WIPO rewrites UDRP yet again

Ignores wording altogether in reg-vardy.com case

WIPO has done it again! In the case of Reg-vardy.com - set up by unhappy customer Dave Wilkinson to register his annoyance at car dealer Reg Vardy - the domain name arbitrator has decided to ignore the wording of the uniform dispute resolution policy to find in the company's favour. And even draws attention to the fact in its judgement.

In fulfilling the three points needed to hand over a domain, sole judge Clive Duncan Thorne, found that Mr Wilkinson had registered the domain in bad faith. The clause used was that "the respondent registered the disputed domain primarily for the purpose of disrupting the business on the complainant".

However, it is not until the end of the judgement that Mr Thorne mentions the clause makes it explicitly clear it can only be used when the registrant is a competitor to the complainant. Mr Wilkinson is not, and as such the clause cannot be invoked.

So what is Mr Thorne's justification for ignoring the very wording of the dispute policy? The complainant, he accepts, is not a competitor. "Nevertheless, in all the circumstances the Panel finds that the Respondent's registration of the domain names is primarily for the purpose of disrupting the Complainant's business with the objective of causing harm and nuisance to the Complainant. In the Panel's view this constitutes bad faith."

It is irrelevant whether you agree or disagree with whether Mr Wilkinson has a right to the domain, the UDRP was formulated as a set of rules. To ignore them at will is clearly an abuse.

The WIPO decision - not on its Web site yet but available here - reads like a list of its abuses with regard to the UDRP policy.

The judge, Mr Thorne, continues the disturbing habit of littering what is supposed to be an objective and formal judgement with biased and emotive language. Incredibly, the judge reviews the argument that sparked Mr Wilkinson's decision to register the reg-vardy domain almost exclusively from the side of the company.

The most important aspects of the dispute relate to whether Mr Wilkinson had a van he bought from Reg Vardy repossessed and whether Reg Vardy offered to pay the £3,000 Mr Wilkinson claimed he had spent on rebuilding his premises. Reg Vardy's claims are given extensive coverage, whereas Mr Wilkinson's abject denials on both points are limited to one sentence ("this was apparently not accepted by the Respondent").

Worse than this though, the judge then says the court should be unconcerned with any details of the dispute. Which it should - this, after all, is a question over whether Mr Wilkinson has a right to the domain. So why on earth does Clive Thorne feel the need to go into it in such great detail?

Perhaps it is to draw attention away from the UDRP rules used to back up the decision to hand over the domain. In order to hand over a domain, the judge must be satisfied that:

1. The domain is identical or confusingly similar to the complainant's trademark - IT IS
   
2. The respondent has no rights or legitimate interest in the domain
   
3. The respondent registered and is using the domain in bad faith

The first part is proved. The third part, we have explained above, was justified by ignoring the UDRP's explicit wording. The decision is favour of the second part was also flawed.

Mr Wilkinson, it could be argued, has a perfect right to the domain as he is making critical remarks about a company based on his situation. Any individual is entitled to criticise someone who has wronged them; the libel laws are there to prevent abuse.

Reg Vardy argued that he is offering "no bona fide offering of goods or services" and that he is using the domain simply to divert business away from Reg Vardy itself. The evidence that he is diverting businesses away from Reg Vardy is the fact that the domain is reg-vardy.com.

This circular logic makes a mockery of the whole dispute process. It Mr Wilkinson is using the site to draw attention to faults or problems with the company, then he is serving a useful purpose to prospective customers of Reg Vardy. The argument that since he has a domain similar to a company's name he is therefore diverting business away and therefore has no rights to the domain is a pure indication of how UDRP now serves little useful function.

It's a poor, flawed and sloppy decision. ®

Related Link

WIPO's decision

Related Links

Protest sites galore! Power to the people!
Why ICANN's domain dispute rules are flawed: Part I
Why ICANN's domain dispute rules are flawed: Part II