In what turned out to be the right decision, the National Arbitration Forum ruled Media Rain LLC engaged in Reverse Domain Hijacking in their attempt to win the generic name Rain.com. They had claimed that Verio was not using it for any business activity, however that panel noted:
that passive holding of a domain name, without more, does not establish bad faith under Policy ¶ 4(a)(iii). Moreover, the evidence before the Panel shows use of the domain name since 1997 in connection with webhosting services. The Panel approves what was said in the case of e-Duction, Inc. v. Zuccarini WIPO Case No. D2000-1369:
“In the ordinary case, a business adopting a new mark in today’s world must take the Internet as it finds it. If someone else has already registered a domain name identical or confusingly similar to the proposed new mark, that domain name will be unavailable to the business unless it negotiates a transfer. This is true even if the registrant is in other respects behaving badly, as Respondent is in this case.
On this record, the Panel finds that Respondent was not aware of Complainant’s not-yet extant mark at the time he registered the domain name. Accordingly, Respondent’s registration of the domain name can not have been in bad faith.”
This Panel finds that when Respondent registered the domain name, Complainant had no trade mark rights. The Panel finds that Complainant was not in existence at that time. There is no evidence to show earlier use of the trademark by a predecessor-in-interest to Complainant. In short, there is no suggestion in the evidence before the Panel that Complainant or its trademark could have been within Respondent’s contemplation at the time the disputed domain name was registered.
Accordingly, Panel finds that registration of the domain name was not in bad faith within the meaning of the Policy even if subsequent use of the domain name could be said to have been in bad faith, a matter on which Panel is not required to make a finding.”
The Panel finds that Complainant has failed to establish what is required of it under Policy.
Along with the decision, the Verio asked the panel to find Reverse Hijacking. Reverse Hikjacking means that the party starting the UDRP is “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name.” The panel this to be so.