Case Number: D2013-1603
Complainant: Timbermate Products Pty Ltd of Nunawading, Victoria, Australia
Represented by: K & L Gates LLP, Australia
WIPO Domain Name Decision: D2013-1603
Timbermate Products Pty Ltd of Nunawading, Victoria, Australia, represented by K & L Gates LLP, Australia has just been found guilty of Reverse Domain Name Hijacking (RDNH) on the domain name Timbermate.com
The one member panel of Tony Willoughby gives an excellent recap of UDRP decisions where RDNH was found and the basis for finding RDNH.
Here are the relevant facts and findings by Mr. Willoughby:
The Complainant has owned its domain name timbermate.com.au since at least December 7, 1998.
The Domain Name was registered on May 14, 2003, when, according to the Complaint, the Respondent and his company Timbermate Inc. “were authorized and exclusive distributors of the Timbermate Products in the USA pursuant to an oral agreement with the Complainant.”.
This agreement was terminated by the Complainant in April 2011 and in or around June 2013 the Respondent used the Domain Name to resolve to a website promoting his new woodfiller product which he sells under the GOODFILLA name.
Following correspondence between the parties’ representatives the link to the Respondent’s website was removed. The Domain Name currently resolves to a parking page of the Registrar featuring pay-per-click links.
The Complainant asserts (and the Panel has no reason to doubt) that the Respondent registered the Domain Name in 2003 when he was the Complainant’s authorized exclusive distributor for the Complainant’s woodfilling products, but that that distributorship was terminated in 2011 and that the Respondent has subsequently used the Domain Name to resolve to another website of the Respondent promoting sales of the Respondent’s competing “Goodfilla” product.
On the face of it, it would appear to the Panel that the Respondent now has no rights or legitimate interests in respect of the Domain Name.
However, in light of the Panel’s finding under the next element of the Policy (D below) it is unnecessary for the Panel to come to a concluded view on this.
Nowhere in the Complaint does the Complainant assert that the Respondent registered the Domain Name in bad faith. Indeed, the Complaint makes it clear that the Respondent registered the Domain Name in 2003 while he was the Complainant’s United States exclusive distributor. Some eight or more years later following termination of the distributorship, the Respondent commenced a bad faith use linking it to a website selling his competing product. The Panel has no difficulty in finding that this subsequent use constitutes use in bad faith for the purposes of the Policy.
Accordingly, on the evidence of the Complainant, the Respondent registered the Domain Name in good faith and has subsequently used it in bad faith. Yet, despite the use of the conjunctive “and” in the heading to this section of the decision, which is taken from paragraph 4(a)(iii) of the Policy, the Complainant nonetheless contends that the Respondent registered and is using the Domain Name in bad faith.
The Complainant has failed to satisfy the Panel that the Domain Name was both registered and is being used in bad faith.
Continue reading at TheDomains.com
Source: http://www.thedomains.com/2013/11/14/timbermate-products-pty-ltd-guilty-of-reverse-domain-name-hijacking/