Rule 15(e) of the Rules of the Policy which authorizes a finding of reverse domain name hijacking is symmetrical with paragraph 4(a)(iii) of the Policy. Either party can be found in bad faith. The difference of course is in the consequences. The respondent forfeits the disputed domain name while the complainant is merely chided. There has been considerable criticism aimed at some panelists for their myopia is refusing to find against complainants even where complainant’s bad faith is manifest. A guideline for reverse domain name hijacking with criticism was offered by the Hon. Neil Brown, Q.C. in a brief essay that appeared in a Domain Name Wire blog on July 13, 2009.
A holder of a later acquired trademark has no legal basis for capturing an earlier registered domain name, yet avoids sanction. The most recent example is the decision in CP Masters B.V. v. RareNames, WebReg, D2009-1673(WIPO February 11, 2010) in which the Panel essentially applied his own (subjective) standard, denying an order of RDNH because, well to put it charitably, it does have a trademark; that is, it has prevailed on the jurisdictional requirement. The Panel’s reason for giving the Complainant (incidentally, represented by counsel) a pass is, well, ludicrous, clearly rejecting Mr. Brown’s strictures (or perhaps never have read them): “The very obviousness of the gap in the Complainant’s case [that it had no trademark right when the domain name was registered] suggests more strongly that the Complainant seriously misunderstood what was required for a finding in paragraph 4(a)(iii) of the Policy, rather than that the Complaint was brought dishonestly.” Translated, this means according to that panelist that not understanding the law or being ignorant of it is sufficient to avoid sanction.
Compare this with a decision from the first full year of the UDRP to see how the Rule should properly be applied. The Panel in Smart Design LLC v. Carolyn Hughes, D2000-0993 (WIPO October 18, 2000) put it this way:
Putting this in the kindest light that the Panel can, the Panel believes that in its eagerness to obtain the Domain Name the Complainant lost all sense of proportion. It took on the guise of a third rate barrack room lawyer and advanced arguments that were tortuously artificial in the extreme, reckless both as to as to the justification for making those arguments and the seriousness of the overall charge against the Respondent, who was manifestly no cybersquatter. This Complaint was a clear abuse of the Policy designed to deprive the Respondent of her domain name. The allegations of bad faith were without substance and should never have been made. (Emphasis added).