In another blog post, I wrote about the sometimes confusing circumstances in which domain name dispute panelists will consider supplemental, or additional, filings from the parties (in addition to a complaint and response) in cases under the Uniform Domain Name Dispute Resolution Policy (UDRP). I quoted the WIPO Overview, which states, in part, that supplemental filings may be appropriate where a party can "show its relevance to the case and why it was unable to provide that information in the complaint or response." While the facts and circumstances of every case are obviously unique, one situation in which panelists often accept supplemental filings is when a respondent has raised an allegation of "reverse domain name hijacking."
Reverse domain name hijacking (RDNH) is defined as "using the [UDRP] in bad faith to attempt to deprive a registered domain-name holder of a domain name." While the merits and impact of reverse domain name hijacking are better suited for another discussion, a domain name registrant that raises the RDNH issue in a response should be aware that panels typically allow a complainant to respond to such an allegation via an additional filing.
For example, in the following UDRP proceedings, panels have accepted supplemental filings from complainants, to respond to RDNH:
- Puls Elektronische Stromversorgungen GmbH v. NetIdentity, WIPO Case No. D2002-0205: “In light of the allegation by the Respondent that the pursuit of this administrative proceeding by the Complainant constitutes Reverse Domain Name Hijacking, the Panel takes the view that the Complainant ought to have an opportunity to respond to that allegation and has decided to accept the Complainant’s Supplemental Filing insofar as it is relevant to that issue.”
- Cosmos European Travels AG v. Eurotech Data Systems Hellos, Ltd., WIPO Case No. D2001-0941: Where a respondent asks a panel to find reverse domain name hijacking, “the Complainant is entitled to defend itself” and, therefore, a supplemental filing from the Complainant along with relevant supporting documents “should be admitted in their entirety.”
The decisions in these cases to accept supplemental filings where RDNH is raised was also adopted in more recent UDRP decisions, including Bryn Mawr Communications, LLC v. Linkz Internet Services, WIPO Case No. D2016-0286; and Impossible BV v. Joel Runyon, Impossible Ventures, WIPO Case No. D2016-0506. (Disclosure: I served on three-member panels in both of these 2016 decisions.) In the Impossible BV decision, the panel wrote that it would consider the parties' additional filings -- "but only to the extent that they address the issue of Reverse Domain Name Hijacking."
These decisions are consistent with the prevailing view that a supplemental filing is appropriate where (as I previously wrote) it is "relevan[t] to the case" and where a complainant "was unable to provide that information in the complaint." In other words, a complainant cannot know that a respondent would assert an allegation of RDNH until the respondent has actually done so. At that point, a complainant is usually able to respond to the allegation via a supplemental filing.
However, some panels have handled the issue differently. For example, in Patricks Universal Export Pty Ltd. v. David Greenblatt, WIPO Case No. D2016-0653, the panel "disallowed" the complainant's supplemental filing, writing: "The Complainant being the initiator of the proceedings has an obligation to anticipate the possible arguments that the Respondent may put forward as there is no other opportunity to file additional evidence. It is only in exceptional circumstances that a UDRP panel will allow additional evidence to be filed. There is nothing exceptional which justifies the unsolicited filings of the Complainant." (Perhaps what the panel described as "the Complainant’s empty rhetoric, mudslinging, and unsupported factual allegations" convinced it that a finding of RDNH was compelled regardless of anything further the complainant might add.)
(This post was updated on August 17, 2016, to add the discussion of the Patricks Universal Export case.)