UDRP complainant argues others’ use of trademark is proof — A first?

Complainant also asks the panel to simply ignore one of the three requirements of UDRP.

Here’s a bizarre cybersquatting dispute…

A Fresh York firm called Unplugg, Inc. filed a UDRP against the domain name unplugg.com. The firm only has rights in the Unplugg mark starting this year, which is following the domain was registered. In order to win a UDRP, you have to show rights to a trademark that pre-dates the registration of the domain.

So Unplugg makes a couple of novel arguments to try to overcome this.

First, it argues that although it didn’t have rights in the mark when the domain was registered, other firms did. It thinks this ought to be taken into account.

Second, it states that since it’s obvious the domain owner is cybersquatting, the panel ought to be able to ignore one of the three prongs necessary to prove a UDRP.

While the panelist got the overall decision correct (it was pretty easy), I am a bit surprised regarding how Kenneth L. Port analyzed the case. He found the deficiency with the first prong–that the domain matches a trademark in which the complainant has rights. Most panels would grant this to the complainant as the dates of their rights don’t matter. Where the dates matter is the third prong, which is that the domain was registered and used in bad faith. Port has handled a lot of cases so I’m surprised by this.

Also, Port admonishes the respondent for only replying in Korean even when asked to respond in English. Yes, the respondent in this cases needed to respond in English since of where the domain was registered. But the respondent probably doesn’t know English. He didn’t do it to slight the panel.