According to recently published data, the number of UDRP complaints filed with WIPO and The Forum in 2023 that resulted in a finding of reverse domain name hijacking (RDNH) now account for nearly one in five of denied complaints. This means that 20% of all denied complaints are resulting in a finding that the complaint was filed in bad faith, potentially in an attempt to harass a legitimate domain name owner.
But what is behind this increase and what should we learn from this?
Andrew Allemann of Domain Name Wire, reckons it is at least partly due to the increased education of Panellists of the cost of frivolous complaints to legitimate domain name owners, and this is a fair point, but I think it is more than this. At the WIPO Advanced Workshop on Domain Name Complaints in November, I spoke to a number of Panellists who all made the point that Complainants and their representatives should keep in mind that the system was designed to specifically target cybersquatting, and if the case you are considering does not fit this, serious consideration should be given as to whether filing a complaint is appropriate. The UDRP system may not be the correct forum and it should be remembered that the criteria to meet in a complaint are not the same as in trade mark law, and each part must be met to be successful. The important points are to make sure that in a complaint you are honest, support the case with evidence and stick to the facts.
Some parties bring complaints strategically to apply pressure on legitimate registrants to transfer domains, on the basis that UDRP proceedings are cost effective and RDNH decisions are rare and have little consequence. However, Panellists are becoming less tolerant of this strategy and Complainants need to know that there are consequences of having RDNH findings against them - the ruling goes on the public record and may cause reputational damage, it may make Panellists more sceptical in future complaints, and in some countries action through the courts can be taken, such as in the US under the Anti-Cybersquatting Consumer Protection Act, where US-based domain name owners can sue for damages up to $100,000 in RDNH cases. For some ccTLDs, there are already other direct consequences of RDNH findings, such as damages awards (like for .ca) and restrictions on bringing complaints (like for .uk).
Ultimately, this emphasises the point that Complainants should ensure that their legal representatives have a thorough understanding of the UDRP system and advise you appropriately as to whether bringing a complaint is a suitable option. A “let's try it and see what happens” approach may not be the right one if the UDRP criteria are not met!