If you are going to lie in a UDRP case – at least be smart about it! Hydentra, LP. v. Xedoc Holding SA

August 3, 2008

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)

This is why even if you are ethically-challenged, honesty is still the best policy. You never know when a dumb maneuver will reveal your lack of honesty for all the world to see.

Although this is the most interesting part of this decision, there are other issues of interest: Read the rest of this entry »

UDRP Decision Discusses Privacy Services and Bad Faith

September 7, 2008

A recent UDRP case gave one of the harshest criticisms of domain registration privacy services rendered to date. See Ustream.TV, Inc. v. Vertical Axis, Inc., WIPO Case No. D2008-0598.

The majority of the Panel also finds that the use of a privacy shield in this case further supports its finding of bad faith registration. Although privacy shields might be legitimate in some cases – such as protecting the identity of a critic against reprisal – it is difficult to see why a PPC advertiser needs to protect its identity except to frustrate the purposes of the Policy or make it difficult for a brand owner to protect its trademarks against infringement, dilution and cybersquatting. In circumstances like this, the privacy shield may also allow registrants to transfer domain name registrations amongst themselves without any public record that there has been a transfer, thus allowing them to evade enforcement of legitimate third-party rights or to obstruct proceedings commenced under the Policy (see Sermo, Inc. v. CatalystMD, LLC, WIPO Case No. D2008-0647, which held that use of privacy shield can be “treated as evidence of bad faith . . . when serial registrants use privacy shields to mask each registrant’s actual date of registration”). Such use defies the Policy’s overriding objectives to preserve accountability for unlawful acts on the Internet and to curb the abusive registration of domain names and cybersquatting (see, e.g., Fifth Third Bancorp v. Secure Whois Information Service, WIPO Case No. D2006-0696; HSBC Finance Corporation v. Clear Blue Sky Inc., WIPO Case No. D2007-0062).

It didn’t help that the Respondent in this case seems to have pretty clearly provided perjurious testimony. Unfortunately, that kind of thing is not rare. See If you are going to lie in a UDRP case – at least be smart about it! Hydentra, LP. v. Xedoc Holding SA.

Despite the clear perjury and apparent bad faith, panelist David Sorkin dissented. No big surprise there given the hundreds of thousands of dollars he has made by being selected by respondents as one of their panelists-of-choice.