Hong Kong Exchanges and Clearing (HKEX) was established on 8 July 1999. This company owns many domain names, the oldest of which date back to 3 January 2000 (<hkex.com.hk>) and 29 January 2004 (<hkex.hk>). However, HKEX had apparently not seen fit to register <hkex.com>, <hkex.net>, and <hkex.org>. As a result, these domains were reserved respectively on 6 October 1999, 6 October 2001, and 23 March 2002. Finally, note that only the domain name <hkex.com> was used. Let’s recap:
In 2021, twenty years later, HKEX filed three UDRP complaints with the Hong Kong International Arbitration Center (HKIAC), which were consolidated. The success of a UDRP complaint is known to depend, in part, on the complaint’s ability to prove that the domain name was being used in bad faith. To this end, HKEX produced a chronology of the use of the domain name <hkex.com>, according to which it appears that the latter had been used during the year 2001 (and only during this year) for a commercial links page, including references to HKEX (in Chinese). Subsequently, no mention of HKEX could be found. In these circumstances, the question of the limitation period has been raised. In the UDRP procedure, the rule of principle is that there is no limitation period (see not. UDRP: pabloescobar.com, transferred 20 years after its registration, iptwins.com, 2019-10-16; UDRP: stevejobs.com, transferred 20 years after registration, iptwins.com, 2019-12-20; Thesun.com: “the sun shines for everyone”, iptwins.com, 2019-05-12; UDRP: transfer of Mandela.org to the guardians of Nelson Mandela’s memory, iptwins.com, 2019-07-27), unlike the Chinese cnDRP which sets the deadline at three years (see Article 2 of the cnDRP: the reaction time of brand owners, iptwins.com, 2020-12-03).
In this case, the panel considered that “a delay of over 22 years in bringing a Complaint where the only possible evidence of use in bad faith dates back 20 years is too long for the Complainant to rely on that use evidence of alleged bad faith use” (HKIAC, HK-2101563-HK-2101564-HK-2101565, Hong Kong Exchanges and Clearing Limited v. Time cowork ltd./ web master, <hkex.com>, < hkex.net> and <hkex.org>, denied, 5 January 2022, panelists: Shahla Ali (pres.), Douglas Clark, and Neil Brown).
In conclusion, regardless of the date of the UDRP complaint, it remains admissible. However, the chronology of the facts is of paramount importance. Time erodes the strength of the evidence and arguments to the point that the proof of the absence of legitimate interest and the existence of bad faith is made more difficult. Therefore, it was necessary to initiate a UDRP procedure in 2001, not in 2021. But still, it was necessary that the HKEX company was informed of a change in the content of the page or site designated by the disputed domain name. However, at the time, monitoring tools were in their infancy. Nowadays, reliable surveillance technologies make it possible to detect domain names of an abusive or potentially abusive nature and, in the second hypothesis, to scrutinize the use of said domain name daily.
