Sunday, May 9, 2010

Domainers Indignant Over Comments Made By UDRP Panelist Regarding Domain Name Asking Price

The recently decided UDRP case of Manufacturas Muñoz S.A. Colombia v. Choi Sungyeon has Domainers up in arms...again. Domainer outcry is - once again - over a panelist’s commentary on whether a respondent’s asking price for a subject domain name was excessively above “fair market value.” I recently reported on the start of this potential new trend (here) in the case of American Airlines, Inc. v. MegaWeb.com Inc.  Although the panelist in the case of Manufacturas Muñoz denied transfer of the subject domain name to the complianant, he did make the following statement that has raised concerns in the domainer community:  "While the Panel finds the amount at which Respondent is offering to sell the Disputed Domain Name somewhat suspicious and disconcerting...."

The issues: whether a domain name’s asking price should be considered at all in the determination of bad faith registration and use.  And, if so, to what extent should asking price be weighed in that determination?

Domainers are hard-pressed to see how UDRP panelists are experienced domain name real estate appraisal experts. I doubt UDRP panelists have much experience whatsoever in assessing the value of domain names. And if I’m right, which I suspect I am, panelists will need to become certified experts in domain name valuations should a trend of “asking price” assessment be imminent. I think most – if not all – would agree that an “I know it when I see it” standard is simply not acceptable.

I’m pondering whether a domainer’s asking price has some place in the determination of bad faith registration and use in UDRP proceedings. I’m not advocating that an asking price, alone, could result in a finding of bad faith registration and use. However, I’m pondering whether asking price should play a role in those cases where the evidence strongly suggests bad faith and where evidence of an inflated asking price may be the missing link needed to “tip the scale” in favor of a complainant.

What are your thoughts? 

4 comments:

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  2. My thoughts are that the udrp was never intended to resolve complicated trademark disputes but rather to address straight forward cases of cybersuatting. The federal court system is better equipped to manage the complicated mixture of fact and law required in trademark cases. The notion that price alone is indicative of bad faith on the part of a registrant is presumtuous to say the least and if used as a measurement of malpheasance alone could be disasterous. The notion that there is a place for consideration of price asked should be limited to situations where the preponderence of evidence overwhelmingly suggests bad faith. The consideration then would be within the realm and scope of what I believe was intended under the udrp.

    The fact that the udrp does to a large extent rely upon and refer to previous decisions made under the policy gives adjudicators with a bias toward tm holders an opportunity to shape and mold the policy by way of their decisions. There can be no question that there have been blatently overt attempts to massage the policy and expand its scope and given the reference to jurisprudence this is a dangerous thing. Keep the udrp for blatant cases.

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  3. Anonymous -

    Thanks for your comments. All good ones. And I happen to agree with each of them!

    Roger

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