Because, prior to any notification of a dispute, Ultimate Search was using the domain name pwc.com to provide links relevant to personal watercraft. In fact, if you put PWC into most PPC search engines, the overwhelming results you get are for personal watercraft and accessories, because pwc is the generic acronym for personal watercraft.
http://www.jetski.com/section.cfm?id=67
Actually using a domain name for a legitimate purpose, or having made documented preparations to use a domain name for that purpose, prior to notification of a dispute is an important factor in determining whether someone had a good faith use in mind, or if they are simply making up some post-hoc rationalization. So, if you are looking for a difference, tell me what was the nhn.com domain name being used for before these guys received any indication that someone might make a trademark claim?
There are innumerable areas of legal disputes where one's state of mind matters. No, there are no mind reading machines. So what you do is you look at the evidence and you make a decision about what was or was not the most likely explanation. In the NHN case, the respondent was specifically asked to provide some evidence supporting their story. The request itself indicates the panel was perfectly ready to consider such evidence and to find in the respondent's favor. The respondent refused. So, what inference do you draw from that? In civil disputes, the standard is not "without any doubt" but is "more likely than not". That is precisely why the UDRP refers to use or preparations "before notification of a dispute". Anybody can come up with some kind of rationalization after the fact, but evidence of what you were doing prior to someone making a claim is a much more reliable indication of what you had in mind.
"I said "but not in my country because i TMed it first"."
I know. In that case you would win. In fact, I challenged Garry Anderson to guess whether or not most contested two or three letter UDRP's are won by the complainant or the respondent. He decided not to take a proposition on that question because he doesn't want to pay me again, even though I still haven't counted.
"You see, you are changing sides as wind blows"
Not at all. When you are using a generic term for its dictionary purpose prior to any notice of a dispute, such as using pwc for personal watercraft, it is a very different situation from the shifting explanations given for NHN.
And, yes, presuming knowledge is a risky endeavor. Interestingly, the panel had a Korean member, and the respondent was also Korean. In Korea, NHN is a more popular portal than Yahoo! (
http://www.stargeek.com/item/26198.html), so you tell me... Is it "more likely than not" that someone who obviously is engaged in an internet-oriented business in the US has heard of Yahoo! ? Come on... that's a no-brainer.
That is also why I brought up bbc.org. The UK BBC sent them a letter, got an answer, realized it was apparent their use was legitimate, and went on their merry way. Now, if the domain name bbc.org was not being used for anything in particular, and the registrant had made up stuff about $250K purchase offers, and then when confronted with the TM claim said, "Oh, well, we were really planning all along to use it for Big Brown Cows" but didn't respond to a specific request from a UDRP panel for evidence of that assertion... what would you think was "more likely than not"?