offCompany tries (and fails) to upgrade its domain through a cybersquatting complaint.
AIRY wanted to upgrade its domain to AIRY.com, but a WIPO panelist determined the case was brought in bad faith.
Talk about kicking someone when they’re down.
AIRY GreenTech GmbH has been found to have attempted reverse domain name hijacking for the domain name Airy.com. The domain name is owned by a travel business in Indonesia that has been struggling due to the pandemic. In fact, it has suspended its business due to the downturn.
This case has lots of twists and turns, but it ultimately shows how egregious the Complainant’s actions were in bringing the case, and then not withdrawing it when more facts became apparent.
AIRY GreenTech sells a plant system designed to clean your indoor air. It uses the domain airy.green for its website.
It tried to buy the domain name Airy.com back in 2015. Its highest offer for the domain was $40,000, but the owner wanted $80,000.
In 2017, the Respondent swooped in and bought the domain for $150,000. It operated the travel website AiryRooms.com and forwarded its new domain to AiryRooms.com.
A Uniregistry domain broker followed up with AIRY GreenTech after the Respondent bought the domain. This might have been confusing to AIRY GreenTech, but it still doesn’t excuse its case.
Even though Airy.com started forwarded to AiryRooms.com, AIRY GreenTech decided to file a UDRP in May against Airy.com. It argued:
The Complainant asserts that the redirection of the disputed domain name to another website demonstrates the illegitimacy of the Respondent’s interest therein and use in bad faith, adding that the Respondent is endeavoring to mislead Internet users into the belief that there is an association between the Complainant’s mark and the hotel booking services offered on the redirected site so that those searching for the Complainant will mistakenly reach the disputed domain name and be redirected to hotel booking related website unrelated to the Complainant whereby the Respondent will benefit commercially from traffic intended for the Complainant. The Complainant adds that it is likely that the Respondent registered the disputed domain name to prevent the Complainant from using its trademark in the disputed domain name thus further evidencing bad faith.
Sometimes I think lawyers should have a layperson read their arguments just to see if they make sense. That layperson would ask, “So the perpetrator is trying to trick your customers looking to improve their indoor air quality by selling travel in Indonesia?”
Yeah, it doesn’t make much sense.
If the Complainant didn’t do its homework before filing, it certainly should have known its case was dead after receiving verification information about who actually owned the domain. But it doubled down instead.
The panel wrote:
Once the original Complaint was filed, certain matters were disclosed upon Registrar verification which should also form part of the RDNH analysis as these should have influenced the Complainant’s decision to continue with the administrative proceeding. The Respondent’s personal name was revealed together with its email contact details which used an address “@airyrooms.com”. This is significant information as it appears to indicate a link between the Respondent and the website to which the disputed domain name was pointed. Despite the fact that the Complainant alleges that the said redirection of the disputed domain name was in fact indicative of bad faith, the Complainant appears to have made no attempt to investigate this new information. Had it done so, it is perfectly reasonable to conclude that it would have become aware of the Respondent’s employment status and link with “www.airyrooms.com”. This should also have alerted the Complainant to the fact that the Respondent was affiliated with the business to which the disputed domain name forwarded traffic. Both of these items were sufficient to demonstrate to the Complainant that the Respondent was legitimately connected to a business which was using the disputed domain name in connection with a bona fide offering of goods and services.
Despite this new material being placed before it, the Complainant merely indicated that it declined to direct the Complaint against the Respondent, noting that it was content to proceed against the privacy service which was the registrant originally noted on the public WhoIs record. Incongruously, the Complainant then went on to refer to the newly disclosed Respondent in the amended Complaint…
Panelist Andrew Lothian concluded that the case is an example of “Plan B” reverse domain name hijacking in which a company tries to buy a domain and resorts to UDRP when it is unsuccessful. He wrote:
Fundamentally, the Complainant’s failure to consider the dictionary word nature of the disputed domain name, the history of the disputed domain name and the background to its acquisition of rights in the AIRY trademark caused it to overlook multiple weaknesses in its case. Thereafter, the Complainant’s failure to make reasonable investigations as to the nature of the Respondent’s identity and business activities resulted in it failing to appreciate the nature of the Respondent’s rights and legitimate interests in the disputed domain name. These failures are all the more concerning given that the Complainant is represented by legal counsel.
The Panel concludes that this is a Complaint which was destined to fail and should never have been brought. In these circumstances, it is particularly regrettable that the Complainant’s actions have caused the Respondent to invest considerable time and resources in preparing and submitting a substantial Response at a time when, as it notes, it is also having to deal with the sudden detrimental effect of the current global pandemic upon its business.
It strikes me that now would be an excellent time for AIRY GreenTech to try to buy Airy.com. The domain owner has fallen on hard times due to the pandemic and has ceased its business. It would probably sell the domain for less than it bought it for.
Except…AIRY GreenTech took the low road instead of the high road. That’s going to make negotiating to purchase the domain much more difficult.
Office Freylinger S.A. of Luxembourg represented AIRY GreenTech. Fusion Law of Indonesia represented the domain owner.
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Author: Andrew Allemann