0.10 Dismissal without Prejudice
Where a Complaint is dismissed, it generally cannot be brought again absent exceptional circumstances such as new evidence which was not available at the time of the original Complaint. Implicitly, dismissal is therefore “with prejudice”. Panels may however occasionally dismiss a Complaint “without prejudice”, meaning that the Complainant is expressly given the opportunity to bring its case again without having to meet the usual strict requirements for a refiled case.
Dismissal “without” prejudice may occasionally be appropriate where circumstances and justice dictate that a Complainant should be allowed to refile in order, to for example, correct a very technical deficiency or minor oversight in a Complaint. Dismissal without prejudice is therefore an alternative to issuing a Procedural Order and may be a fairer resolution because it appropriately denies a deficient Complaint but doesn’t foreclose the possibility of a Complainant correcting the deficiency on its own via a refiled Complaint, without a Panel directly soliciting rectification from a party and thereby being perceived to have expertly assisted a Complainant in improving its case.
Where the Respondent has filed a formal response, a dismissal without prejudice can be unfair to the Respondent. The Respondent has likely expended considerable time and expense in preparing a Response. If the Complainant has failed to adequately support its allegations, then the Respondent is entitled for the Complaint to be Denied with prejudice, rather than for the Panel to extend an invitation to the Complainant to refile the Complaint and to therefore put the Respondent to the burden of needing to respond again. If new circumstances develop after the decision is issued that are relevant to the outcome of the dispute, then even if the Panel has denied the complaint with prejudice, the Complainant can petition for a Refiled Complaint to be accepted by a new Panel by attempting to convince the new Panel that the high threshold for refiling a Complaint that has previously been Denied with prejudice has been met. Thus where the Respondent has filed a formal response and the Complainant has not prevailed, dismissals are with prejudice in the ordinary course, and it is only in exceptional cases where dismissal should be without prejudice.
Additional Information
Relevant Decisions
Authentic Brands Group, LLC v. Shipley Marmion, Forum FA2406002104055, <authentlc.com>, Dismissal without prejudice
Accordingly, it is Ordered that the Complaint be and it hereby is DISMISSED. This Order is based upon a failure of evidence as to one of the three elements, which evidence was not presented but may well exist. Under these circumstances, and recognizing that Complainant appeared herein without legal counsel, the Panel’s Order is entered without prejudice to Complainant’s right to file another UDRP administrative proceeding involving the domain name supported by competent evidence.
Mediacom Communications Corporation v. DANIELE RUSSO / MEDIACOM PAY S.R.L., Forum FA2402002084217, <mediacom-pay.com>, Dismissal without prejudice
However, the Panel notes that it has been almost one year since the disputed domain name was registered, and thus there can be legitimate doubts with respect to Respondent’s actual intentions regarding use of the disputed domain name. Consequently, the Panel will dismiss the Complaint without prejudice.
Silver Point Capital, L.P. v. Elisha Finman, Forum FA2401002079392, <silverpointequity.com> et. al., Denied
The Panel notes that in the event that further information arises that suggest that the motives of the Respondent in registering the Domain Names were anything other than the intention to use in respect of his Silver Point Equity firm, there may be grounds to consider a refiled complaint, subject to the applicable criteria.
Insperity, Inc. v. Atif Javed / Insperity Global Services, Forum FA2309002063250, <insperityglobalservices.com>, Dismissal without prejudice
The Panel could suspend the proceedings until Respondent implements a live website, which website could provide sufficient evidence to determine whether Respondent does have rights or legitimate interests, and whether the disputed domain name was registered and used in bad faith. In this context, the Panel notes that the resolving webpage appears to be a customized page and not a page automatically provided by the registrar.
However, that may result in a significant delay in disposing of the instant case, and that would not be consistent with the basic purpose of the Policy…
Thus the Panel declines to suspend the proceedings and it will dispose of the case by dismissing the Complaint, without prejudice.
Pioneer Natural Resources USA, Inc. v. FU, LEI, Forum FA2303002034572, <pioneernrc.com>, Dismissal without prejudice
Nevertheless, as the Complaint appears to have been drafted and submitted by an in-house individual at Complainant’s company who may have very limited knowledge of the Policy, and taking into account the fact that Complainant is a publicly traded company whose shareholders and others may be misled or harmed if its website has indeed been compromised, the Panel has denied this case without prejudice thus allowing Complainant to consider refiling the case, perhaps by a professional who has knowledge of and experience with UDRP cases and standards.
AMUNDI ASSET MANAGEMENT v. Didier Bommier, CAC-UDRP-105591 (2023) <amundietf.info>, Dismissal without prejudice
As the domain name was registered just three weeks before the complaint was filed, the Respondent did not have any obligation to make any use of the domain name so quickly… As such, the Complaint fails, and the domain name shall remain with Respondent. Of course, this decision is without prejudice to Complainant’s right to bring a future action under the Policy, in the event the domain name is used in bad faith.
Altarea v. alta rae, alta rae, WIPO D2022-3706, <altrarae.shop>, Denied
The Complaint was filed just nine days after the registration of the disputed domain name, and thus it is not unnatural that the disputed domain name still resolved to an inactive page at the filing of the Complaint. The Respondent’s bad faith registration and use of the disputed domain name is not established in this case by the fact that the webpage of the disputed domain name is inactive, and the disputed domain name seems to be used for email forwarding purposes. If, however, the Complainant learns of infringing content that makes clear that its rights were being targeted by the Respondent, that may support grounds for a refiling.