Gassan.com lost in re-filed UDRP, 11 years after first UDRP

Rematch eleven years later results in loss for domain name owner.

Gassan Diamonds tried to win the Gassan.com domain eleven years ago and failed.  They tried again last month and won against the same registrant.

A UDRP Panel needs to determine that a domain is registered in bad faith to order a transfer.  So how can one panelist in 2000 determine that the domain was registered in good faith, but then in 2011 a different panelist determines that it wasn’t?

In this unusual case, the first panelist based his decision on a lack of evidence that supported either the Respondent or the Complainant.  The Respondent claimed he had registered the domain for a client by the name of Gassan, who had never taken possession of the domain.  Lacking any evidence to the contrary, the panelist in the 2000 UDRP decided to give the Respondent the benefit of the doubt.

Fast forward eleven years, and Respondent has used the gassan.com domain to redirect to competitors of Gassan Diamonds and has tried to sell the domain to Gassan Diamonds.  David H. Bernstein, the panelist in the 2011 UDRP decision, determines that the intervening use demonstrates that Respondent’s intentions were in bad faith when it originally registered the domain, and awards the gassan.com domain to Gassan Diamonds.

One of the most important requirements of the UDRP is that the Complainant needs to show that the domain registrant registered a disputed domain in bad faith in order to prevail.  Bad faith usage isn’t enough.  Otherwise the appearance of one bad link could cause a domain owner to lose a domain that she had registered years ago in good faith.

Some panelists collapse the ‘registered AND used in bad faith’ criteria into simply a ‘used in bad faith’ criterion, eliminating an important protection for domain owners.  Their reasoning is that they can’t know the domain owner’s intentions in registering the domain, they can only deduce those intentions from how the domain was later used.  With this reasoning, making a finding of bad faith use also leads to a finding of REGISTERED in bad faith.

In the Gassan.com case, it seems that this is what Bernstein has done, with the added twist that a prior panel didn’t find that the Respondent had registered the domain in bad faith.  I find it hard to fault Bernstein, however, as the bad faith usage in the subsequent 11 years undermined respondent’s explanation for why he had registered the domain in good faith, and supported the Complainant’s contention that it was a bad faith registration all along.

Do you agree with Bernstein’s decision overturning the previous UDRP victory for the gassan.com domain owner?