As there have already been UDRP proceedings between the same parties in relation to the Disputed domain name, the Panel first considered whether it can hear the case on merits.
The Panel concludes that it cannot.
There is a legal principle applicable in majority (if not all) jurisdictions in the world that once a case is finally decided, it cannot be heard again, save for rare and exceptional circumstances (such as new facts or evidence which the parties could not assert in the original case).
This principle also applies to UDRP proceedings. According to WIPO Panel Views on Selected UDRP Questions, Third Edition, Section 4.18, the following consensus view has been established on re-filed cases:
"Panels have accepted refiled complaints only in highly limited circumstances such as (i) when the complainant establishes that legally relevant developments have occurred since the original UDRP decision, (ii) a breach of natural justice or of due process has objectively occurred, (iii) where serious misconduct in the original case (such as perjured evidence) that influenced the outcome is subsequently identified, (iv) where new material evidence that was reasonably unavailable to the complainant during the original case is presented, or (v) where the case has previously been decided (including termination orders) expressly on a “without prejudice” basis."
In the refiling itself, a complainant must clearly indicate the grounds it believes would justify acceptance of the refiled complaint."
From the above it clearly ensues, that the Panel in UDRP proceedings can only hear a re-filed case under exceptional circumstances and such circumstances must clearly be identified and explained by the Complainant in its Complaint. The Panel in the present case fully adheres to the above established and reasonable principles.
In this case, the Complainant has not even mentioned the previous case in its Complaint and failed to identify any circumstance that would justify re-hearing of the case. The facts and arguments relied on by the Claimant are in principle the same as in CAC Case No. 101392.
Therefore, the Panel has no other choice than to reject the Complaint without reviewing the case on merits.
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