Won this UDRP but is still unhappy… — John Berryhill

Attorney believes the dispute tarnishes the reputation of his client.

Attorney John Berryhill just helped a client successfully defend a UDRP, and the panelist even found reverse domain name hijacking.

But he’s still upset.

Red Mountain Med Spa, LLC filed the complaint against a man whose last name is Rosenberg. Rosenberg is German for “red mountain”, and the man bought the domain for $10,000 for potential use in his business.

Berryhill was rather testy in his response to the case, as panelist Douglas Isenberg put it:

While many of Respondent’s statements (with respect to all elements of the Policy) are inflammatory (for example, he refers to Complainant’s “allegedly competent attorneys,” declares Complainant’s “pigheaded ignorance” and, in referring to Complainant, states that “persons of such character generally are incapable of feeling shame”) and/or irrelevant (for example, he states “the UDRP is seen by many as a one-way defamation street” and refers to “garbage accusations” Respondent’s counsel has encountered in other cases), Respondent nevertheless raises serious questions regarding Complainant’s allegations and arguments.

It’s the defamation part that irked Berryhill. He has frequently complained that domain owners are unfairly portrayed in UDRP filings, which become public documents that anyone can search.

In this case, he asked the panel to redact the Respondent’s name. He noted that the domain owner is a licensed financial professional in the real estate industry, and anyone searching for his name might encounter the UDRP filing containing false allegations.

Berryhill wrote:

Complainant’s goal here, even if unsuccessful, is to forevermore associate ‘Eli Rosenberg’ and ‘extort’ in internet search engines, to be found by persons considering engaging the Respondent’s financial services.

Isenberg disagreed:

Despite considerable weakness in the Complainant’s case (as discussed below), the Panel sees no evidence of such a goal from Complainant here. Further, Respondent’s name is not so unusual to justify such concerns. Notably, the Panel’s own Google search of the Respondent’s name primarily identifies a number of people who apparently are not Respondent, counting an investigative tech reporter, academics, and an attorney. Accordingly, the Panel sees no reason to redact Respondent’s name from this decision.

In an email to Reglike following the decision was rendered, Berryhill noted that the decision cites the Respondent’s profession. If someone were to search for the Respondent’s name plus his profession, as many people do when checking someone’s background, the decision might appear in the search results.

Berryhill stated this case has permanently damaged the reputation of someone who did nothing wrong.

Well, at least someone who understands UDRP and takes the time to read the dispute will know that the Respondent was not at fault. Isenberg wrote:

Here, as set forth above, Complainant (which is represented by an attorney) has failed to establish the bad faith element of the Policy, many of its notable factual assertions are unsupported by the record and many of the decisions cited by Complainant are clearly inapplicable here. Complainant (via its attorney) knew or ought to have known that it could not succeed in this proceeding, and that a number of its statements were unsupported (and perhaps unsupportable), such as its attempt to equate the RED MOUNTAIN Trademark to trademarks that are distinctive, famous and well-known and that Respondent had actual knowledge of the RED MOUNTAIN Trademark.

Unfortunately, not many people who came across this in search results would understand it.

Snell & Wilmer LLP represented the Complainant.