Steve Levy ⬥ October 28
UDRP panelists almost never deny a UDRP complaint based on a laches defense. As I have discussed in past blog posts, laches is a legal doctrine that can provide a defense when an adverse party has been unreasonably delayed in asserting its rights and its reliance on that delay results in harm to the defending party. Although extremely rare in UDRP decisions, this was the case in a recent rather egregious UDRP filing involving a 17-year delay that led to a unanimous three-member panel decision to deny the complaint.
The complaint was filed by CoorsTek, Inc. via the National Arbitration Forum (NAF) against Martin Packer/PulseGuard over the domain name www.flow-guard.com. In its filing, the Complainant states that the Respondent should not be allowed to hide behind laches, arguing that the reason for the delay is that it only acquired the rights to the FLOWGUARD trademark in 2010 and that the Respondent’s efforts toward diverting business away from the Complainant have recently increased.
The Respondent, in a statement of his own, points out his operation of the website for almost 17 years prior to the complaint and that even if the Panel does not deny the complaint on the basis of laches, it should on the basis that it clearly show that the Complainant does not truly believe the Respondent engaged in bad faith registration. He adds that the Complainant was further likely aware of the disputed domain name since at least 1998, when it registered its own flowguard.com domain name.
In its decision, the Panel best sums up how it arrived at its conclusion in the following quote: “It appears to the Panel that any business disruption or confusion suffered by Complainant as a result of Respondent’s domain name registration was either non-existent or de minimis, else Complainant would have taken action in a more timely fashion.” The Panel further refers to a number of previous cases in which other panels came to similar conclusions.
This case should serve as a reminder to brand owners, not to procrastinate when searching for and going after cybersquatted domain names, or they could find themselves facing the same problem as the Complainant in this case. Of course I also can’t help myself from noting that I had a good chuckle at the Panel’s typo, substituting “Lashes” for “Laches” in its decision. Unintentional as it may have been, it’s a fitting mistake considering the “whipping” this Complainant took.