Emboldened panelists are discovering that they can disregard the clear language of the UDRP with impunity.   Like a perverse game of ‘telephone‘, it begins when one panelist fudges the rules slightly.   Then in a subsequent case another panelist cites the first panelist’s interpretation and adds his own twist to the ‘interpretation’.   Step by step the ‘interpretations’ move further and further from the actual language of the UDRP until we reach a point, as we have in the recent parvi.org decision, where the reasoning in the decision so blatantly differs from the criteria in the UDRP as to contradict it entirely.

How does this apply to the Parvi.org case?   The relevant provision of the UDRP in the Parvi.org decision is Paragraph 4(a)(iii), which states that the Complainant must prove that the disputed domain name “has been registered and is being used in bad faith”.   Note that the connecting word is “AND” not “OR”.   The Policy states that in order to succeed in its Complaint, one of the elements that the Complainant must prove is that the domain has been registered in bad faith.   That seems clear.   But wait, we have yet to witness the powers of reasoning that can be called upon by a UDRP panelist.

The basic facts in the case are straightforward.   The City of Paris has a French trademark on PARVI.   Respondent lives in California and registered parvi.org.

There is no evidence that the Respondent was aware of the French trademark at the time of registration.   Indeed, sole panelist Andrew Frederick Christie finds:

There is insufficient evidence on the record for this Panel to find, on the balance of probabilities, that the Respondent registered the disputed domain name in bad faith. Although it is certainly possible that the Respondent was aware of the Complainant’s PARVI trademark, and of the Complainant’s programs under that trademark, at the time the Respondent registered the domain name, this seems unlikely given the different geographical locations and native languages of the Complainant and the Respondent. Thus, this Panel is not satisfied, on the present record, of the probability that the Respondent registered the disputed domain name with the intention of benefiting from the Complainant’s PARVI trademark.

So under the the clear language of the UDRP, as we saw above, the Complaint must fail as the Complainant has not proved that the Registrant registered the domain in bad faith.

Not so fast, according to Christie:

For the reasons explained above, however, this finding does not resolve the dispute. Rather, it is necessary for this Panel to determine whether, in all the circumstances, the Respondent is acting in bad faith. The evidence on the record leads this Panel to conclude that, on the balance of probabilities, the Respondent is acting in bad faith.

Christie recognizes that the Policy as written would be powerless to order the transfer of a domain when someone who registers a domain in good faith later uses the domain in bad faith.   Christie is   correct in this observation.   But he draws the wrong conclusion.

The correct conclusion is that the Policy was intentionally created with a limited focus: to address only blatant instances of cybersquatting and trademark infringement.   It was not intended to be the remedy for any and all shenanigans that people can play with domain names.   There are clear laws on the books dealing with trademark infringement.   The penalties under the Anti-Cybersquatting Protection Act are much more severe than in the UDRP.   If a domain owner is using a domain in bad faith, and if the UDRP does not apply, the injured party can seek a remedy through the courts.

The conclusion Christie draws, however, is that he and other similarly minded panelists can decide on their own to rewrite the language of the UDRP to give it a more expansive reach more in keeping with their views of what the UDRP should accomplish.   As Christie states:

The intent of the Policy is to provide a fair and efficient mechanism for trademark owners to obtain redress in situations where their trademark rights are abused as a result of bad faith activities of domain name registrants. There seems no reason in logic or in principle why the availability of redress should be confined to situations where bad faith is present at the time of acquisition of the domain name.   To limit the trademark owner’s redress in this way would result in outcomes that make no sense.

In other words, Christie is stating “I don’t like the conclusion I must reach if I follow the Policy, therefore I will rewrite the policy to reach the conclusion I prefer.”

Christie’s mistake lies here:

There seems no reason in logic or in principle why the availability of redress should be confined to situations where bad faith is present at the time of acquisition of the domain name.

It should not matter that Christie can find no reason ‘in logic or in principle’ to limit domain transfers under the Policy to situations where bad faith is present at registration.   It is not up to him, nor should his opinion on this matter.   His responsibility is to apply the UDRP AS WRITTEN.   If he doesn’t like the way the policy is written he can advocate to change it.   Instead he abuses his position of authority as sole panelist in this case   to disregard what the UDRP actually says and substitutes instead what he wants it to say.

Christie, of course, does not say in his decision that he has decided to rewrite the UDRP and is basing his decision on his ‘improved’ version.   Christie must in his decision appear to be applying the UDRP while at the same time coming to a conclusion that contradicts the clear wording of the UDRP.

How does he accomplish this feat?   He clothes his naked disregard for the Policy in ponderous phrases: “important reconsideration”, “based on a close reading of the decision”, “The issue … is profound, and the panelist addressing them is distinguished”, “a logical and incremental evolution of panel thinking”.

The drafters of the UDRP, one must think, believed they had drafted a clear document.   But it has devolved into a meaningless Tower of Babel with tribes of like-minded panelists “reconsidering” the original document, basing their decisions on the interpretations of “distinguished panelists” from their same tribe, as through repeated application of “logical and incrementation evolution” they have birthed a policy that is an entirely different species from its original forebearer.

Further discussion and analysis at DefendMyDomain.com, DomainNameWire.com.   Note Attorney John Berryhill’s comment that a simple Google search would have proven Respondent’s legitimate use of parvi.org, and should in itself have been sufficient to deny the Complaint.