A WIPO case decided today had some good language concerning the issue of “bad faith” for purposes of UDRP’s.
Although the facts of this particular case will be of little interest to domain holders as it involved parties that had a history together, the decision contains language helpful to domain holders.
When I comes to bad faith there is a divergence between panelists, which of course is not helpful since its one of the basic elements and findings on which these decisions turn.
One set of panelist’s apply the words of the policy as they are written, which is that bad faith must exist at the time of registration, while other panelist’s find that bad faith at any time during the period the domain is held is sufficient to allow a domain transfer.
In this case the panelist said:
“The key point in this decision rests on the words “at the time of the registration”. ”
That is, the issue is whether bad faith at the time of registration can be inferred from subsequent conduct. ”
“Unless there is clear evidence that at the time of registration the respondent intended to exceed his brief, the Panel does not see how a finding of registration in bad faith can be squared with the Policy’s plain language.”
“Stated conversely, the Panel does not believe that a respondent should be presumed to have registered a domain name in bad faith solely because he subsequently used the domain name in bad faith.”
Now if we can only get all panels to go by the clear language of the policy instead of making it up as they go.