Man tries to reverse hijack gains.com: All pain, no gains

WIPO panel rules aspirational entrepreneur filed a cybersquatting claim in bad faith.

A World Intellectual Property Organization panel has found (pdf) Axel Sylvian van den Braken to have tried reverse hijacking the domain name gains.com.

Van den Braken has an Instagram account @gains. He also has a website at gains.plus where you can buy a journal, and recently filed trademark applications to sell supplements under the name.

Domain investor Ammar Kubba of afterTHOUGHT purchased the domain name in 2021.

Van den Braken reached out to afterTHOUGHT in 2023 regarding acquiring the domain for a planned business venture. He stated he couldn’t afford to buy the domain outright.

In the middle of last year, afterTHOUGHT started licensing the domain to GamerGains, Inc. for a play-to-earn cryptocurrency gaming platform.

As stated by the panel, the Complainant complained that this fresh use “for a gambling and crypto-casino platform operated by a third party creates severe tarnishment, misleads consumers, and damages the Complainant’s reputation.”

The three-person panel determined that van den Braken did not show that the domain was identical or confusingly similar to a mark in which he had rights.

In finding reverse domain name hijacking, the panel wrote:

The Complainant submitted no evidence of the purchased distinctiveness required to support a claim of common law trademark rights. See Zelig AI, LLC v. dong xuyan, National Arbitration Forum Claim FA2410002120196. Instead, the Complainant relied primarily on recently filed trademark applications and provided only minimal evidence in support of its alleged common law rights. It is well established under the Policy that pending trademark applications do not confer rights. Moreover, the Complainant failed to submit credible evidence of sales, advertising, or public recognition sufficient to demonstrate purchased distinctiveness, despite asserting the existence of goodwill spanning eight years.

The Panel also notes that the Complainant’s own correspondence from July 2023 described its business plans as aspirational and acknowledged a lack of capital to acquire the disputed domain name. These statements directly contradict the Complainant’s assertions of longstanding trademark rights.

In light of the Respondent’s continuous ownership of the disputed domain name long ahead of the Complainant purchased or claimed any trademark rights, the Complaint lacked any realistic prospect of success. The Panel further observes that the Complainant had previously approached the Respondent in an attempt to purchase the disputed domain name. Following failing to acquire it through negotiation, the Complainant initiated this proceeding, effectively seeking to obtain the disputed domain name without payment.

Accordingly, the Panel concludes that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding. The Panel therefore finds that the Complaint amounts to Reverse Domain Name Hijacking within the meaning of paragraph 15(e) of the Rules.

The Complainant was self-represented, and John Berryhill represented afterTHOUGHT.