Respondent’s default to some extent lightens complainant’s burden to prove knowledge and intent while its appearance and rebuttal testimony heightens it. Rule 15(a) provides that “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Just as silence undercuts persuasion, because inferences will be drawn from complainant’s plausible facts, so too does noise. Noise is the assertion of inferences drawn from conclusory (non factual or speculative) statements (“It is obvious that….”; “It is indisputable that….”).
A couple of recent examples: Paul Hartmann AG v. Patrick Schoutens, D2012-1601 (WIPO October 11, 2012) and JPI Commercial, LLP v. Alan Capalditallon, FA1208001458587 (Nat. Arb. Forum September 25, 2012). In Paul Hartmann the Complainant contended that Respondent “must have been aware of Complainant’s rights” in its trademark,” but the Complainant is resident in Germany and the Respondent in South Africa and Complainant offers no evidence of Respondent’s knowledge or intent. (Why is it obvious?) The Panel notes that
The Complainant has further not submitted any other proof showing that the Respondent should or could have been aware of the Complainant’s trademark for other reasons, i.e., that it had been specifically aware of the Complainant’s registration.
In JPI Commercial, “Complainant asserts that Respondent had constructive notice of Complainant’s mark as a result of Complainant’s US and EU trademark registrations.” The UDRP does not accept constructive notice as knowledge of a complainant’s trademark. It requires proof of actual knowledge, or such an awareness of the trademark that is tantamount to knowledge. Again, in Paul Hartmann there was assertion but no evidence of knowledge.
To be sure, a respondent’s intent to take advantage of the trademark’s reputation is essentially hidden from view. It can only be proved by inference based on unassailable facts: A + B = C. In contrast, use is not hidden. The use (or non-use) to which a domain name is put is an unassailable fact. In JPI Commercial, the Respondent’s website on two occasions “contained revenue-generating click-through links and a picture of a medicine bottle and pills, along with a link advertising the domain name for sale.” Complainant, a pharmaceutical company offered screenshots as evidence of knowledge. However, upon receipt of a demand letter Respondent explained that “he removed the domain name from Sedo.com as a courtesy to Complainant.” Without proof of intent, “a picture of a medicine bottle and pills” is not probative of bad faith registration or use.
Missing from Complainant’s submission in JPI Commercial is the first part of the evidence formula. Whenever the A + B statements are not facts they cannot = C. The Panel held that “the fact that a third-party with whom Respondent contracted made a connection between the domain name and Complainant’s mark in late 2010 through mid-2011 is not particularly probative of Respondent’s intentions when he registered the domain name more than four years earlier.” This is as much as to say that the Complainant’s evidence is thin:
With little or no evidence on either side, the Panel is left to speculate as to Respondent’s motives upon registering the disputed domain name. The similarity to Complainant’s mark is substantial, but the mark is not sufficiently famous or distinctive to lead the Panel to reject Respondent’s explanation as entirely implausible, nor to support an inference that Respondent must have had Complainant’s mark in mind upon registering the domain name.
A complaint should not be filed until there are sufficient unassailable facts to support the inference the complainant is asking the Panel to draw. The Panel in JPI Commercial continued that he was “therefore left to decide this issue based upon the burden of proof.” On this analysis he “finds that Complainant has failed to meet its burden of showing that Respondent registered and used the disputed domain name in bad faith.” What is clear from these cases is that a “maybe” violation is insufficient if respondent appears and offers a plausible explanation for its choice of domain name.