As the years pass and the number of (UDRP) Uniform Domain Name Dispute Resolution Policy arbitrations occur, more and more decisions are addressing reverse domain hijacking. Put simply, reverse domain hijacking occurs when a complainant uses the policy in bad faith to attempt to deprive a registered domain name holder of a domain name. It is typically the respondent that makes a request of the panel for a finding of reverse domain hijacking; although it is possible the panel may make such a finding on its own. Regardless, a panel must be satisfied that the complainant knew of the respondent's unassailable right or legitimate interest in the domain name where the clear lack of bad faith registration in use and nevertheless brought the complaint in bad faith; or that the complaint was brought in knowing disregard of the likelihood that the respondent possessed legitimate interest; or that the complainant knew it had no rights in the trademark or service mark in which is relied and nevertheless brought the complaint in bad faith. While there are an ever growing number of decisions by both the national arbitration forum and world intellectual property organization, there are still some uncertainty as relates to reverse domain hijacking.
While a finding of reverse domain hijacking does not necessarily allow the respondent to recover the resources it had to invest in defending the UDRP complaint, it is a finding that simply does not look good for a complainant. While the UDRP may not allow for recovery of attorney's fees or other filing fees for a respondent when a finding of reverse domain hijacking is made, other ccTLD (country-code top-level domain) dispute resolution providers may indeed allow for such recovery. Regardless, respondents are well served to make the request for reverse domain hijacking when they believe it exists. Doing so forces the complainant to explain its case further and also allows the panel the opportunity to understand whether or not this is truly a matter that should be subject to a UDRP .
Ultimately, a domain name attorney with experience in the UDRP can advise a complainant as to the strength or weakness of its case. Similarly, a domain name attorney can advise a respondent who is subject of a UDRP complaint of the likelihood of a successful defense and or finding of reverse domain hijacking. Reverse domain hijacking should not be an afterthought in today's domain name disputes.