Panelists hold divergent views on several legal principles as they apply to domain names and for this reason to whom the Provider assigns the matter can be determinative to the outcome of the proceedings. This is abundantly clear in the line of cases discussed in recent Notes that support the view that bad faith registration can be found retroactively despite evidence to the contrary. The theory is that a respondent has a continuing obligation under paragraph 2 of the Policy not to “infringe upon or otherwise violate the rights of any third party.” This synchronic approach to the interpretation of text flattens history by making the past a part of a continuing present. However, the UDRP expressly separates the past from the present. On this divergence of views the difference is serious because it can result in the respondent forfeiting the domain name.

There is also divergence among panelists when it comes to ruling on a complainant’s bad faith in filing a complaint which is authorized by the UDRP. It is less serious because it does not affect the respondent’s right to the domain name, yet by refusing to grant the declaration it withholds a remedy to which a respondent is entitled. It is true that the respondent has the burden of proof, but there are panelists who refuse to stain the complainant despite the Policy requirements under any circumstances. The Panel’s rejection in Mosaic International, LLC v. PZ — No Auction, FA1002001307578 (Nat. Arb. Forum April 7, 2010) fails to provide any reasoned decision under factual circumstances that warrant it.

Some panelists in this school excuse themselves by expressing the belief that the declaration of bad faith is discretionary. There is no support for this in the Policy. As applied to a Panel the word “discretion” appears in two ICANN rules: it has discretion to 1) request further statements or documents (Rule 12) and 2) decide whether to suspend or terminate the administrative hearing (Rule 18). “Discretion” does not appear in connection with the provision that addresses a complainant’s bad faith. Rather, Rule 15(e) uses “shall” in granting the remedy in favor of the respondent. In law “shall” is understood to be a command:

[I]f after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.

Rule 1 defines Reverse Domain Name Hijacking as “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name.” The facts in Mosaic are not on the border. The Respondent registered the domain name in 1995; the Complainant made first use of the term MIA in 2004. The fact that the Respondent offered to sell the domain name “for valuable consideration in excess of [its] documented out-of-pocket costs directly related to the domain name” is irrelevant in a diachronic construction of the Policy because for her the domain name is an asset. To exponents of a synchronic construction who see the past as the beginning of the present rather than its own period, the advertised offer to sell the domain name may fall afoul of the continuing obligation under paragraph 2 and expose her to a finding of retroactive bad faith. Perhaps the Mosaic Panel refused to file a declaration against the Complainant not because he was lazy (as one commentator noted) but because he secretly admires the synchronic construction of the Policy while uncomfortable in applying it.

If this is the case, then the Respondent was fortunate. Imagine if the National Arbitration Forum had assigned a supporter of synchronism. He (or she) would have found the Respondent guilty as charged even though the act of registration had occurred 9 years before the Complainant first commenced using the term in the marketplace. In that case the Panel did the Respondent a good turn by finding in her favor and she should not complain. After all, the Complainant did demonstrate rights in the present and since the present includes the past its rights must be deemed retroactive even before it had an existence. In this light, should the Panel not rather be praised than blamed for not declaring the Complainant in bad faith?

Gerald M. Levine <udrpcommentaries.com>