Comments

• DomainArts (Nat Cohen) 05:10 am 17-May-2013 This UDRP decision was appealed to Federal Court. A settlement favorable to the Respondent was reached. This case turned on a complex set of facts that the UDRP panel was not well suited to understand. The UDRP is intended for "clear cut cases of cybersquatting". This was no such case, yet the Panel did not exercise restraint and issued a decision based on a misunderstanding of the facts. Due to a misconfiguration in Complainant's software, rather than sending data to its own Colombian proteccion.com.co website, Complainant instead sent internal data to Respondent's proteccion.com site. Respondent's parking provider, DomainSponsor, interpreted the data sent by Complainant as search queries entered by visitors to the proteccion.com site, and its automated software highlighted some of the data on the proteccion.com home page as Popular Search Queries. As admitted by the Complainant information on "specific individual accounts" appeared on the proteccion.com site. There is no way that Respondent could have known this information. The only likely explanation for this data appearing on the site is that the data was provided by Complainant itself. Respondent provided log files showing that Complainant was continually accessing the proteccion.com web site and thus was most likely the source of the content it was objecting to. Yet the Panel mistakenly chose to attribute bad faith to the appearance of Complainant's data on the web page of the disputed domain despite the evidence that the appearance of that data was the result of Complainant's own error. The panel admitted that- "The Panel is unable to make a factual determination as to the origin of the words in question, but the bare fact of their presence remains. " As the Panel used the origin of those words as evidence of bad faith, it was of critical importance as to how those words appeared on the landing page. Respondent provided evidence that the words originated with Complainant and that Respondent had no role in the words appearing. Yet the Panel treated the origin of the words as not relevant for its analysis of bad faith. The Panel made multiple errors in reaching this decision. It drew the wrong conclusions from a complicated set of facts that it did not investigate thoroughly and was not well suited to understand. Further, it should have exercised restraint and have recognized that this case was far from being a 'clear cut case of cybersquatting' that the UDRP was intended to handle. Instead the UDRP was not a suitable venue to untangle the complex facts in this matter. The Panel should have either determined that the Complainant did not make out its case, or the Panel should have declined to issue a decision. Finally, the panel interpreted the UDRP incorrectly. No evidence was introduced in this case that the domain was registered in bad faith or even that the Respondent was aware of or targeted Complainant at the time of registration. Instead, Respondent provided evidence that it was pursuing an investment strategy of registering generic Spanish language domains. The panel erred in attributing bad faith to an offer to sell a generic domain registered eight years previously where there was no evidence that the Respondent had targeted the Complainant in its registration. Panelist Nelson Diaz is well known for his controversial decision in the vanity.com case- http://www.thedomains.com/2012/06/20/vanity-com-lost-in-a-udrp-despite-pending-federal-court-case-asking-1m-for-a-domain-is-bad-faith/ Panelist Richard W. Page was found to have issued the most egregious decision in 2009 for ordering the transfer of lomalinda.net and lomalinda.org- http://www.domainnews.com/en/2009-udrp-wall-of-shame.html