In the recent decision of Kohler Co. v. Thomas Mcivor (Nat. Arb. Forum 1245293, March16, 2009), a single member Panel was faced with a dispute over the domain www.kohlersucks.com. Complainant, Kohler, is the well known kitchen and bath supplies company. Kohler maintains a website at www.kohler.com. Kohler also sells other various services and products including furniture, engines, generators, and golf resorts. Respondent appeared to be operating a criticism web site related to Kohler. Respondent claimed to never have used the disputed domain for commercial gain and sought protection of his free speech rights.
Generally panels are tasked with the UDRP policy developed by ICANN: Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.
In the instant case, the Panel declined to address both the first and second prong of this test and focused its efforts on the third prong. “The Panel finds that Respondent has not registered or used the disputed domain name in bad faith since Respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii).” The Panel went further to explain:
The Panel finds that the “sucks” suffix would create an initial impression of a complaint website that is unaffiliated with Complainant, and when coupled with a link to a better business bureau website, would reinforce this fact and be viewed as a vehicle for enabling visitors to voice complaints.
Based upon the Panel’s findings, it determined that Respondent’s use of a commentary or criticism web site demonstrated a right or legitimate interest and that it fell within the fair use exception stated in Policy ¶4(c)(iii).
Ultimately, the Panel DENIED Complaint’s request for transfer.
DefendMyDomain Commentary: As of the date of this posting, it appears that the disputed domain no longer resolves to an active website. It remains unclear if there was a post-decision settlement agreement between the parties.
