Cognitive Bias

Our own Francois Carrillo lost a UDRP for the domain ADO(.)com and has been ordered to transfer it to the Mexican bus company who operates on ADO.com.mx.

We can hear the outcry across the domaining world – give the panellists the dunce award; how could they come up with such a bad decision; why are they so gullible, can they not see that domaining is a legitimate and accepted business model. What were they thinking, it makes no sense.

Well let me make sense of it: it is wrong to think the panel had a bad day or that they didn’t think it through or they are stupid. It is the complete opposite because to apply the policy rules and then to come to their verdict, they had to perform intellectual gymnastics. Later I will explain why they went to such lengths.

Firstly its worth understanding how the panel managed to jump through the hoops of the policy rules to give legitimacy to their decision.

Firstly they didn’t consider on its own if Francois had Rights or Legitimate interests in the domain name, instead the panel very cleverly considered this together with the element of ‘registered and used in bad faith’ because as they pointed out where there were clear indicia of bad faith and if proved Francois had no rights or legitimate interest. Just how clever was that take one of the 3 elements the complainant had to prove to win out of the equation, just prove bad faith and no rights and legitimate use will follow. And so they did…..

How did they show registered and used in bad faith? by ignoring Francois demonstration that his initial interest was to develop an Ads online software, which the domain name ADO would be perfect for. The panel said it was only interested in the present use and it was up for sale with a logo similar to the complainant. Are you messing with my brain, look at these logos the only similarity is the letters.

ADO similar????

So thats the panel proving that the name was being used in bad faith but how to prove registered in bad faith. Wait for it, it takes a leap of faith to prove this.  Francois purchased the name from the original owner who claimed he was making $7,500 in parking revenue and wanted more than the wholesale value of a 3L.com. That was all our panellists needed to make the jumps to conclude Francois registered in bad faith. How you shout. Well, the previous owner had PPC ads related to ticket sales in Mexico and ads for transportation. And because of that, they believed a professional domainer such as Francois must have known of the trademark when he registered the name and if not he was guilty of willful blindness. Now we just have to make the final leap – follow the logic here if you can. ADO(.)com was up for sale by Francois for $500,000 and that the panel said was far in excess of the values Francios applied to his other domains on catchy(.)com. The excessive value the panel concluded was because Francois was trying to capitalise on the goodwill of the complainants trademark.

And there you have it, a very clever way to interpret and apply the UDRP policy to get the outcome you wanted.

And I say this very seriously the panellists wanted a guilty outcome and it should always be considered when defending a UDRP; domainers are at a disadvantage because panellists are Lawyers and most despise domainers because of the way they make money. The idea of someone making a lot of money without going through University, years of study, years of work experience similar to them makes you a fraud and charlatan. All the panel was doing in this case was trying to see what they believed, that Francois was a domain squatter and by god were they going to bend the rules to prove their own cognitive bias.

I have been in UDRPs and have always defended them from the point of view I have to challenge the panels inherent bias head on and give them no wriggle room and this case reaffirms that.

Warren Buffet