Gripe site owner prevails in UDRP action brought by company that allegedly rescinded offer to hire him

In the case of Capgemini North America, Inc. v. Randel Tomina, an NAF Panel denied the Complainant’s efforts to have the domain name <capgeminirecruiting.com> transferred because the Complainant failed to sustain its burden of establishing that the Respondent had no rights or legitimate interests in the disputed domain name, and because the disputed domain name was not registered and was not being used in bad faith.

The Complainant is an international provider of consulting, technology and outsourcing services and local professional services. The Respondent claims the Complainant rescinded an offer to hire him, and in September 2015 registered the disputed domain name for purposes of (according to the Respondent) warning others about the Complainant’s employment practices.

The Panel found that the Complainant failed on the second UDRP element — rights or legitimate interests — because the Respondent’s website qualified as a bona fide criticism site. There was no evidence, and the Complainant did not assert, that the Respondent’s site was a pretext for cybersquatting. For example, there was no evidence of an intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. And the site indicated that it was “created to expose [the Complainant], a company that caused [the Respondent] over $100,000 in loses [sic].” Other language that had appeared on the site in the past included “Obviously, [the Respondent is] not affiliated with [the Complainant]. This is just an exposé site regarding [the Respondent’s] experience with [the Complainant] rescinding a job offer, effectively terminating [the Respondent’s] employment, without cause. If you’re looking for [the Complainant] you are in the wrong spot!”

Further the panel found that the Respondent did not register and use the disputed domain name in bad faith. The Panel found that the disputed domain name resolved to a legitimate gripe site. The Panel declined to hold that the Respondent registered the disputed domain name “primarily” for the purpose of disrupting the business of a “competitor,” under paragraph 4(b)(iii) of the UDRP. The facts did not support a determination that the Respondent competed with the Complainant in the business of providing consulting services and the evidence indicated that Respondent’s primary purpose in registering the disputed domain name was to inform third parties of his experience with the Complainant in connection with seeking employment. While Complainant contended that the Respondent registered and was using the domain name for leverage in obtaining a favorable settlement in his employment dispute with the Complainant, the site itself did not contain any mention that the Respondent was seeking compensation for his alleged losses and, as noted by the Complainant, Respondent, to date, had not filed a lawsuit in court.

Capgemini North America, Inc. v. Randel Tomina, NAF Claim Number FA1601001658191 (April 11, 2016)


Evan_BrownAbout the Author: Evan Brown is a 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 more information about general internet law.