The recently decided UDRP case of Manufacturas Muñoz S.A. Colombia v. Choi Sungyeon has Domainers up in arms…again. Domainer outcry is – once again – over a panelist’s commentary on whether a respondent’s asking price for a subject domain name was excessively above “fair market value.” I recently reported on the start of this potential new trend in the case of American Airlines, Inc. v. MegaWeb.com Inc.  

Although the panelist in the case of Manufacturas Muñoz denied transfer of the subject domain name to the complainant, he did make the following statement that has raised concerns in the domainer community:  “While the Panel finds the amount at which Respondent is offering to sell the Disputed Domain Name somewhat suspicious and disconcerting….”

The issues: whether a Domain name’s asking price should be considered at all in the determination of bad faith registration and use.  And, if so, to what extent should asking price be weighed in that determination?

Domainers are hard-pressed to see how UDRP panelists are experienced domain name real estate appraisal experts. I doubt UDRP panelists have much experience whatsoever in assessing the value of domain names. And if I’m right, which I suspect I am, panelists will need to become certified experts in domain name valuations should a trend of “asking price” assessment be imminent. I think most – if not all – would agree that an “I know it when I see it” standard is simply not acceptable.

I’m pondering whether a Domainer’s asking price has some place in the determination of bad faith registration and use in UDRP proceedings. I’m not advocating that an asking price, alone, could result in a finding of bad faith registration and use. However, I’m pondering whether asking price should play a role in those cases where the evidence strongly suggests bad faith and where evidence of an inflated asking price may be the missing link needed to “tip the scale” in favor of a complainant.

What are your thoughts?

Two recent UDRP cases involving the same Complainant and mark and essentially identical domain names (amerincanairways.com and americanairway.com) have yielded inconsistent decisions.

In the case of American Airlines, Inc. v. MegaWeb.com Inc. (reported here last week), the panel denied transfer of the domain name americanairways.com on the ground the subject domain name and Complainant’s trademark, American Airlines, are not confusingly similar. What made that case most interesting – and puzzling – is that the panel also concluded that the Respondent had no legitimate interest in the subject domain name and reserved the subject domain name in bad faith.

In my last post, I posed the following question: can domain names that aren’t confusingly similar to complainants’ trademarks be considered to have been registered in bad faith? No confusion equals no bad faith? Right?

It has come to my attention that there is also a companion case, which was decided only days earlier on March 29, 2010: American Airlines, Inc. v. Domain Admin a/k/a Taranga Services Pty Ltd.  Interestingly, the panel in that case concluded that Complaint’s mark, American Airlines, and the subject domain name, americanairway.com, are confusingly similar. The panel also concluded that the Respondent had no legitimate interest in the subject domain name and had reserved the subject domain name in bad faith. Accordingly, the panel ordered transfer of the subject domain name to Complainant.

Two things bother me. The first is the inconsistencies within the decision of the americanairways case (issued on April 13, 2010). Again, how can we have no confusion and still have bad faith? As I pondered in my previous post, might the panel have been suggesting that the Complainant simply fell short on evidence needed to prove confusion? Was the record simply lacking? The second thing that troubles me is that two separate panels reached opposite decisions, just days apart, in two cases involving – what appear to be – the same trademark and essentially same facts and domain names.

How do we reconcile these two decisions? Should there be a requirement that panels handling companion cases discuss them before rendering decisions to ensure consistency? Is there a need to take a hard look at the current UDRP system?