Cybersquatting is generally defined as registering a domain name that is confusingly similar to a trademark. For example, if someone other than the soft drink maker registered Pepsi.com, that would be cybersquatting.
In a previous post, we explain the Uniform Domain Name Dispute Resolution Policy (UDRP). This is a simple dispute process in which a brand owner can try to recover a domain name that it believes is cybersquatting.
While the process works as planned most of the time, there are also people who seek to take advantage of UDRP. These people or companies will file a baseless case against a domain name in an effort to get a domain they want without paying for it. This is called “reverse domain name hijacking”.
The person who files a UDRP—called the Complainant—has to show three things in order to win:
- Your domain name is confusingly similar to, or matches, their trademark.
- You don’t have legitimate rights or interests in the domain name.
- The domain was registered and used in bad faith.
It’s not enough to prove some of the above; all three have to be met. The Complainant has to make at least a baseline case for all three of these and the domain owner then has a chance to defend herself.
Reverse Domain Name Hijacking
When a company files an egregious cybersquatting case against a domain name, the panel that decides the case can go further than just denying the claim. They can also admonish the Complainant for engaging in “reverse domain name hijacking,” though instead of this colorful language, a panelist might simply say the case was filed in bad faith.
Here are some reasons a panelist might decide that a case is reverse domain name hijacking:
- Complainant knew that the respondent had legitimate rights. A common example is when the company’s name matches the last name of the domain name owner. If the company was aware that the domain owner’s last name was the same as the domain, then it knew she had legitimate interests in the domain name. Another example is if the domain owner has used the domain for many years for a business.
- Complainant left out key information from the complaint. Complainants will sometimes only submit information that helps their case, leaving out critical information. For example, a Complainant might produce part of an email conversation that makes it look like the domain owner tried to sell the domain to it. In reality, the Complainant contacted the domain owner about buying the domain, not the other way around.
- Plan B reverse domain name hijacking. This often goes hand-in-hand with leaving out key information. Plan B refers to when a company tries to buy a domain name. When it can’t negotiation the price it wants, it files a UDRP.
- Complainant should have known it couldn’t win the case. This is somewhat of a catchall, but it’s usually when the Complainant’s trademark rights postdate the domain owner’s registration of the domain. In order to show that a domain was registered in bad faith, a Complainant must show that the domain owner was targeting it. That’s impossible if the company or its mark didn’t exist when the domain was registered.
There’s no monetary penalty for being found to have filed a reverse domain name hijacking case, although domain owners can subsequently sue the Complainant in court to seek an award.
It’s easy as “the little guy” to be bullied by someone who says they have a trademark and that you are cybersquatting. It’s important to understand your rights and to not do or say something that can come back to haunt you.
Some simple advice: if a company claims you are cybersquatting, call an attorney that specializes in domain names and UDRP.
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