Keep Filing and Filing and…: Domain Arbitration is Like The Energizer Bunny
There’s no limit to the number of times a complainant can file a UDRP.
I’ve written a few times regarding domain arbitration cases in which the complainant re-files a case for the same domain name. It seems kind of like an appeal process for the complainant (an opportunity not afforded to respondents).
Following seeing varying panel responses to refiled cases, I was confused regarding what the rules are for filing a case for the same domain twice. Perhaps that’s since there aren’t any rules.
Kristine Dorrain, Internet Legal Counsel for National Arbitration Forum, explains:
The UDRP is silent as to if disputes can be “tried twice.” Since of this, the FORUM doesn’t limit the number of times a complaint may be filed against a particular domain name. Each panel then gets to decide what to do with the issue of cases being re-heard.
But there’s the rub. By the time a panel decides whether or not to hear a case, the respondent has filed his response, and thus by now paid for legal defense (again) and perhaps a three person panel (again). You can see how a complainant could merely refile the same case over and over, just to wear down the domain owner.
Dorrain explained that many panels use the United States principle of “res judicata” to decide if they ought to hear the case. This principle basically states the case ought to stand unless there is a compelling reason. A compelling reason may be fresh evidence that could not have reasonably been discovered at the time of the original filing.
This can become interesting when the complainant doesn’t tell the panel that the case was filed ahead of, as Dorrain explains:
One particularly interesting issue is where parties don’t tell the Panel of a previous UDRP filing. If the complainant does not disclose this information, the Panel may not be aware that the case is refiled. This is most often seen when a party files with one Provider, loses, then files with another Provider.
An example is the recent MothersMilk.com case (although both the first and second attempt were filed at National Arbitration Forum). The panelist’s decision in the case doesn’t indicate any previous filing and what may be different in the second filing. But it’s a prime example of why a firm might want to file a case a second time — the complainant lost the first case but won the second. The second case was heard by an arbitrator known for favoring complainants.
