A recent UDRP case, Merck KGaA v. Paul Rostkowski, WIPO Case No. D2007-0482 involved a re-filed complaint involving the domain name . The Panel held, inter alia, that the Complaint “is ineligible for consideration” under the UDRP.
the fatal difficulty for the Complainant here is that the Respondent’s conduct is, in substance, the same as the conduct on which the previous complaint was based. Nothing has happened in the meantime except that time has passed.
In the first case, the Respondent made the typical cybersquatter lie “I’m planning a good-faith use, just wait and see.”
The Respondent had submitted that the disputed domain name “was under consideration to be used as a repository of consumer input, both good and bad, regarding consumer experiences with the US product Vioxx, a Merck & Co. brand currently under fire”.
Then, a year later, it is still a domain parking page. Go figure!
On one level, the Panelist’s reasoning in 2007-0482 seems logical — nothing has changed between complaint 1 and complaint 2. Therefore, there are no different circumstances. Accordingly, the re-filed complaint has no basis other than the exact same bases articulated in the initial complaint.
[T]he fatal difficulty for the Complainant here is that the Respondent’s conduct is, in substance, the same as the conduct on which the previous complaint was based. Nothing has happened in the meantime except that time has passed.
Under many fact patterns, the passage of time alone is not something that should be sufficient for a re-filing. Nevertheless, shouldn’t the passage of time be sufficient under these facts? The Respondent said, more than a year prior, that it was planning to launch a site, that the Panel was gullible enough to believe the domain “was under consideration to be used as a repository of consumer input, both good and bad, regarding consumer experiences with the US product Vioxx, a Merck & Co. brand currently under fire” and then nothing happened?
Now if the Respondent’s statement were even arguably true, I’d agree. And, I prefer that Panelists give Free Speech the benefit of doubt. So, I don’t take too much issue with the finding in the initial case (2005-1017) – even though it doesn’t take Solomon to tell that the Respondent was lying through his teeth.
However, one of the grounds for considering a re-file is the offering of perjured evidence being offered to the Panel. So, given that the domain was registered in 2005, and two years later, the domain is nothing more than one of the countless pay-per-click advertising pages, how did the Panelist not consider the Respondent’s prior claim to be anything less than perjury?
To be fair, the Panel did recognize that sometimes the passage of time can be “changed circumstances.”
“There may well be cases in which the passage of time might be found materially to alter the factual situation as presented to the previous panel so as to bring the Refiled Complaint within the narrow confines justifying its consideration.”
However, he offers no reasoning as to why the time in this case was not enough, and offers no instruction as to at which point a lying squatter will be called to task for his “I’m getting around to launching a bona fide site” perjury. What is it? Two years? Three years? Twenty years? Never?
If this decision becomes the norm, we’ve got a nice blueprint for cybersquatters to use. Simply lie by saying “we’re getting a bona fide site up and running any day now,” and then … do nothing but collect your pay-per-click fees and laugh at the panelists for being gullible (or thank them for being activists).
I can kind of see the panelist’s point, and it isn’t a complete skivvy-stain of an opinion, but this logic seems to create a perfect way to circumvent the UDRP, and seems to suggest that there is no repercussion or down-side to lying about spurious “plans” in a Response.
Lets hope that other panels don’t follow suit.
