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The National Arbitration Forum has been accused of pocketing money for a case that never happened.

The controversial domain name arbitrator has been criticised in the past for making arguable decisions in favour of trademark holders but in this case NAF is refusing to refund a $1250 fee paid by the respondent.

The case concerned Tobacco.com, owned by Michael Fischer. Mr Fischer received NAF notification of a complaint from a company calling itself Tobacco.com. The people behind Tobacco.com have attempted on several occasions to take advantage of the flawed UDRP (uniform dispute resolution policy) used by ICANN arbitrators by naming itself after a domain name and then applying for a trademark on that name.

The case should have been thrown out but stretched to numerous emails and legal notices. Tobacco.com chose to pay for only a single panellist to decide the case, however Mr Fischer wanted a three-panellist decision. Subsequently he was told by NAF he would have to pay it $1250 for the extra two judges. This he did.

However, when Tobacco.com dropped its complaint, Mr Fischer was expecting the $1250 fee back. It didn't arrive and when he called NAF, he was told he would not get any refund - even though the panel never sat.

Mr Fischer is not happy: "How can the NAF possibly 'justify' keeping my $1250 in monetary funds, if they will not employ them for the purpose for which they were tendered?," he told us. "I feel not only harassed by a frivolous and fraudulent UDRP case, but also cheated by the NAF itself! The $1250 was money to be paid to a three-member panel. If the panellists will not be receiving the $1250, then WHO THE HELL GETS IT?"

When his lawyer protested against NAF decision not to refund the fee, he was told it was justified since "the result is that your client gets to keep the name, which is the result you wanted to achieve."

We have protested loudly in the past that the way the current rules stand, innocent domain name owners can be subject to large legal costs to defend something that they have every right to. [A call to reform the UDRP rules was ignored by ICANN at its last meeting.] ®

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