By Steve Levy
On June 3, 2024, I wrote a piece titled Falsified Evidence In The Age Of AI. Well, it’s happened again. Only this time, the forger is a Complainant asserting trademark rights.
The disputed domain name is lemeilleur.com and Complainant claimed ownership of a US trademark registration for LE MEILLEUR, Serial Number 98864499, with a registration date of August 31, 2024 covering “bed sheets, pillowcases and bed linen”. Submitted into evidence was a document that appears to be a USPTO record for the mark showing an application date of November 20, 2020 and a registration date of November 22, 2024. However, the Respondent asserted that the Complainant does not have trademark rights as it fabricated a USPTO trademark record. The Response highlighted that the alleged trademark is only a pending application which was filed on November 20, 2024 and it submitted its own USPTO screenshot as proof. It further argued that the Complainant had engaged in reverse domain name hijacking (RDNH) under UDRP Rule 15(e). In an additional statement, the Complainant admitted that the USPTO record was an application rather than a registration and instead claimed common law trademark rights in the LE MEILLEUR mark.
The panel stated that “it is well established that pending applications do not create trademark rights” and so it disregarded the evidence Complainant’s pending USPTO application. It went on to find that the Complainant had not proven the existence of common law trademark rights as its evidence was vague, contained no dates, and did not prove that the claimed mark had been used in commerce.
The decision could have ended there but the panel went on to find that “[t]he Respondent registered the disputed domain name back in November 20, 2001 as an attractive name consisting of a common phrase in French meaning ‘The Best’” and that “where a domain name is descriptive or generic such as a dictionary word, the first person to register it in good faith is entitled to the domain name and this should be considered a ‘legitimate interest’, in the absence of any evidence of targeting with intent to take unfair advantage of complainant’s mark.” It also found no bad faith since the Respondent could not have targeted the Complainant’s claimed mark where “[t]he disputed domain name was registered back in 2001 and the Complainant’s company was incorporated only in 2023.”
Where things get particularly bad for the Complainant is the panel’s finding that it engaged in RDNH by filing the complaint in bad faith to harass the Respondent. While the Complaint was filed pro se (i.e., Complainant was not represented by a lawyer but by someone in-house) the panel noted that “this is not an excuse in the circumstances of this dispute” where the Complainant “new or ought to have known that it could not succeed” in the dispute. Specifically, the Complaint was filed despite a lack of trademark rights and the Complainant was aware of this shortcoming yet provided false evidence to the panel and the complaint was filed after an unsuccessful attempt to acquire the disputed domain name from the Respondent (a “Plan B” scenario). The Panel concluded by saying that it “is not sure whether the Complainant used any artificial intelligence (AI) tools to create additional arguments or if there was something else. However, this, in the Panel’s view, is another evidence of abuse of proceeding.”
The UDRP is a simplified procedure that consists of a complaint and a response including whatever evidence is submitted by the parties. While panels have discretion to conduct their own limited investigations, UDRP proceedings lack the evidentiary tools available to the courts such as discovery, depositions, witness cross-examination, etc. So, there’s no way to know for certain whether the evidence in this case, and that involving the universalmusicgrouip.com domain name, are AI-enabled forgeries as this could require the use of expert witnesses. Also, unknown if whether these cases are isolated instances or part of a larger trend of forged evidence in UDRP cases.
However, the fundamentals remain the same – parties are advised to retain experienced and expert UDRP counsel to honestly assess cases before complaints are filed, and the burden of disproving suspicious evidence remains largely on the shoulders of the party opposing it.