Laches Defense Under UDRP

[cyberlaw]

This is an issue on which I've spent a bit of time over the last few months, and I thought it might be of interest here.

Laches is a legal defense that effectively questions an opposing party's good faith in bringing a case in an untimely manner. For example, Complainant A notices that Domainer B is parking a name it thinks it infringes, but decides to forego filing a complaint. Years later, after Domainer B has invested additional resources in the name, A files a UDRP. B would then argue that the delay should preclude A from winning the case.

While laches is not formally recognized under UDRP, it has had an interesting year in various UDRP opinions.

First came the Razorbacks.com decision, where a majoriy of the panel was willing to recognize the limited potential applicability of a laches defense:

http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1139.html

Upon seeing this decision, I wrote a blog post on the issue, effectively suggesting that the laches defense is now "in play" in UDRP matters:

http://www.cyberlaw.pro/cyberlawg/domain-names/a-potential-new-defense-under-udrp.html

I was lucky enough to enjoy a good response to that post. One panelist even specifically referenced it in a subsequent decision:

http://www.wipo.int/amc/en/domains/decisions/text/2010/d2010-0228.html

(You can see the specific reference to my post in the third-to-last paragraph).

I eventually posted a "wrap up" style article where I recommend that respondents in UDRP matters consider raising a laches defense ONLY when appropriate.

http://www.cyberlaw.pro/cyberlawg/domain-names/udrp-panelist-cites-menhart-analysis-on-laches.html

If more proper laches defenses are raised, it may lead to greater discussion of the issue. Overall, I think that benefits domain name holders.

 

[INFORG]

Good stuff - Thanks for all of your efforts.

 

[DaddyHalbucks]

It has long been a principle of intellectual property law that you have to diligently enforce your rights, or you may lose them.

 

[David G]

Thanks Eric. Interesting and helpful.

 

[cyberlaw]

Thanks for the positive comments. I'll do my best to keep an eye on the issue and update accordingly.