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November 30, 2010 / Nate Harris

Much Ado About Nothing?

In the week or so since the N.Y. Times decision was announced, the blogosphere has treated it as a sea change. (TheDomains calls it “one of the most important decisions for domain holders, as the panel finally fund that the legal doctrine of latches can apply to domain disputes.”) Of course, it’s still too early to tell what effect the decision will have, and, while a decision of a three-member Panel is influential, no UDRP decision is binding on other panels.

More importantly, though, I think it’s important to recognize that the decision is based on the the respondent’s prior rights. One need look no further than the one sentence used to dispose of each of the second and third prongs: “This element has not been analyzed as Respondent’s rights are senior to Complainant’s.” As the Panel says, “[w]here such a Complainant fails to police its claimed mark and does nothing for a substantial time while a Respondent develops an identical domain name for its own legitimate purposes, laches should bar that Complainant from turning a Respondent’s detrimental reliance to its own unjust benefit” (emphasis added). While this Panel thinks laches is appropriate on these facts, it makes clear that the decision is not based, in whole or in part, on laches.

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