The Hon. Neil Brown QC, a very well known UDRP panelist, wrote an article on his personal blog about “Re-Filing of a UDRP Complaint”. He is commenting on a recent decision:
Reliance Telecom Limited v Domains By Proxy, LLC, Sukhraj Randhawa, WIPO Case No. D2014-0947, Disputed domain name: <reliancegroup.com>,September 11, 2014.
Here are some interesting comments he made:
“This case concerned a complainant who filed a complaint in relation to the same domain name and the same respondent against whom it had previously filed a complaint. In other words, can you bring the same case twice? The decision outlines the circumstances under which a re-filed complaint will be accepted.”
“‘On August 20, 2013, a prior UDRP proceeding had been filed by Complainant against Domains ByProxy.com and Sukhraj Randhawa with respect to the same domain name <reliancegroup.com>. WIPO Case No. D2013-1470 (“First Complaint”). The decision was given on October 8, 2013, denying the First Complaint, on the grounds that Complainant had failed to establish bad faith.’ So at that stage the Complainant had lost.
But this year the Complainant decided to have a second bite at the cherry and filed a new Complaint, WIPO Case No. D2014-094.We will call this the Re-filing.”
“The complainant advanced two principal arguments in support of the re-filing of its Complaint: (1) “Discovery of credible and material evidence which could not have been reasonably foreseen or known; and (2) “Breach of natural justice/due process”.”
“Was there ‘new evidence’?
The ‘new evidence’ the Complainant relied on was that it had discovered that the Respondent was a cybersquatter and that it had only discovered this after the first case was over. It claimed that this was so because after the first case, it discovered the email address of the Respondent and by that means was able to find out about the other UDRP cases in which the Respondent had been involved.
The Panel was not very impressed by this argument; the Complainant could have found out these so-called new facts even without the email address of the Respondent. So, the evidence was not “new”.
The Panel noted that the so-called newly discovered evidence ‘could, in appropriate circumstances, result in a proper re-filing’. But the circumstances here ‘are not sufficient to warrant a further proceeding between the same parties over the same domain name’. In particular, the Panel was ‘not convinced that [the] Complainant could not have uncovered the existence of multiple domain names held in the name of the Respondent…during the pendency of the First Complaint.’ Nor did the Complainant ‘explain why this form of rudimentary fact-finding was not employed in the investigation leading to the First Complaint.’ As such, the Panel rejected the characterization of the evidence as ‘new’ (as occurred in The Knot, Inc. v. Ali Aziz WIPO Case No. D2008-0033), accepting the Respondent’s characterization of the re-filing as ‘an attempt to “patch-up” the flaws in the original complaint’.
Second argument – Breach of natural justice
The submissions relating to breach of natural justice were held to be unfounded.
“In light of the above factors, the Panel denied the re-filed Complaint. Crucially, this decision was ‘confined to the merits of the application for refilling under the Policy’, as distinct from the ‘merits of the substantive Complaint’.”
“Take home message
The burden on the complainant of establishing that its re-filed complaint should be entertained under the Policy is a high one. As such, prospective complainants should only seek to re-file a complaint if the limited grounds for rehearing or reconsidering a complaint under the Policy can be clearly made out. Panels don’t look kindly upon complainants who re-file complaints for the purpose of remedying their prior errors, nor those who seek to blame UDRP panels for their own ineptitude. Complainants should also be reminded that if they are not successful under the Policy, there may still be other forums in which they could seek potential remedies.”