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September 14, 2010 / Nate Harris

RapidShare AG v. Ilya Efimov

Summary of RapidShare AG and Christian Schmid v. Ilya Efimov
(WIPO Case No. D2010-1105)

Filed: July 2, 2010; Decided: August 17, 2010 (Panelist: Matthew S. Harris)

Disputed Domain Name: <rapid.org>

rapid.org

rapid.org

The Parties

Complainant is RapidShare AG (“RapidShare”), a file-sharing service launched in 2006. RapidShare asserts that it runs one of the largest file-sharing services in the world, and claims that its homepage <rapidshare.com> is the twelfth-most visited website in the world.

Respondent Ilya Efimov is an individual (specifically, a woman) living in the Russian Federation.

Though both parties seem to be fudging the dates of first use in this proceeding, WHOIS information indicates that Ms. Efimov registered the disputed domain on September 10, 2003. The disputed domain name points to a site that links to content including movies, music, and television shows. In the words of RapidShare, the site “celebrates copyright piracy.” [“Copyright piracy”? Are they sharing PDFs of copyright registrations? Hard to believe they’re not higher than twelfth.]

Procedural

RapidShare attempted to file a supplemental submission, essentially consisting of further argument in the same vein as the complaint. Since those rehashed arguments could have been filed earlier, the Panel declines to admit them.

Identical or Confusingly Similar

The Panel notes two related cases that are relevant to the current proceeding. In RapidShare AG, Christian Schmid v. N/A Maxim Tvortsov (WIPO Case No. D2010-0696), the domain name at issue was <rapidbay.com>. In that case, the panelist found that the single shared word “rapid” was not enough for confusing similarity. By contrast, in RapidShare AG, Christian Schmid v. majeed randi (WIPO Case No. D2010-1089), the domain <rapidpiracy.com> was found to be confusingly similar to RapidShare, based on the “conceptual allusion” between “piracy” and “share.”

The Panel agrees with the approach in Tvortsov, finding that the overlap of the word “rapid” is not enough to find confusing similarity. Furthermore, “no evidence has been brought before the Panel in this case that Rapidshare is frequently (or even sometimes) referred to as ‘rapid.’” (internal quote omitted).

Accordingly, the disputed domain name is not confusingly similar to RapidShare’s mark.

Bad Faith

The Panel finds that, despite some confusion as to dates, the disputed domain was registered on September 12, 2003, whereas RapidShare did not engage in any business activity prior to 2006.

Accordingly, there is no evidence of bad faith registration.

Decision

The complaint is denied.

Commentary

The Panel engages in a somewhat lengthy discussion of the double requirement of bad faith registration and use:

Historically, the Policy has always been understood as imposing upon a complainant the burden of showing bad faith registration and bad faith use. There has been much criticism of that requirement. It can in certain circumstances lead to results which have been seen as unfair to complainants. As a consequence, many other domain name dispute resolution policies have jettisoned this double requirement and adopted a bad faith registration or use test.

In most cases the dual pronged test of the Policy’s conjunctive requirement under paragraph 4(a)(iii) does not affect the ultimate outcome of the case. Matters are also helped in this respect by the fact that many panels have interpreted the definition of registration in a wide fashion so as to include the change of registration details into the name of a fresh entity. Indeed, this Panel has also gone as far to suggest that change of registration details into the name of a separate legal entity, even if the domain name remains under the control of the same person, constitutes a fresh registration under the Policy (see ehotel AG v. Network Technologies Polska Jasinski Lutoborski Sp.J., WIPO Case No. D2009-0785). Nevertheless , there remain a small number of cases where the double requirement can make a difference to the outcome of the case.

In the circumstances, it is perhaps unsurprising that recently some panelists have suggested that the double requirement is not in fact mandated by the Policy. The reasoning that lies behind that suggested approach is set out in such cases as City Views Limited v. Moniker Privacy Services / Xander, Jeduyu, ALGEBRALIVE, WIPO Case No. D2009-0643 (“Mummygold”) and Octogen Pharmacal Company, Inc, v. Domains by Proxy, Inc. / Rich Sanders and Octogen e-Solutions, WIPO Case No. D2009-0786 (“Octogen”).

Nevertheless, for the reasons given in Camon S.p.A. v. Intelli-Pet, LLC, WIPO Case No. D2009-1716, Torus Insurance Holdings Limited v. Torus Computer Resources, WIPO Case No. D2009-1455, TRS Quality, Inc v. Namespro.ca Private WHOIS, WIPO Case No. D2010-0393, Burn World-Wide, Ltd. d/b/a BGT Partners v. Banta Global Turnkey Ltd, WIPO Case No. D2010-0470, and Editions Milan v. Secureplus, Inc., WIPO Case No. D2010-0606, the Panel is unconvinced by the so-called Mummygold/Octogen analysis. Both bad faith registration and use must be shown.

This Panelist must have an axe to grind, because he didn’t really even need to get to the bad faith prong. Often, once the complaint fails on one ground, the Panel declines to reach the others. That said, it’s always welcome to see a Panel go to the trouble to cite precedent.

Epilogue

<rapid.org> redirects to <bolt.org> now, which appears to still be a content-sharing site.

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3 Comments

  1. Yuliya Mathis / Sep 14 2010 3:44 pm

    I definitely see some bad faith here. Mainly because there is no way that Ilya Efimov is a female from the Russian Federation. Ilya is only a male name and “ov” is a male ending in Russian. Unless she recently undergone some major changes in her life, someone is not telling the truth.

  2. Nate Harris / Sep 14 2010 5:38 pm

    Interesting…it was probably an assumption on the part of the Panelist, because UDRP proceedings are on the papers and I don’t see how the Respondent would have been able to work his/her gender into the response.

    My Russian speaking skills notwithstanding (Yuliya can attest to them), I will admit I thought it was a woman’s name, too. Good thing I’m running a blog and not a dating site.

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