In the recent domain name dispute decision of VRSim, Inc. v. John Makara FA1314947 (Nat Arb. Forum April 30, 2010) a single member Panel was faced with a dispute over the domain www.vrsim.com. Complainant is a Connecticut based company who creates “innovative visual environments and displays for interactive simulations.” The maintain a website at www.vrsim.net. Respondent attempted to respond to the Complaint but was late in submitting the Response in the appropriate electronic format. The Panel rejected any consideration of the Response.
Despite not reviewing the information contained in the Response, the Panel did not seem to worry too much about the factual arguments, since there was a major procedural hurdle facing Complainant, namely Res Judicata. This domain and this Respondent have been decided already under a previous decision, VRSim, Inc. v. Makara, FA 1233521 (Nat. Arb. Forum Jan. 2, 2009). Interestingly, that prior decision was based on Complainant’s failure to establish it had protectable trademark rights, since the mark was registered on the Supplemental Register. Additionally, Complainant never produce evidence showing secondary meaning.
The Panel explained that in very limited circumstances a case can be re-filed and reviewed again.
Several criteria have been set forth for determining whether a complaint may be refilled. See Grove Broad Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000) (noting, and subsequently applying to the UDRP, the four common-law grounds for the rehearing or reconsideration of a previously filed decision as (1) serious misconduct on the part of a judge, juror, witness or lawyer; (2) perjured evidence having been offered to the court; (3) the discovery of credible and material evidence which could not have been reasonably foreseen or known at trial; or (4) a breach of natural justice).
The Panel found that Complainant failed to present anything to support the new case and barred it under the findings from the earlier case. For these reasons alone, the Panel DENIED the Complainant.