Not responding to cease & desist letter is bad faith under the UDRP

In a recent Uniform Domain Name Dispute Resolution Policy (UDRP) decision concerning the domain name detailsmagazine.com (Advance Magazine Publishers Inc. v. Moniker Privacy Services),  a WIPO panelist found that the domain name owner’s (a.k.a. Respondent’s) failure to respond to the Complainant’s cease and desist letter constituted bad faith under the UDRP.

Summary

The Complainant owned a number of trade-mark registrations for DETAILS in the U.S. and Hong Kong., with the earliest registration issuing in 1983. The detailsmagazine.com domain name was subsequently registered by a Hong Kong entity in 2002. The Complainant become aware of the domain name in 2008, at which time  the Complainant’s counsel e-mailed a cease and desist letter to the domain name owner. The owner did not reply. The Complainant then attempted to mail a letter to the owner, but did not do when when it become apparent that the owner’s mailing address was incomplete or inaccurate.

The domain name owner subsequently changed.  Once again, the Complainant e-mailed a cease and desist letter to the new owner, advising that if the owner did not respond by a specific date, UDRP proceedings would commence. The Complainant initiated proceedings when the requested response was not received. The Respondent did not participate in the UDRP proceeding.

The WIPO panelist found for the Complainant. The ruling was based in part on the panelist’s determination that the Respondent’s failure to reply to the Complainant’s communications indicated bad faith. The panelist found that there were other grounds for bad faith, namely the fact that the website was being used as a pay-per-click link farm for third party sites and that the domain name owner used a privacy shielding service.

Significance

What is the significance of the Advance Magazine Publishers Inc. v. Moniker Privacy Services decision?

Complainants should consider sending a cease and desist letter to the Respondent before commencing UDRP proceedings.  If the Respondent does not reply, the  Complainant’s case may be strengthened.

If the domain name is important to a Respondent, the Respondent may want to consider responding to a cease and desist letter in part to counter allegations of bad faith due to non-responsiveness where the Complainant’s case is weak.  A response should only be sent when it will not result in the Respondent making admissions against interest or otherwise harm the Respondent’s position. The Respondent should consult with qualified legal counsel before responding to the Complainant’s letter to ensure a response is appropriate. Also,  the Respondent should make sure that communications between the parties are on a without prejudice basis to ensure that those communications cannot be used against the Respondent.

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