The complainant certifies in commencing the UDRP proceeding, “that the information contained in th[e] Complaint is to the best of [its] knowledge complete and accurate [and] that th[e] Complaint is not being presented for any improper purpose, such as to harass [the respondent].” Paragraph 3(b)(xiv) of the Rules of the Policy. Respondent has the burden of proving that the “Complaint is … being presented for any improper purpose.” It has to establish the improper purpose affirmatively rather than negatively, that is it requires proof of an intentional act or conduct so lacking in circumspection and discretion that no other inference can be drawn except that complainant intended “to deprive a registered domain-name holder of a domain name.” However, “mere lack of success of the complaint is not itself sufficient for a finding of Reverse Domain Name Hijacking.” WIPO Overview paragraph 4.17. The bar is high.
Some panelists demand from the respondent a greater certitude of complainant’s intention: it should be “malice aforethought.” Smart Design LLC v. Carolyn Hughes, D2000-0993 (WIPO October 18, 2000). Less demanding is “reckless disregard.” Where the “Complainant must have known it could not demonstrate bad faith registration and use” its commencement of the administrative proceedings was abusive. Mess Enterprises v. Scott Enterprises, Ltd., D2004-0964 (WIPO January 25, 2005) If, on its face a “complaint includes facts that demonstrate no likelihood of success, the respondent is entitled to a finding of Reverse Domain Name Hijacking.” Urban Logic, citing 1 Model Management, LLC. v. L.A.S. Inc., Latifa Aadess, 1 Models LLC, D2008-1173 (WIPO October 24, 2008).
In either case, the evidence should be “utterly clear,” Great American Insurance Company v. Ron Hamilton, FA109753 (Nat. Arb. Forum October 14, 2002), but the standard is slippery. Expressed in another way: “One is reluctant to make a finding of Reverse Domain Name Hijacking except in the clearest of cases.” Libertad Servicios Financieros, S.A. de C.V. S.F.P. v. Telepathy, Inc., D2011-1635 (WIPO January 10, 2012) (Concurring Panel with different view in assessing RDNH). In the not so clear cases the complainant is given the benefit of the doubt. This appears to be the view of the Presiding Panel in Libertad:
The Panel does not find that the Complainant’s arguments under a required element of the Policy, namely the Respondent’s lack of rights or legitimate interests under paragraph 4(a)(ii) of the Policy, failed by such an obvious margin such as to indicate that the Complainant must have appreciated this at the time of filing the Complaint.
In Wave59 Technologies Int’l Inc. v. VolumeDomains.com, FA1110001413550 (Nat. Arb. Forum November 30, 2011) the Complainant was undone by its changing offer of proof:
Complainant knew or should have known, based upon the facts known to it when it filed the Complaint in this proceeding, that it could not prove bad faith registration. Upon being called out for the obvious chronological deficiency in its case by the Response, Complainant attempted to change the facts, contradicting the evidence it had previously submitted. The Panel considers these circumstances sufficient to support a finding that the Complaint was brought in bad faith, in an attempt at reverse domain name hijacking.
The “clearest of cases” is a two punch process. The respondent has the burden of proof. Any deficiency is marked in favor of the complainant. But the complainant can undercut its own good faith by contradicting itself as Complainant did in Wave59. A complainant’s offer of proof in support of transfer (even if it loses) must be credible. The less credible the greater the likelihood that its conduct supports respondent’s demand for RDNH as was the case with Wave59. Where the evidence appears to be equipoise, there is reason to step back from censure.
Stepping back from censure is the point emphasized by the reluctant Panel in Libertad. On the one hand this and on the other hand that: “very concerned by the apparent lack of candour on the part of the Complainant” but recognizes that “Complainant was probably entitled to be concerned at the potential confusion that might be engendered in the minds of Internet users.” So, we get a whimper rather than a bang: “complainants should always carefully weigh these considerations when deciding whether to file a complaint, as the power to make a finding of Reverse Domain Name Hijacking is always available for panels to use in appropriate cases.” This really puts a premium on the evidence offered by the respondent. It is not enough for the respondent to ask for censure, and if that is all there is complainant wins unless it totally undercuts its offer of proof.