Re: [nc-udrp] another question on RDNH

["John Berryhill" <john@johnberryhill.com>]

> I wonder if we could ask respondents how big a monetary penalty or
> forfeitable deposit would be needed to effectively discourage most RDHN
> attempts?

There is at least one party out there who has taken to filing UDRP complaints
on the off chance that he may catch domain registrants unawares.  After all,
if one's email service is experiencing a technical glitch, if the complainant
doesn't serve the complaint (which is the case in about half the UDRP
proceedings I've defended, and for which there is no penalty), or if one is
on vacation for two weeks, then, boom - default decision.  All of the time
pressure in a UDRP proceeding is on the respondent, who generally has to deal
with a complaint prepared in considerably more than 20 days.  If the provider
is the NAF, then the respondent has less than 20 days to respond, since the
NAF interprets the UDRP's "submission" of a response to be their "receipt" of
the response.

For example, the respondent in the jet-tour.com (one of the "cancelled"
domains I've collected www.jet-tour.com) periodically sends me threatening
email demanding to know how I stole his domain name.  He was in the hospital
from an extended illness, and had no idea he'd lost the domain in a UDRP
proceeding.  "Cancellation", by the way, is an issue we ought to address, and
I'll have more on that later.  Some panelists have taken to spontaneously
ordering cancellation in close cases, which has had hilarious results (e.g.
the respondent in montgomerymall.com simply re-registered the domain name and
has gone on with his business).

But getting back to the point, as documented at
http://tobacco.com/attempted-hijacking/NAF97103/mf-rdnh/item-02.jpg
the complainant in the tobacco.com case was the same joker who brought the
complaint against america.com.  He used much of the same paperwork and
falsified documentation and, in places, forgot to change "america.com" to
"tobacco.com".  Although 15(e) of the UDRP defines RDNH as having "brought
the complaint" in bad faith, one panel has now interpreted the word "brought"
as "brought and maintained".  In other words, while the Policy refers to the
act of bringing the complaint initially, we now know that a bad faith
complainant gets off the hook by withdrawing the complaint if any resistance
is met, and lives to find another target.

Until very recently, at the National Arbitration Forum, this sort of
complainant behavior results in a double rip-off of the respondent.  Not only
does the respondent have to scramble to gather evidence and to prepare a full
brief in the time allotted in US civil cases for a mere responsive pleading
(which is a much simpler sort of thing to write), but if the respondent paid
the NAF "panelist fee", then the respondent finds that his "panelist fee" is
non-refundable if the complainant withdraws.  In the converse situation,
where the complainant paid for a three member panel and the respondent
defaulted, then the NAF would refund the complainant's panelist fee.

Fortunately, the NAF has since rescinded its "complainant's only" refund
policy, although they curiously allowed the universitymall.com case to go to
a panel, while in identical circumstances, not only did they not allow the
tobacco.com case to go to a panel, but they are still keeping Mr. Fisher's
money which he paid for a panel he never received, and they refuse to refund
it to him.  At a minimum, RDNH attempts by bad faith complainants should not
be used as an excuse for an arbitration provider to take money from
respondents under the false pretense that it will be used to pay for a panel.

As a reference point, and after consultation with other attorneys who have
defended clear RDNH cases, legal fees for "easy" cases generally run in the
neighborhood of $1,000 or less, which would not be an unreasonable type of
"bond" requirement.  In similar types of speedy civil replevin cases, a bond
requirement is the norm.  The objection that this creates an added expense
for complainants, while the UDRP is laudably an inexpensive proceeding, is
readily answered by considering what kind of valuable "famous" trademark is
owned by a party which can't come up with something on the order of $1,000.

Generally, though, respondents who feel they have been unduly set upon by a
bad faith complainant are not thereafter possessed of a desire to change
anyone's behavior or to make a political point.  They simply want to be made
at least partially whole from having had to deal with an unwarranted and
time-pressured nuisance.