0.11 Refiled Complaints
Complainants are obliged to disclose if they have previously filed a Complaint over the same domain name as a result of the certification requirements for a “complete and accurate” Complaint pursuant to Rule 3(b)(xiii) and also as a result of the requirement to disclose “any other legal proceedings” pursuant to Rule 3(b)(xi).
Since there is no official repository of ICANN UDRP decisions Providers will not generally flag a refiled Complaint to Panels nor are they obliged to. A particularly cautious Panel might check itself to see if the Complainant has previously filed if the Panel has reason to suspect, but generally a Panel will rely upon the Complainant’s duty of disclosure and the Respondent’s ability to point out a refiled Complaint in its Response.
Unless the refiled Complaint followed a dismissal without prejudice, a refiled Complaint is not permitted absent new evidence that could not have reasonably been obtained by the Complainant in the last proceeding. This is a very high threshold which should be strictly enforced in order to prevent Complainants from repeatedly bringing an unsuccessful Complaint at the expense of the Respondent. New evidence which could not have been previously discovered could for example, be evidence of a recent change in the use of a domain name. Complainants who refile a Complaint should fully explain why the refiled case should be allowed and explain why the new evidence was unavailable in the previous case.
Additional Information
Relevant Decisions
NOTINO EUROPE LTD v. rf fw, CAC-UDRP-106754 (2024), <notinok. shop>, Denied
Finally, the Panel considers that the Complainant: did not indicate the grounds allegedly justifying the refiling of the complaint, such as (i) legally relevant developments occurring since the original decision, (ii) a breach of natural justice or of due process, (iii) serious misconduct in the original case that influenced the outcome, or (iv) the new material evidence that was reasonably unavailable to the complainant during the original case…
Art4Now, Inc. v. Gerald Waggoner / The Waggoner Law Firm, Forum FA2312002074746, <bayouwear.com>, Denied
The Panel is not so convinced. Of the handful of exceptional circumstances identified by the WIPO Overview, it is only the issue of whether new and material evidence is presented that was previously unavailable to Complainant which arises for consideration. The majority of the “recently-discovered domain names” were extant before the Original Decision. Likewise, the decision of the Tennessee Supreme Court’s was published in 2023 before the Original Decision but, in any case, the matter concerned violation of legal professional conduct and lacks sufficient nexus to the creation of the disputed domain name. In terms of the criteria laid out in Ladd v. Marshall, the Panel finds that the new evidence could have been obtained with reasonable diligence and included in the first complaint and, in the case of the disciplinary ruling, also lacks sufficient materiality.
The Panel finds that Complainant has not met its burden of demonstrating that the re-filed case falls within the limited grounds on which re-filed cases should be entertained.
Amnack Limited t/a Doncaster Cables v. 刘青云 (liu qing yun), 唐卡斯特（广东）电缆科技有限公司 (tang ka si te guang dong dian lan ke ji you xian gong si), WIPO D2023-4852, <doncastercable.com>, Transfer
The Complainant filed its previous complaint regarding the disputed domain name without the benefit of legal representation. The previous panel concluded that the Complainant had not shown, to its satisfaction, that any of the three elements of paragraph 4(a) of the UDRP were fulfilled. However, the previous panel rejected the previous complaint expressly on a “without prejudice” basis
Wilson Sonsini Goodrich & Rosati v. matthew Jonas, Forum FA2309002060818, <wsgrllp-us.com> et. al., Transfer
The instant case is a refiling of the complaints against <wsgrllp-us.com> and <wsgr-uk.com>, initially filed in Wilson Sonsini Goodrich & Rosati v. matthew jonas / andrew jonnes, FA2308002056444 (Forum Aug. 30, 2023). In that case, the complaint against <wsgrllp-us.com> and <wsgr-uk.com> was dismissed without prejudice because the Panel found that there was insufficient evidence to demonstrate that all the disputed domain names were registered by the same person or entity.
According to paragraph 4.18 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), panels have accepted refiled complaints where the case has previously been decided expressly on a “without prejudice” basis.
Accordingly, the Panel accepts the instant refiled Complaint.
Veikkaus Oy v. Raketech Group Limited, CAC-UDRP-105201 (2023) <urheiluveikkaus.com>, Denied
In conclusion, for the reasons explained above, the Panel finds no exceptional circumstances occur to justify reconsideration of the Prior Complaint and as such cannot accept the Complaint in this refiled case. The Panel will therefore not discuss the merits of this Complaint.
Majid Al Futtaim Properties LLC v. LuLu Group / LuLu Group International, Forum FA2106001949322, <mallofoman.com>, 3-member, Denied
First, it is important to note that in the previous decision regarding the Disputed Domain Name, the Panel found that “the Complainant has failed to establish that the disputed domain name was registered in bad faith,” largely because the Disputed Domain Name was registered before Complainant filed its applications for the MALL OF OMAN Trademark. But the new development cited by Complainant (redirection of the Disputed Domain Name to another website) relates only to how the Disputed Domain Name is now being used – almost 14 years after registration of the Disputed Domain Name.. In the Panel’s view, this new development does not relate to the issue on which the previous panel decided the dispute (that the Disputed Domain Name was not registered in bad faith) and, therefore, cannot be relied upon as the basis for refiling. (Had the previous panel found that the Disputed Domain Name was not being used in bad faith – as opposed to not having been registered in bad faith – then the Panel here might find the change in use cited by Complainant to be relevant.)
Spase, Inc. v. Domain Admin / Mrs Jello, LLC, Forum FA2011001921922, <spase.com>, Denied, RDNH
As a result of the WIPO Case the Complainant must have been aware that the Domain Name could not have been registered in bad faith as the Complainant lacked the relevant rights in the SPASE name at the time of registration of the Domain Name. As such the Panel has no alternative but to hold that this Complaint is a case of Reverse Domain Name Hijacking.
Novartis AG v. Contact Privacy Inc. Customer 1246111874 / Andrew C. Sikula, Negotiation Matters Inc., WIPO D2020-1738 <novartispodcast.com>, Transfer
6.8 The Panel accepts that the change in the content of the website after the CAC Decision was published amounts to new material evidence. This new material is highly relevant to, and calls into question, the factual conclusions of the panel in the CAC Decision as to for what reasons the Domain Name was registered.
6.9 That is sufficient to justify this refiling. But the Panel is also concerned that there appears to have been a breach of natural justice which would also justify a refiling.
Digest Commentary
Further Reading
Entrepreneur takes a second stab at Spase.com in UDRP, Andrew Allemann, “DomainNameWire”, 2020