Comments from various Internet pens have expressed puzzlement over panelists rejecting claims for reverse domain name hijacking. Some panelists are simply reluctant, ever, to find against the complainant. For example, looking back over 4 years of decisions by the Panel in Rimbault v. Darko Enerprises Ltd., D2009-0757(WIPO August 21, 2009) either ruling solo or as a member of a 3-member Panel he has yet to find that any complainant abused the Policy. It may be, of course, that in every instance on the records before him the ruling was warranted. However, in Rimbault the ruling is hard to understand.

The dispositive fact is that <casino.org> was registered prior to the Complainant acquiring its trademark right. There is no suggestion in the record that the Respondent could possibly have known about the Complainant’s business plans because the Complainant had no “established trademark rights at the time the Respondent registered the disputed domain name.” The Complainant is in Europe and the Respondent is in the Caribbean. The Panel makes a point of no abusive pattern and no prior knowledge:

There is no evidence that the Respondent has engaged in an abusive pattern of registering domain names to prevent the Complainant or other trademark owners from reflecting their marks in corresponding domain names. Nor does the record demonstrate that the Respondent registered the disputed domain name primarily for the purpose of disrupting the Complainant’s business or selling the domain name to the Complainant, or to exploit the Complainant’s mark by creating a likelihood of confusion with the Respondent’s website.... In short, there is nothing in the record to establish that the Respondent registered the disputed domain name based on anything other than its attractive qualities as a generic or descriptive term.

The chronology in Rimbault was perfectly plain. The Complainant lost the race to the registrar. In fact, the Complainant offered to purchase the domain name but the counter-offer was too rich for its pocket book. The Panel also made a point of the first to register principle, stating that “[s]elling a domain name, even at an exorbitant price, is not per se prohibited by the Policy. Rather, selling of domain names is prohibited by the Policy only if the other elements of the Policy are also violated." But, there is nothing in the record that even suggests any violation. The general rule by consensus is set forth in the WIPO Overview at paragraph 3.1 which reads, “Normally speaking, when a domain name is registered before a trademark right is established, the registration of the domain name was not in bad faith because the registrant could not have contemplated the complainant’s non-existent right.” The Panel has not explained his reasoning. All we have is the same formula he uses for all the cases, “the Panel is not persuaded that the Complainant acted in bad faith in invoking the Policy in this case.”