Does a UDRP complainant have to withdraw a case? — What duty

Did this panelist let the Complainant off the hook?

GDPR and the near-universal implementation of Whois privacy have changed the process of filing UDRP cases.

Ahead of GDPR, a complainant either knew the identity of the domain registrant or knew the public Whois information was bogus ahead of filing.

Now, with privacy the default for most registrations, complainants often don’t know who they’re filing a case against until following they file it.

The current process requires the complaint to be filed, then the registrar relays the registrant’s info through the UDRP provider, at which point the complainant amends its complaint.

Sometimes, that means merely changing the name of the respondent.

Othertimes, that means rethinking the case in its entirety.

For example, in a recent dispute. (pdf), Dawsongroup Limited in the United Kingdom filed a claim against DawsonGroup.com.

It then found out the domain was registered to someone with the surname Dawson.

On that information alone, the case became perilous. Not entirely lost, but on thin ice.

Then the domain owner responded, explaining that they had purchased the domain following registering the trading name “The Dawson Group” in Washington, D.C. They had operated a business using the name.

The thin ice was completely cracked at this point. The case was a loser.

So, what responsibility did Dawsongroup Limited have to withdraw the case? Ought to it have withdrawn when it found out the domain registrant’s name? Ought to it have requested to withdraw it when it received the response, even if it’s possible the registrant would have objected?

I bring this up since panelist Warwick Rothnie decided against finding reverse domain name hijacking. His rationale was:

In the present case, the Panel does not make a finding of reverse domain name hijacking. First, the Respondent’s identity was protected by a privacy service. Secondly, the disputed domain name has not resolved to a website and there does not appear to have been other means for the Complainant to ascertain the Respondent or the nature of the Respondent’s business. In that connection, the Panel notes that the Letter of Protest apparently filed by the Respondent with the United States Patent and Trademark Office in connection with the Complainant’s trademark application appears to have identified a number of conflicts between the Complainant’s application and prior registered trademarks – trademarks which were not registered to the Respondent.

The first reason makes no sense. If this were a significant factor in not finding RDNH, then no cases would be RDNH these days, since nearly all domains are behind privacy. True, the Complainant didn’t know who the registrant was when it filed the case. But it knew when it filed its amended case.

The second point has some merit, at least as to the point in time it filed its initial case. That stated, a quick look at the Wayback Machine would have shown the Complainant that this domain was used by the registrant. Ought to the Complainant have pushed on with its case?

As to the third item (the Letter of Protest), the decision doesn’t explain it further.

I’ve previously taken issue with some of Rothnie’s previous decisions not to find RDNH.

At a minimum, I think the Complainant ought to have attempted to withdraw its case following all of the information came to light.