optus.com decision

[Ovicide]

This decision is dated January 18, 2005. It's in favor of the complaiant.

http://arbiter.wipo.int/domains/decisions/html/2004/d2004-0734.html

The decision seems to be rather weak.

Also, in 4. Factual Background is this unusual statement:

On May 4, 2000, the Complainant wrote to the Respondent threatening to take proceedings against him under the Policy. It appears that no proceedings commenced after this letter was sent.

Several years passed after the complainant made this threat. Isn't this lengthy delay reason to reject the complaint?

 

[jberryhilljberryhill is verified member.]

Typically a presumption of laches arises after six years.

 

[Ovicide]

Typically a presumption of laches arises after six years.

All right.

The panel's reasoning doesn't seem as clear to me in this decision.

Maybe because the mark is famous in Australia, and because both parties are in Australia, tilted it against the respondent.

 

[jberryhilljberryhill is verified member.]

The discussion of general principles is pretty good, e.g.

The Respondent is correct in contending that mere knowledge of a prior trade mark right does not in itself support a finding of bad faith registration and use. Instead, the Panel needs to determine whether the evidence indicates that the Respondent registered and used the Dispute Domain Name primarily with a view to taking advantage for its own gain of the Complainant’s registered trade mark rights and reputation (paragraphs 4(b)(i)-(iv)).

On the laches thing, there is this note:

Had the Respondent after this date used the Disputed Domain Name in connection with a bona fide offering of goods or services and without links to unconnected third parties than the Complainant’s delay in bringing these proceedings may have seriously affected its chances of obtaining relief under the Policy.

In other words, there were enough "new facts" that arose after the original complaint that rendered the delay in prosecution excusable.

Where things go south begins here:

In all the circumstances it seems highly probable that[...]

Which "circumstances" might include facts beyond those summarized in the decision, including the geographical co-incidence you noted. The panelist apparently felt that there were some gaps in the facts as recited by the respondent. Gaps have a tendency to be filled by inferences.

 

[Theo]

Crikey! It's all clear as 'roo droppings in the land of Oz, matey!