From DNW: Acorn.TV lost in horrible decision

AcornMedia wins Acorn.tv in a baffling decision.

First read Andrew’s post at DNW: http://domainnamewire.com/2011/09/13/acorn-tv-lost-in-udrp/.  As Andrew says, it is a head scratcher.

Then read the decision:  http://domains.adrforum.com/domains/decisions/1401194.htm

After reading the facts as summarized by the Romanian Panelist, Beatrice Onica Jarka, I thought there is no way that the domain owner should lose this.  But he did.

My view is that the Domain Owner should win on all three UDRP criteria:

1.  Is Acorn.TV confusingly similar to AcornMedia mark?  No.    If those names are confusingly similar, then NameMedia should sue Name.com, MediaTakeOut.com should sue TakeOut.com, RadicalMedia has the rights to all uses of the word ‘Radical’ and BuddyMedia should go after all ‘Buddy’ domains.

What I love is that AcornMedia has a disclaimer on their own site to protect against people confusing them with other, more famous, users of the name ‘Acorn’:

Note: We are not affiliated with the Association of Community Organizations for Reform Now (ACORN). Acorn is a popular name used by many companies and organizations. We have no affiliation with any other company or organization by the same name.

AcornMedia is admitting on their own site that they don’t have exclusive rights to the term “Acorn” and yet are saying the complete opposite in their complaint.

2.  Domain owner incorporated as Acorn TV, has a checking account in that name, and has a developed site at Acorn.tv.  That is about as clear an example of legitimate use as one could ask for.

3.  Bad faith use.  AcornMedia claims that because they produce video programming that Acorn.TV can’t post video on its site.   Video is a form of communication heavily used on web sites.  It isn’t like AcornMedia is manufacturing computer chips and Acorn.TV is selling computer chips as well.   I hope Random House doesn’t use this argument to claim that I am competing with them if words appear on random.com.

The decision makes a big point out of the claim that Acorn.TV’s sale of Watches competes with AcornMedia’s own sale of specialty watches.  AcornMedia has an online store that currently offers 525 items in a wide variety of categories.  Exactly one of those items is a watch.  This is a bogus argument.

In my view, the domain owner should have prevailed on all three UDRP criteria.  Instead the panelist decided that AcornMedia had proven all three points.

This decision is a good example of how a panelist can concoct whatever tortured reasoning they need to justify their decision, even if it flies in the face of every element of the UDRP criteria.

Unfortunately under the UDRP no domain is safe.  Perhaps selecting a 3-person panel and using one of the lawyers I mention in the last post would have made a difference, but perhaps not.