(iii)You have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv)By using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
No evidence or claim has been put forward of breach of paragraphs 4(b)(i) – (iii). Nor on the facts does the Panel see that these have any application.
The Complainant alleges that the Respondent registered the disputed domain name in bad faith in order to “draw potential customers away from the Complainant’s own sites and entice them to the Respondent’s”. Presumably, this is an allegation that the Respondent’s conduct falls within paragraph 4(b)(iv) of the Policy.
The Complainant’s position seems inconsistent with the fact that from August 1998 until after the filing of the Complaint, the Complainant was obtaining a direct benefit from the Respondent’s use of the disputed domain name, and had actively encouraged this by:
(a)hosting a link to the Respondent’s website on its own website; and
(b)formally recognizing the Respondent’s success as an authorized reseller of the Complainant’s products.
In light of the evidence of the prior dealings and relationship between the Complainant and the Respondent, the Panel does not consider that there is any evidence at all that the Respondent has acted in bad faith.
The Panel also wishes to record that the Complainant failed to disclose any information regarding its prior dealings with the Respondent. This information was obviously highly material to the dispute. If a Response had not been filed, the Panel would have had an incomplete and distorted understanding of the events leading up to the filing of the Complaint.
Reverse Domain Name Hijacking
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." (See also Rule 15(e).) To prevail on such a claim, Respondent must show that Complainant knew of either the Respondent’s unassailable right or legitimate interest in the disputed domain name or the clear lack of bad faith registration and use, and nevertheless brought the Complaint in bad faith. See, e.g., Sydney Opera House Trust v Trilynx Pty. Ltd., WIPO Case No. D2000-1224, (October 31, 2000).
Further, when determining whether the Complainant brought the Complaint in bad faith, the Panel should consider both "malicious intent and recklessness or knowing disregard of the likelihood that the respondent possessed legitimate interests." Goldline International, Inc. v Gold Line, WIPO Case No. D2000-1151 (January 4, 2000) citing, Loblaws, Inc. v Presidentchoice.inc / Presidentchoice.com, Case Nos. Af-0170a to – 0170c (eResolution, June 7, 2000).