The recent domain name decision, Hydentra, LP. v. Xedoc Holding SA, WIPO Case No. D2008-0454 is of interest for a few reasons:
The Best Part – Cybersqatter Busted and PWNED
The Complainant alleged that the domain in question, metart.com, was owned and controlled by a man by the name of Slavik Viner. The Complaint further alleged that given Viner’s standing in the adult entertainment community, he must have known about the Complainant’s trademark and website (www.met-art.com) when he registered the domain in question, http://www.metart.com.
The Respondent claimed that Mr. Viner was not the owner of the domain name.
In support of its position, the Respondent also files a declaration in the name of Paul Raynor Keating that is said to be given “under the penalty of perjury”. Mr. Keating asserts:
(i) That he is an attorney licensed to practice by the State of California.
(ii) That he is a director of the Respondent and familiar with the ownership of the corporation and that “Mr. Viner is not listed in the records of the corporation as a shareholder”. (source at 5.22)
Perhaps Mr. Viner was “not listed in the records of the corporation as a shareholder,” but does that make the statement honest? Let’s keep exploring:
The respondent then continued to deny any involvement by Mr. Viner:
“Mr Viner does not control all or any part of Xedoc. Xedoc is a duly registered Luxembourg corporation. None of its shareholders are US citizens or residents. Its directors are publically listed. They include Mr. Keating who is a director of a number of corporations”. (source at 5.26)
The Panel was provided with various emails between the Respondent and the domain broker.
Some of these are redacted but an explanation of this is given in a footnote. In particular, the Respondent states: “Some documents may have been partially redacted so as to preclude the inadvertent disclosure of highly confidential information such as bank account numbers, user names, passwords and the like.”(source at 5.17)
However, it seems that more than this “highly confidential” information was redacted.
Complainant’s Response to the Respondent’s Supplemental Submissions
5.29 The Complainant contends in this particular submission that notwithstanding the Respondent redaction of certain emails appended to its submissions, it was possible for the Complainant to see what was behind those redactions. In particular, some text was not fully obscured and when the pdf text was copied by it to a Microsoft Word file, the redactions disappeared in their entirety.
5.30 Once these redactions are removed, the Complainant contends that it is apparent that Mr. Slavik Viner was the individual who conducted the negotiations with Sedo in relation to the purchase of the domain name. (source at 5.29-5.30)
Oh SNAP! It is bad enough to be PWNED for lying to a tribunal — it is even worse when you get caught by being so utterly stupid as to not know how to properly obscure text in a PDF document! However, stupid and unethical frequently walk hand-in-hand.
5.31 As a consequence the Complainant contends that the Respondent has sought to deliberately hide Mr. Viner’s connection with the Respondent. Further, since the material discloses Mr. Viner’s email address, the Complainant has been able to discover further evidence to show that Mr. Viner frequently frequents and posts on various “adult webmaster forums” and it is “not conceivable that he would not be aware of one of the most well-known adult nude photography sites in existence”. (source at 5.31)
Although this is the most interesting part of this decision, there are other issues of interest:
The UDRP provides no right of reply. Accordingly, some respondents will throw the most absurd, dishonest, and unsupportable contentions into their replies — hoping that they will get a panel that does not wish to consider the reply that points out the bullshit. This case provides a good articulation of circumstances where supplemental filings should be considered:
Although supplemental submissions may be accepted to address new legal developments, see, e.g., Pet Warehouse v. Pets.Com, Inc., WIPO Case No. D2000-0105 (April 13, 2000), or to rebut unexpected factual assertions, see, e.g., Pacific Fence & Wire Co. v. Pacific Fence and Jim Paradise, WIPO Case No. D2001-0237 (June 11, 2001), they should be allowed sparingly.
However, the Panel haму [sic] little hesitation in concluding that it should admit and consider these elements of the Complainant’s Supplemental Submission. First, elements of this submission address new factual assertions on the part of the Respondent in the Response … Second, those elements of the Complainant’s Supplemental Submission that contain allegations about Mr. Viner simply anticipate the Respondent’s Supplemental Submission as to the circumstances surrounding the registration. The Panel will not disregard them simply because they were made before rather than after the Respondent’s Supplemental Submission. (emphasis added)
It wasn’t my fault! Auto-Generated PPC Pages
Many cybersquatters use their domains to generate pay-per-click fees. They often claim that since the pay-per-click pages are automatically generated, they don’t bear any responsibility for the bad-faith use that arises when infringing ads are placed on the PPC pages. See Auto-generated websites equal bad faith under the UDRP.
This Panel wasn’t prepared to deviate from that train of thought.
6.21 Another factor is the Complainant’s evidence that at the time that the Domain Name operated as a “generic search portal” that it also generated a “pop-up” or “pop-under” page that generated sponsored links to adult related material. The Respondent’s contentions here are that it does not know how this page was created, it was not responsible for the content that appeared on this page and that it suspects that the page may have been generated as a result of searches that the Complainant has undertaken on the generic page when preparing the Complaint. However, in the Panel’s view this is an inadequate response.
6.22 For reasons that have been explained in a number of previous decisions (see, for example, Owens Corning v. N.A, WIPO Case No. D2007-1143) the owner of a domain name that is used for “domain parking” or similar activities can influence by the use of key words and the like, the sponsored search results that appear. Therefore, where the sponsored results produced do not obviously correlate merely to the alleged “generic” meaning of terms embodied in the relevant domain name, a panel may well infer that it influenced those results and from that go on to infer knowledge on the part of the respondent of the trade mark significance of this term. “Metart” is not a term that could be said to be generically associated with the adult goods and services. Therefore, those links call out for a proper explanation and none was really forthcoming.
It is unfortunate that UDRP panelists can impose no greater sanction than the transfer of a domain name. The attorney’s conduct in this case was both unethical and incompetent and should be the subject of a bar complaint.