Res judicata barred subsequent UDRP proceeding

Domain Name: vrsim.com

Case: VRSim, Inc. v. John Makara, No. FA1003001314947 (Nat’l Arb. Forum April 30, 2010)

In 2008, Complainant brought a UDRP action over the same domain name at issue in this case – vrsim.com. Complainant lost that proceeding because it failed to establish any protectible trademark rights (it asserted only a registration on the Supplemental Register and did not argue it had any common law rights).

Complainant tried again in this case, but the Panel rejected the effort, holding that the action was barred under principles of res judicata.

The Panel looked to Creo Prods., Inc. v. Website in Dev., D2000-1490 (WIPO Jan. 19, 2001) to see that res judicata will bar subsequent complaints unless complainant meets a high burden.

Grove Broadcasting Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000) guided the Panel as to the factors derived from the common law that a panel should apply in evaluating whether this burden has been met:

  • serious misconduct
  • perjured testimony
  • new credible and material evidence
  • breach of natural justice

In this case, the Panel found that Complainant presented nothing that would support entertaining a second complaint. For that reason, the Panel denied relief to Complainant.

Photo courtesy CarbonNYC under this Creative Commons license.


Evan_BrownAbout the Author: Evan Brown is a Chicago technology and intellectual property attorney helping clients with a wide variety of issues, including domain name disputes under the UDRP. Call him at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, internetcases, for information about general internet law.