The John Berryhill UDRP University

Domain attorney John Berryhill thinks strategically.  When a completely frivolous, seven-sentence complaint was filed on Frank Schilling’s digilove.com domain, Berryhill saw an opportunity.  He used his response to provide a lesson to the panelists on the negative consequences of unilaterally making changes to the  UDRP.

Berryhill wanted to enroll one particular student – Andrew Christie.  Christie is notorious for his attempts to rewrite the UDRP.  He has ordered the transfer of domains that were registered well before the Complainant had any trademark rights – in other words, in circumstances where it was impossible that the domain was registered in bad faith.

The UDRP requires that three conditions be met before a panel can order the transfer of a domain name away from the domain registrant.  One of those conditions is that the domain owner must be found to have registered AND used the domain in bad faith to target the trademark holder that brought the complaint.  But Christie differs from nearly all of his fellow panelists in reading the UDRP to say that it doesn’t require that the domain be registered in bad faith as a condition for transfer, but rather that bad faith registration is simply one of many possible indications of bad faith.  Under Christie’s interpretation of the UDRP, a domain owner can register a domain name before the Complainant company even existed and then later lose the domain based on how the domain was used.

Christie would usually be the last panelist that an attorney representing a domain owner would select as his or her choice for a three-member panel.  Christie has issued many decisions to transfer domains away from domain owners in circumstances that strike me as being clearly cases where there was no evidence at all of bad faith.

Christie awarded the domain parvi.org domain to the City of Paris despite acknowledging that the domain was likely registered in good faith and despite uncontested evidence that the domain had been legitimately used to distribute custom software.  Christie also attempted to transfer the 7s.com domain but was overruled by the other panelists on the three member panel.  Andrew Allemann of DNW.com awarded Christie a 2009 Domain Dunce Award for Christie’s habit of citing his own decisions as if they were independent support for his radical reinterpretation of the UDRP.

Berryhill pulled no punches in saying what he thought of Christie – and in particular Christie’s knowledge of Latin – in a comment on Allemann’s blog post-

So, on top of being a liar, Mr. Christie is also illiterate.

Yet fast forward three and a half years later, and Berryhill is picking Christie to be his #1 preferred panelist to decide the fate of a domain name owned by his most important client, Frank Schilling’s Name Administration.  A negative decision would brand NameAdministration as a repeat cybersquatter and could open up its portfolio of hundreds of thousands of domains to an onslaught of similar complaints.

Has Berryhill gone crazy?  No, Berryhill is crazy smart.

Berryhill wants Christie to face the consequences of his meddling with the UDRP.  Like the sorcerer’s apprentice, Christie is meddling with powerful forces and risks bringing on a disaster.  Berryhill holds Christie’s attempts to weaken the protections afforded domain owners under the UDRP partially responsible for an upsurge in frivolous complaints .  Many of these complaints are filed by complainants whose trademark rights post-date the registration of the disputed domain by several years.  These complaints should never have been filed, and they place an unreasonable burden on the domain owner as the domain owner is forced to spend time, money and effort responding to these frivolous complaints.  Yet Christie’s willingness to order domain transfers even in cases where it is impossible that the disputed domain was registered in bad faith gives hope to these Complainants and encourages them to take a ticket in the UDRP lottery in the hopes of winning a domain that they aren’t legally entitled to.

So Berryhill is enrolling Christie in his class on the UDRP by picking him to hear these “utter piece of crap” cases.  It is not often that one can force a panelist to face the consequences of his misguided reasoning, and Berryhill is taking full advantage of the opportunity.

As Christie read Berryhill’s response, he would have come across the following footnote, written especially for him:

 A complete database of all RDNH findings under the UDRP has been assembled at RDNH.com. The listings are sortable by date, and the Panel is invited to verify this temporal trend, owing in part to a free-for-all atmosphere engendered by relatively recent, and minority held, “re-interpretation” of the UDRP by wellintended, capable and thoughtful panelists, whose carefully-crafted limitations of such re-interpretations are so much pearls before swine in the hands of UDRP complainants who have apparently gotten the idea that longstanding senior registration and bona fide use of a domain name is no bar to a cursorily-stated junior claim.  By opening the door a crack to certain “edge cases” these panelists have inadvertently opened a floodgate of meritless claims such as this one.

In language that is much more diplomatic than Berryhill’s comment above, Berryhill is making the point that trying to find clever ways around the clear wording of the UDRP can lead to frivolous complaints.  It’s a good lesson.  Perhaps Christie is learning it, as he, along with the other two panelists, determined that the digilove.com complaint was an abuse of the UDRP and made a finding of Reverse Domain Name Hijacking.  It remains to be seen whether Christie will stop his one-man crusade to weaken the protections given to domain owners under the UDRP.