Reverse Domain Name Hijacking
A finding of Reverse Domain Name Hijacking (RDNH) is appropriate where a Complainant uses "the UDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name." Rule 1. Panels have found RDNH where the facts demonstrate that the complainant knew it could not succeed as to any of the required three elements – such as the complainant's lack of relevant trademark rights, clear knowledge of respondent rights or legitimate interests, or clear knowledge of a lack of respondent bad faith. RDNH also may be found where a complainant provides intentionally incomplete material evidence. WIPO Overview § 4.16.
This case provides a textbook example of when a finding of RDNH is warranted. Complainant (who proceeded pro se here, but who was represented by counsel in its 2020 trademark application to the USPTO), knew that its mark was not registered on the USPTO Principal Register and, as such, the mark enjoyed no presumption of validity. Complainant also knew that it tried, without success, to register its mark on the Principal Register in 2020, but the USPTO rejected that application and expressly found that Complainant's evidence failed to establish secondary meaning. These facts alone are sufficient to support a finding of RDNH. That Complainant failed to disclose the 2020 USPTO rejection to the Panel further supports a finding of RDNH.
In addition, as shown above, Complainant's allegations as to elements two and three of the Policy were cursory and utterly without merit. They ignored the obvious, common meaning of the term "daily workout," and failed to include any allegations of fact to support the argument that Respondent lacked rights or legitimate interests in this domain name or that Respondent was aware of and targeted Complainant with its registration of this domain name.
Although Respondent did not specifically seek a finding of RDNH, "it is not necessary for a respondent to seek an RDNH finding or prove the presence of conduct constituting RDNH." WIPO Overview 4.16. Rather, it is the Panel's obligation to enter a finding of RDNH when the evidence supports such a finding. Rules, Paragraph 15(e) ("If after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.") (emphasis added). Such a finding is appropriate here.
