 2011 – and that means actually dropped from the registry. It was re-registered at that time, and has a new creation date. It looks like a perfectly normal registration cycle.
Now, sometimes you get mismatch between registrar and registry creation date data, as some registrar whois systems return the date at which it entered their database. Some of them used to do this, and so there are “baked in” wrong creation dates in archives of registrar whois data.
As to why someone would have registered the name in 2010, there are a number of reasons why that happens. If you want to see politically interesting domain names become registered from time to time, then watching the smarttechcorp.com nameservers can be fun.
Whoops… that’s smartechcorp.net
Hi @ John Berryhill, Thanx for responding! Your insights make theDomains rich.
Registrations getting back-dated a year or so I have noticed a few times, and thought this finally is concrete proof:
W-e-i ner is a misspell of w-i-e ner. Why would anybody register the misspell of a low value domain name on
THE EXACT DATE ONE YEAR PRIOR, 05-27-10
to the infamous tweet on 05-27-11
http://en.wikipedia.org/wiki/Anthony_Weiner#Resignation_from_Congress
about the person whose last name is spelled, W-e-i-ner?
You people can’t concentrate, because the salaciousness of it is too distracting! I hate that, but this is the evidence! Please look at it again:
http://www.domaintools.com/research/whois-history/?page=details&domain=weinergate.com&date=2010-05-27
The infamous tweet took a
This is the final thing I am going to say:
It’s a new form of “domain tasting.” Insiders at the Registry level test register a domain name, backdate it one year, and try to sell it. If it doesn’t sell, they allow it to “expire.”
Only in the case above, the insiders goofed to backdate such an obvious proof of their activity, and allowed it to “expire” for that reason, because I called it on Elliot’s Blog. Yes, the insiders read Elliots Blog and theDomains, and they are among us. I always suspected the lack of vertical separation between Registrar and Registry – this is further proof it doesn’t exist, whether official or not!
@Louise
You are as wrong as you are paranoid.
The first cache date at Domaintools is…..
——–
Cache Date: 2010-05-27
Registrar: NAMEKING.COM, INC.
Server: whois.nameking.com
Created: 2010-05-25
Updated: 2010-05-25
Expires: 2011-05-25
———
In other words, that is a copy of whois data which was stored by Domaintools’ system ON May 27, 2010.
It is not older data which has been “backdated”. It is a snapshot of data that was actually taken on May 27, 2010.
The creation date was 5/25, and I’ve walked through the sequence above.
I gather you went through this with Elliot already, and still don’t understand why you are wrong. So, it is unlikely that having it explained to you by someone else is going to help.