Conflicts: What To Do If Your Domain Is Challenged
Disclaimer: I'm not a lawyer, and don't play one on TV either, so this should not be regarded as legal advice. If your challenged domain is essential to your life, career, or business, you should find a good intellectual-properties lawyer to fight for your side in any ICANN proceeding and/or lawsuit. However, if you can't afford a lawyer or your site is a personal or hobby site not worth spending lots of money defending, but you'd still like to put up some sort of fight on principle, the information here might help you stand at least a fair chance of keeping your domain. (Or, you can find a law student to do pro bono work for you... an article indicates the availability of such services.)
Another Disclaimer: I've never actually been a party to a domain dispute, either as the respondent or the challenger, so all of this information is based on my observations, as an outsider, of the disputes that have occurred so far and their resolutions, rather than on personal experience.
What To Do Before Your Domain Is Challenged
Maybe it's too late for this part, if you're reading this page frantically after being on the receiving end of a challenge under ICANN policy claiming that your domain infringes somebody else's rights, or a threat of such a challenge or of a lawsuit. But if you're reading this defensively in anticipation of the possibility of a future challenge, there are some things you can do now to reduce the chance of your being challenged and increase your chance of winning the case if you are.
Use A Registrant Name that's an Actual Existing Entity!
This is the most basic element of the domain registration, but one frequently not heeded. People put all sorts of bogus things in their registration names -- the registrant line that shows at the top of your domain's WHOIS record -- sometimes out of a desire for privacy, sometimes because they registered the domain for a future business venture for which the corporation hasn't been formed yet, sometimes because the domain is being hoarded for future sale and the registrant thinks putting something generic in that line will make it easier to transfer. But you're really supposed to put the name of some legally existing entity there -- either an individual, an organization, or a company. That's who owns the domain, and who will be the respondent if it is challenged. If you fill in something bogus that doesn't really exist, that may make it hard to defend the domain if challenged (a nonexistent entity can't file a response!), and it may also be deemed by the panel to be evidence of bad-faith registration, since it looks like you're trying to be sneaky and avoid challenges.
Unfortunately, some registrars (most notably, the former monopoly Network Solutions) make it a big pain in the butt to change the registrant name once it's established, but other registrars are much easier to deal with; many of them let you change it quickly and easily from a web form interface. That's one thing to consider when choosing a registrar. (There's a down side to this, though... it means that if somebody manages to find or guess your password, they can hijack your domains by changing the contact information themselves. So pick a password that's really private and guard it carefully! There have been plenty of such fraudulent hijackings with Network Solutions, however, so their pain-in-the-butt interface apparently succeeds only in being inconvenient to legitimate users without necessarily stopping abuse.)
Keep Your Contact Addresses Up To Date!
Don't forget to update your postal and e-mail addresses and phone and fax numbers in your domain's record so that they're always current. If they're out of date, you might not receive timely notice of a challenge, and the panel may also regard bounced mail as evidence of bad faith on your part. Outdated addresses can also cause you to fail to receive invoices when your domain is about to expire for nonpayment, and make it more difficult for you to update your domain record when you change providers. There are many reasons why you should make an effort to keep yours up to date. If you're intent on privacy and don't want to give out your home address, get a post office box or maildrop for this purpose. Also, be sure your name and address are somewhere in the record of every domain you own, not just the names and addresses of others such as your hosting provider, Web designer, or technical person; you want to get timely notice of any challenge that gets filed against you, and not have to rely on somebody else forwarding it to you.
If You're Interested In Selling Your Domain, Don't Be Blatant About It!
Although the selling of domain names is not illegal or against ICANN policy, it's looked at with great disfavor by the panelists, especially if the domain appears to have been registered for no other reason than speculation. Putting "This Domain Is For Sale" on the Web page the domain leads to, or even worse, in the WHOIS record of the domain, is a great way to get the panelists prejudiced against you even before they see any other evidence in the case. And since potential challengers know this, it's also a way to invite a challenge from anybody who's got a trademark that resembles your domain name in any way. Some extremely generic words and acronyms have been successfully challenged this way, which the respondent could probably have kept if they'd put almost anything in their Web site other than "This Domain Is For Sale".
So, be more circumspect if you're trying to sell a domain. Don't rub everybody's nose in the fact that it's for sale. If somebody's really interested in the name, they may still approach you about it even if you don't make a big deal of it. But be careful how you respond to such an inquiry; it could be from a trademark owner trying to set you up for a challenge -- asking for lots of money for the domain could be seen as bad faith. It's better to get the purchaser to make an offer instead of quoting a price yourself. And if you're not interested in selling the domain, don't quote an absurdly high price just to get an inquirer to go away; they may use that against you in a challenge. Just say "Sorry, I'm using this domain myself and am not interested in selling it."
If you have a solid, legitimate history of past use of the domain for bona fide purposes that don't infringe on any trademarks, then you're on much more solid ground now even if your original use of the domain no longer applies and you're interested in selling it. In such cases, you can be much more overt in your efforts to make a sale, and still win a challenge if one arises. Be sure to keep evidence of your past bona fide use, such as screen shots of your former Web site, copies of e-mail and paper correspondence regarding the site, catalogs, brochures, ads, and business cards using the domain in Web or e-mail addresses, etc. You may need it for a challenge response.
Actually Use The Domain!
The panelists don't like domain hoarding, speculating, or registering heaps of domains to try to draw more traffic into some sucky pseudo-portal that pops up tons of ad windows at you, many of them pornographic. Neither do I, for that matter. On the other hand, the panelists don't seem to mind big corporations registering heaps of domains to "protect their trademark", including domains in inappropriate TLDs (like ".org" if you're a commercial company), while I don't like that practice either. See my notes on domain structure; we'd all be much better off if everybody stuck to registering only the domains they actually needed to give their sites meaningful addresses -- no more than one domain per site, and sometimes fewer, since often a subdomain of an existing domain will do fine. But at any rate, with the panelist bias as it is, unless you're a big corporation they'll likely hold it against you if you don't actually use the domains you register, for coherent purposes that relate to their names. If your domains have no Web site at all on them, or just a generic "Under Construction" page, or if you have a bunch of widely different domain names that all forward to one Web site that has little or nothing to do with the apparent subject matter of the domains, then you'll be regarded as a speculator, hoarder, or con-artist, and assumed to be holding the domains either for sale or to draw traffic from consumers intending to go somewhere else. This won't be good for your case.
The obvious solution is for you to do something with the domain -- something distinct with each one, which relates in a clear way to the subject matter of its name. It doesn't have to be something big and fancy -- a modest personal or hobby site will do -- but it should show true interest on your part in its subject matter. If you just throw up some contrived thing very quickly when challenged, that won't be taken seriously -- for instance, way back in the ancient days of domain disputes, the owner of panavision.com tried to repel a lawsuit by putting up a picture of the town of Pana, Illinois -- a "Pana vision," get it? That was too contrived; there's no reasonable purpose to a site that consists only of such a picture under a name that's more commonly associated with another company. If it had been a thorough city guide to Pana, it would have been more credible, though the name might still strike the judge as unlikely.
But if there is a reasonable, non-infringing use to the name, use it. Put up a site about it, and put enough work into it so it doesn't seem contrived. For instance, if the domain name is the name of a celebrity, create a fan site about him/her, with information such as their biography, discography, links to other fan sites about that celebrity, etc. (But be careful about using things like images, sounds, and logos which may be copyrighted or trademarked; that might be viewed as "bad faith" if the celebrity is of the litigious sort.) Genuine fan sites have stood a much better chance of keeping their domains than celebrity-name domains that were merely hoarded, or which pointed to generic commercial sites trying to draw celebrity fans but offering little of specific interest regarding that celebrity. If you own domains containing the names of dozens or hundreds of different celebrities, that weakens your case considerably, as you can't credibly be believed to be a big fan of all of them.
I suggest, if you're starting a true noncommercial fan site, that you use a .org address instead of .com -- .com stands for "commercial", so it looks silly to use a defense of noncommerciality against a challenge of such a domain. On occasion, the panelists actually seem to have a clue about the structure of TLDs, and will give more consideration to noncommercial users of .org domains against commercial challengers. Anyway, if you understand what the top level domains really mean, it will be hard for you to argue with a straight face that your site is noncommercial (if you're using that as your defense) if its address ends in .com! (.info works well for fan sites, too; it doesn't imply either commerciality or noncommerciality.)
(The truly nice celebrities don't threaten to sue the webmasters of fan sites about them... they're flattered that they've attracted such interest, and appreciative of the support they get from such sites. I operate a couple of celebrity fan sites myself -- tiffany.org and tatiana.info -- and have always had nothing but friendly relations with the celebrities involved and their management. However, even a nice celebrity might be inclined to challenge a site using their name for blatant commercial exploitation rather than sincere fan appreciation. Lady Gaga did, however, challenge what appears to be a legitimate fan site, but the fan won the case.)
Actually, "using" a domain doesn't necessarily require a Web site. Domain names have existed since the mid 1980s, while the Web wasn't even invented until the early 1990s. There are other uses for domains, including e-mail addresses as well as hostnames for network infrastructure and for use in protocols from FTP to IRC. But don't count on the mostly non-technical panelists understanding this. While there have been some cases where people have kept domains that they were using for non-Web purposes despite a challenge, you probably have an easier job convincing a panelist you're using the domain if you have a Web site on it, not to mention that others are less likely to challenge you in the first place if there's a site there that's obviously being actively maintained. But if you do wish to use your domain only for non-Web purposes, be sure to build up some documentation of this use, like paper documents on which you give out an e-mail address containing the domain name, dated so that it shows usage predating the dispute.
If The Site is Noncommercial, Avoid Anything that Blatantly Looks Like An Ad
This part applies when your site is a personal, hobby, or fan site that you're doing for love rather than for money, not to one that's explicitly a business. Noncommercial fair use is one of the ways under the dispute policy that you can establish legitimacy to your own use of the domain. However, some panelists go way out of their way to find commercial contamination of such sites and use this to deny the protection of this clause. They've sometimes cited such things as LinkExchange banners and ads inserted by free hosting providers as indications that a site is really commercial. So if you can, try to avoid putting anything that looks like an ad (even if you don't get paid for it) on the front page of your site.
Parlez vous? ¿Habla usted?
One of the ICANN rules provides that the dispute resolution proceedings will take place in the language of the domain's registration agreement, unless otherwise agreed by both parties to the case. There are now accredited registrars in a number of different countries, with a number of different languages used for their registration agreements. It would be a good idea for you to use a registrar whose language is one you're fluent in, or else you might find yourself having to defend yourself against a challenge in a language you don't understand. On the other hand, if you're one of the fortunate people who is fluent in several languages, you might want to pick a registrar that uses a language that you know, but that you judge to be the least likely to be the native language of anyone likely to try to challenge your domain; that may put the potential challenger at a disadvantage. But you probably shouldn't do that unless you have some legitimate connection to the country where the registrar is located; if it looks too obvious that you're contriving to get the proceedings into an obscure language to disadvantage the challenger, this might be used against you in the proceedings as a sign of bad faith.
What To Do When Your Domain Is Challenged
OK... despite all the efforts above (or because you failed to do the things above), you get hit with a challenge to one or more of your domains via the ICANN challenge procedure. So what do you do now? Don't panic. Though the process has a definite bias toward trademark owners, you can still bring the odds a little more in your favor, mostly by not making the mistakes that many respondents do.
File A Response On Time!
They don't call you a "respondent" for nothing. You're supposed to respond! If you get a challenge, you'll be given some information on the expected format of your response (it varies somewhat between the several different arbitration providers), and the deadline to get it in. Be sure you submit a response in time. Do it a day early if possible to make sure it makes it -- some of the panelists are really nitpicky. I've seen one case where a response was rejected because it was a half hour or so late in the time zone where the arbitration headquarters was located (even though it was a few hours earlier in the respondent's location). Other panelists have been more liberal, sometimes accepting responses days or weeks late, but don't count on that; get it in on time.
If you don't respond, your case will be considered a "respondent default," and while this doesn't automatically cause a ruling in the complainant's favor, it is almost certain to go that way, because the panel is then supposed to take the complainant's assertions as undisputed fact. Only if the complainant really screws up and fails even to assert facts that prove their case if not refuted, will they lose. Some complainants actually have been that stupid; there was one who actually stated something like "We don't think [respondent] registered that domain in bad faith, but we still have more rights to it than he does." Since one of the things a complainant is required under the policy to prove is that the domain was registered in bad faith, this guaranteed a loss despite the failure of this respondent to make any response. But most complainants won't be that stupid, so be sure to file your response! (Fortunately for the respondent in the above-cited case where a half-hour-late response was disallowed, the panel decided that the complaint failed to make its case well enough, so the respondent won anyway.)
Consider Requesting a 3-Member Panel
The respondent has the option of requesting a 3-member panel instead of the more common single-member panel. Actually, the complainant also has this option, but they seldom exercise it because single-member panels are more likely to rule in the complainant's favor. This is because in a three-member panel the respondent can choose one of the members from the list of approved panelists, and there are some more pro-respondent panelists there. Read over the cases and find the authors of particularly clueful decisions that recognized such things as fair use, alternate meanings of generic terms, and the reasonable coexistence of different sorts of users in different top-level domains. Pick one of these as "your" panelist. This will put the odds more in your favor by removing the possibility of the case being put in the hands of a pro-trademark-interests rubber-stamper. Your side will get a fair hearing, with the randomly-chosen third panelist being the crucial swing vote. Even if you lose, you might at least get a minority opinion in your favor that could be helpful in pursuing the case later in court.
Requesting a three-member panel does, however, cost you something; you have to pay an extra thousand bucks or so. Letting the case be decided by the default single panelist doesn't cost the respondent anything. So you have to really regard the case as important to you to be worth this expense.
If the facts are against you, argue the law...
If you're one of those slimy, bottom-feeder cybersquatters that the panelists' mothers warned them about, you might still escape on a technicality if you argue the fine points of the domain dispute policy. Read the cases and find any arguments that actually worked which apply to you. Actually, the policy, interpreted strictly and literally, requires a heavy burden of proof on the complainant; they must show you have absolutely no rights to the name yourself, and that it was both registered and used in bad faith. So if you haven't actually gotten around to using the domain, argue that if you haven't used it, you can't possibly have used it in bad faith (even if your planned use probably would be considered bad faith, once it happens). Most panelists reject this argument, but there are a few strict constructionists who accept them... probably the same people who refuse a response if it's an hour late.
...if the law is against you, argue the facts...
On the other hand, if what you did is possibly, technically, an infringement of somebody's name rights, but wasn't done for the purpose of commercial exploitation (e.g., a fan site using a celebrity's name), make a point of the sincere, noncommercial intent. Maybe you'll get a bleeding-heart panelist who cares about this sort of thing. This part is where it'll help if you followed my advice above and avoided anything that looks like an ad in your site, as this will likely be used against you. If you do have some sort of advertising or affiliate links where you can possibly get a commission if people use them, but they're not "in your face" when a user enters the site, certainly don't call the panelist's attention to them.
...but what if the law and the facts are against you?
Then you'll probably lose, and probably deserve to. You should still file a response anyway; it doesn't cost anything if you do it yourself instead of getting a lawyer, and it at least compels the other side to prove their case, and the panel to weigh the evidence on both sides, instead of just rubberstamping the complaint. One of my hobbies lately is reading the domain dispute decisions looking for interesting arguments and resolutions, and I find it very boring that a large number of the respondents failed even to present a defense. I don't like cybersquatters and domain speculators very much, but I have more respect for them if they actually put up a fight for their side of their disputes, instead of just scurrying away like cockroaches when the light is turned on.
Don't Assume The Panelist Will Know Any Relevant Fact
Always point every relevant fact out specifically, and document it if possible. Panelists come from many different countries and cultures, and are not all native speakers of English. If you're basing your defense on the fact that the domain name in question is a common, generic word or phrase in English, or another language, don't assume the panelist will know that just because you think "everyone knows that". Explain in plain English (or whatever other language the proceedings are conducted in) what the word or phrase means, and include citations such as a dictionary entry. Also include a brief explanation of why you chose the name and how it relates to the subject matter of your (current or planned) use of the domain name. If the usage in question is slang, a colloquialism, a regionalism, or confined to a particular profession or subculture, you'll need to be particularly good at explaining its meaningfulness in that context to a panelist who may have no familiarity at all with it. You may need to include copies of articles from newspapers, magazines, or technical journals that use the word or phrase generically.
Some examples of panelists who didn't have a clue when one wasn't handed them are the panelist in the tonsil.com case who didn't seem to know that "tonsil" was a common English word, and the panelist in the bodacious-tatas.com case who didn't seem to be aware that "tatas" is, in some subcultures, a slang for "breasts".
If you're a potential complainant, planning on challenging somebody else for infringing your trademark rights with a domain name, this section really applies to you too; you shouldn't assume that your name or your products are so famous that the panelist will have heard of them and will take your side accordingly. Maybe if you're Coca-Cola, that will be true, but for just about any other trademark, no matter how famous it may be in your own country, and even in many other countries around the world, it might not be famous in the country where the panelist lives. So be sure to provide documentation of the trademark's fame, such as ads and articles mentioning it, in addition to any legal documents such as trademark certificates. The ICANN cases so far include some filed by companies in Canada, France, Australia, and elsewhere that seemed convinced that they had major, world-famous trademarks that should be enforceable even against an American domain name owner; but I'm American, and I'd never even heard of them myself.
Sorry, I don't hablo that...
As mentioned earlier, proceedings are supposed to be conducted in the language of the registration agreement unless agreed by the participants. Assuming you used a registrar whose agreement is in a language you understand, if you receive a challenge that's in a language you don't understand, you should respond to the challenger and the resolution provider handling the case by reminding them of the language rules and requesting that the challenge be re-filed in the language of the registration agreement. That's better for you than having to try to find a translator, and might also put the challenger at a disadvantage if they need to find a translator to comply with this requirement. In fact, if you want to make it hard on your challenger, you may wish to invoke this rule even if you do understand the language the challenge was filed in, if it's a different one from that of the agreement. (But don't be too blatant or obnoxious about this, or that may be used against you as evidence of bad faith!)
Consider Requesting Judgment of 'Reverse Domain Hijacking'
One provision of the policy allows the panel to rule that the case is one of "reverse domain hijacking". There really isn't that much point to this, as the panel has no power to impose any sort of damages or sanctions in such cases, but it is a moral victory for the respondent, as it indicates that the panel regards the case as having been brought in an entirely frivolous and harrassing manner and having an obvious lack of merit. Such a judgment could have later precedent value for other disputes involving the same parties. Certainly, if the person or company that is challenging one of your domains has previously been judged to be "reverse domain hijacking" in a different case, you should cite this in your response, which is likely to make the panel less sympathetic to the complainant. But at any rate, it doesn't hurt to include in your response a request for such a judgment if you feel the case warrants it. However, be aware that this is very unlikely to be granted; the panelists tend to be of a "trademark-owner mindset" and believe that vigorous defense of intellectual properties is necessary, even to the point of overzealousness -- if a few innocent people get trampled in the process, that's the price we pay for the protection of intellectual properties. So even when a complainant's case involves such an over-stretching of any reasonable concept of trademark rights that the panel, despite its pro-trademark bias, must reject it and allow the respondent to prevail, they're still unlikely to rule it as a "hijacking" case.
There have, nevertheless, been a few such rulings. The case has to be very thoroughly absurd for the panelists to rule that way; perhaps if your domain name is a common generic English word, you're using it actively in its generic meaning, you have been doing so for many years and in fact began this use before the challenging party even existed, and the challenger doesn't even own a valid trademark to the word (they applied for one but it was turned down by the trademark office as too generic), then maybe you'll get one of those rare "Reverse Domain Hijacking" rulings. Otherwise, you probably won't. And given some of the particularly far-out ICANN rulings, there might even be some panelists who would not only fail to find reverse hijacking in such a case as this, they might even order the domain transferred to the complainant!
There is, however, at least one case where reverse domain-name hijacking was found despite the respondent having defaulted by failing to respond to the complaint at all: the downunder.travel case of 2006, the first UDRP case under the .travel domain. That's a freak occurrence, though; most panelists don't even consider a decision in favor of it being reverse domain-name hijacking unless the respondent actually asks for it.
You still might lose, anyway...
As sometimes alluded to above, a lot depends on the luck of what panelist you get. Some of them are very reasonable and try to do a fair job of interpreting the policy in an evenhanded way. Others are anal-retentive about the exact wording of the policy (e.g., if the deadline requires a reply by midnight, they'll reject it if it comes in at 12:01), which might work for or against you depending on the facts of the case. But still others have such a solid pro-trademark mindset that they'll nearly always rule in favor of the complainant, no matter how bad their case is or how good yours is. If that happens, unless you've got the big bucks to go to court about it, you're screwed. Or, on the other hand, if you win the ICANN case, you could still be screwed if the losing complainant decides to take you to court, as has happened in a few cases. That's why you probably do need a lawyer if the domain is of vital importance to you.
Don't rant like a lunatic!
Whether you think the facts, the law, or both are on your side or against it, and whether you think the panels are fair or biased, be calm and reasonable in your response. Don't be like the lady in the Internic domains case, who was challenged for registering various domains containing the name "InterNic" (which was formerly used as the name of the domain registration system when it was awarded as a government monopoly to Network Solutions). The U.S. Department of Commerce owns trademark rights to this name (which they even asserted against Network Solutions themselves once they were no longer a monopoly but persisted in pointing the internic.net address at their site; it now goes to a site listing all the accredited registrars). When they went after this lady, rather than make a reasonable response, she launched into a long series of e-mail tirades, as documented in the decision linked to above. She blasted ICANN and the U.S. government for "screwing" her out of her domains, said that she was being persecuted because she's a Hispanic woman, claimed to have Jesse Jackson and the New York Times interested in helping her make a big stink about it, claimed that a decision against her would create an international incident between the U.S. and China (because she had apparently involved somebody in China in her business scheme involving the domains), and also demanded that WIPO remove all reference to her case from their website (where they list all pending and completed domain challenge cases and their decisions when complete) because the mere mention was defamatory and damaging to her business. She came off like a raving lunatic. Her demand that her case be removed from the Web site was particularly ridiculous; the openness of the cases and their decisions is one of the good things about the ICANN dispute resolution system. I'd rather the cases be aired out in the open than be decided secretly where nobody else can learn from them. The panelists apparently agree with that, as they have always rejected demands that decisions be kept private -- a panel even turned down a request by Her Majesty the Queen (in the newzealand.biz decision) in this regard, despite the respondent in the case agreeing to this request.
Anyway, perhaps you think your case is a lost cause and so you just want to use the response as an opportunity to vent, but try to resist the impulse. I like a good rant myself, but a formal response calls for a more detached style. If you're incapable of getting sufficiently unemotional to do it yourself, maybe you should get a lawyer. If you act too much like you're "living la vida loca," that will prejudice the panelists against you -- maybe you think the current case is lost already, anyway, but you might be involved in other, more winnable, cases in the future, but any past rants of yours will be in the public record and can be used against you. Maybe you think the ICANN panelists are Satan incarnate, but they certainly don't agree with this opinion, so saying this won't endear yourself to them. Actually, most of them are trying their best to be fair-minded, though sometimes within the blinders of a mindset that's highly prejudiced toward the intellectual property community. A well-reasoned defense will have more possibility of successfully challenging this mindset than a wild rant.
Some more "Don't"s...
Don't say "I've got a perfectly legitimate business plan for this domain, but I ain't gonna let you see it... nyahh nyahh nyahh!!!" Actually, this is rarely stated by respondents in quite as childish a way... usually it's more like "My business plan is confidential, so I will not disclose it here." Still, the panelists will almost always interpret this as "I don't have any semblance of a legitimate business plan for this domain, but I'm pretending I do in order to try to beat the cybersquatting rap." So don't try this approach, even if it's true... it will only be used as evidence of bad faith against you. Yes, I know that under the policy the complainant is supposed to have to prove bad faith rather than the respondent having to prove its absence, and that your personal and financial privacy rights mean that you shouldn't have to disclose all your business plans any time some joker files a challenge against you, but the way the process is stacked in favor of complainants, you're really going to have to show some evidence on your side of legitimate plans for the domain, instead of just relying on the "It's none of your damn business" defense. If you really have a confidential business plan, that's one of the cases where you probably need to hire a lawyer instead of doing your own defense; a lawyer will know all the right legal mumbo-jumbo to use to convince a panelist you have a genuine business plan without making its details part of the public record.
Don't annoy the panel and the abritration provider with voluminous and frequent filings raising every picayune technicality possible. Or, at least, don't do this if you have any semblance of a case on the actual merits of your position -- anybody resorting to scattershot lists of mostly-irrelevant legalistic points will mostly succeed in impressing the panel with the likely absence of a true case. (This is the sort of error likely to be committed by respondents with a bad lawyer representing them; nonlawyers wouldn't even know the technicalities to bring up, while good lawyers would know which things are relevant and effective.) Panelists don't want to spend a lot of time on their cases, so they would like complainants and respondents to get right to the point instead of wasting their time on trivialities. So, if you think that somewhere in the course of getting the case started, somebody messed up somewhere and didn't notify all the right people at all the right times in all the right manners, or use all the right verbiage everywhere, but this had no real effect on your ability to put up a defense on schedule, don't make a Federal case of it. You might mention such irregularities briefly in your response, but don't treat them as signs of an evil conspiracy against you, or demand that the case be dropped immediately because of them. On the other hand, if an error or omission by the complainant, panel, or arbitration provider actually did interfere with your ability to defend yourself, such as if you failed to even find out about the case against you until the response deadline was past, then you certainly should raise the point vigorously in that case. Just use sense and discretion.
A good case study of a respondent who did both of the things noted above is in the wwwabb.com case; this is a case of "typosquatting" on what is probably a rather weak trademark, so a respondent might have been able to prevail with a semblance of a decent case, as another respondent did against the same complainant in the abb.biz case. In fact, the same panelist decided the two cases, as was noted by the complainant in the wwwabb.com case who unsuccessfully attempted to remove the panelist for bias due to this. However, the respondent succeeded only in annoying the panelist by bringing up a huge list of irrelevant technicalities and referring to a confidential business plan for which no evidence was provided of its existence. Thus, the complainant prevailed.
This page was first created 15 Mar 2001, and was last modified 23 Oct 2011.