When you file a UDRP against an aged, generic domain, your facts and figures better be unbiased.
Unbiased Ltd attempted to get the domain Unbiased.com and failed. For the second time.
Note: ESQwire.com, a premium sponsor of DomainGang, represented the Respondent in this case. This case’s particulars were obtained from public records and is not an advertisement.
The three member panel at the WIPO denied transfer of the domain to the Complainant, stating:
Although the above listed circumstances are non-exhaustive, the Complainant failed to indicate that any of these circumstances or any other circumstances differing from the situation of the case in 2015 are applicable, let alone that the Complainant failed to include in the Complaint that the present Complaint concerns a refiled case. Moreover, the Panel finds that the Complaint in essence is highly similar to the complaintfiled in 2015 and prima facie does not give the impression that any of the circumstances mentioned above would apply.
What happened?
Essentially, the Complainant refiled a UDRP following a previous loss in a 2015 UDRP it filed with the National Arbitration Forum. Despite the Complainant’s claims, the Respondent is the same as before and nothing changed in the facts presented in the previous UDRP.
The Complainant lost this UDRP as well, and one panelist delivered a finding of Reverse Domain Name Hijacking.
The domain transfer was denied.
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Unbiased Ltd trading as Unbiased.co.uk v. Development Manager
Case No. D2021-01131. The Parties
The Complainant is Unbiased Ltd trading as Unbiased.co.uk, United Kingdom, represented by Gill Jennings & Every, United Kingdom.
The Respondent is Development Manager, United States of America (“United States”), represented by ESQwire.com P.C, United States.
2. The Domain Name and Registrar
The disputed domain name <unbiased.com> (the “Domain Name”) is registered with GoDaddy Online Services Cayman Islands Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 14, 2021. On January 14, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 14, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 19, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 12, 2021. The Response was filed with the Center February 12, 2021.
The Center appointed Willem J. H. Leppink, David Stone, and The Hon Neil Brown Q.C. as panelists in this matter on March 9, 2021. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Preliminary question: can this refiled case be accepted?
A. Factual background – refiled Complaint
The Respondent in its Response pointed out, that the Complainant filed a similar complaint against the Respondent in relation to the Domain Name in 2015 at the National Arbitration Forum (FORUM).
On July 23, 2015, a three member panel in that case found that the Complainant failed to establish all three elements of the Policy and denied the complaint, see Unbiased Ltd trading as unbiased.co.uk v. DEVELOPMENT MANAGER, Case No. FA1506001623887.
The current Complaint therefore concerns a newly-filed UDRP case that concerns an identical domain name and identical parties as the parties in the previously decided UDRP case, in which the panel denied the complaint on the merits. Therefore, the current Complaint concerns a refiled case.
B. Case inadmissible?
Before considering the merits of the Complaint, the Panel must first consider whether the Panel should consider the Complaint on its merits given the fact that this is a refiled case.
The Policy, Rules, and Supplemental Rules do not explicitly address whether a prior decision denying transfer of a domain name precludes a complainant from filing a new complaint concerning the same domain name against the same respondent.
However, section 4.18 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) is clear that when refiling a case, a complainant must clearly indicate the grounds it believes would justify acceptance of the refiled complaint. This principle has been confirmed by panels deciding in cases regarding a refiled complaint, see e.g., the decisions Grove Broadcasting Co. Ltd. v. Telesystems Communications Limited, WIPO Case No. D2000-0703 (November 10, 2000), and Creo Products, Inc. v. Website In Development, WIPO Case No. D2000-1490 (January 19, 2001).
Moreover, Panels have accepted refiled complaints only in highly limited circumstances such as:
(i) when the complainant establishes that legally relevant developments have occurred since the original UDRP decision;
(ii) a breach of natural justice or of due process has objectively occurred;
(iii) where serious misconduct in the original case (such as perjured evidence) that influenced the outcome is subsequently identified;
(iv) where new material evidence that was reasonably unavailable to the complainant during the original case is presented; or,
(v) where the case has previously been decided (including termination orders) expressly on a “without prejudice” basis.
Although the above listed circumstances are non-exhaustive, the Complainant failed to indicate that any of these circumstances or any other circumstances differing from the situation of the case in 2015 are applicable, let alone that the Complainant failed to include in the Complaint that the present Complaint concerns a refiled case. Moreover, the Panel finds that the Complaint in essence is highly similar to the complaintfiled in 2015 and prima facie does not give the impression that any of the circumstances mentioned above would apply.
For the reasons explained above the Panel cannot accept the Complaint in this refiled case and will therefore not discuss the merits of this case.
5. Decision
For the foregoing reasons, the Complaint is denied.
Willem J. H. Leppink
Presiding PanelistDavid Stone
PanelistThe Hon Neil Brown Q.C.
Panelist (Concurring)
Date: March 23, 2021Opinion Concurring on Result But Dissenting on Reverse Domain Name Hijacking
This panelist agrees with the result, namely that the Complaint should be dismissed, as the case has already been disposed of in a previous proceeding. The decision in that proceeding may be read at Unbiased Ltd trading as unbiased.co.uk v. Development Manager, FA1506001623887 (NAF Jul. 23, 2015)1 . It will be seen that the previous proceeding was brought in the National Arbitration Forum (now FORUM) and it seems therefore that the Complainant has decided to chance its arm in a new proceeding, this one being brought at WIPO, to see if it obtains a better reception in this venue.
The majority has decided to reject the claim as it is simply the previous claim with nothing new added. This panelist agrees with that decision, although it should not need a citation of the WIPO Overview as authority for rejecting the claim, as it is the practice of most courts and tribunals, as well as common sense, not to entertain repetitive litigation unless the facts have changed or there is some reason why it would be unjust to bar the litigant from bringing the same proceeding again.
However, the Respondent has also asked for a finding of Reverse Domain Name Hijacking ( RDNH) and the majority has not ruled on that issue. This panelist would make that finding and for the following reasons.
A finding of RDNH should not be made lightly, but in the present case it should be made to mark the Panel’s and, one hopes, the domain name community’s disapproval of parties who flout well-established rules of practice and principle with no valid excuse for doing so. There was no ground advanced why the present proceedings should be allowed although it is a refiling. Indeed, the Complainant has made things worse for itself by not even disclosing in the Complaint the fact that there was a previous proceeding which it lost. Presumably this was done in the hope that no-one might notice the prior proceeding, but they did.
The Respondent’s counsel noticed it and rightly wrote to counsel for the Complainant, who claims on its website to have “expertise” in domain name cases, to object to the present proceeding, invite it to show special circumstances or withdraw the complaint and advise it that it was at risk of a finding of RDNH if it did not withdraw. Despite that, the Complainant gave no reasons to justify the refiling and pressed on with the Complaint.
This is therefore the classic case where it can be said that the Complainant must have intended to harass the Respondent and put it to timewasting expense to defend this claim for the second time, as it knew it could not succeed without good cause being shown why the case could be commenced. If ever there were a case showing the wisdom of the Canadian rule that in an appropriate case the panel may award part of a respondent’s costs against an offending complainant, this must be it. But in the absence of power to award costs against a recalcitrant complainant, making a finding of RDNH is the only sanction that can be imposed.
This panelist would therefore make a finding of RDNH.
The Honourable Neil Anthony Brown QC
Panelist (Concurring)
Date: March 23, 20211 This panelist was a member of the panel who decided that proceeding, although unlike the present proceeding it was a decision on the merits of the case.
