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Credibility as a Factor in Determining Parties’ Rights to a Disputed Domain Name

Although UDRP complaints are resolved solely on papers without benefit of discovery and with no right of confrontation it would be a mistake to discount credibility as a factor in determining parties’ rights to a disputed domain name. Parties make their appearances in submissions and can be judged for their candor or lack of it, the plausibility of their arguments, their statements or silences and by the evidence they produce or suppress. In DigiPoS Store Solutions v. Hiname Inc., D2010-0297 (WIPO April 16, 2010), the Respondent pleaded good faith registration which, however, was belied by its conduct.

The persona a party projects can be critical to how it is perceived by the Panel and ultimately to its success or failure in the proceeding. Either party can fail on credibility. To take a few examples. In Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd., FA0501000406512 (Nat. Arb. Forum March 9, 2005) the Panel stated this point bluntly “Complainant’s allegations in the Complaint are so conclusory, and so obviously unsupported by evidence, that it calls Complainant’s other assertions into question. Parties in UDRP proceedings are well advised not to advance arguments that are so patently without merit that it undermines their credibility.” Obversely, in Hurriyet Gazetecilik Ve Matbaacilik A.S. v. INFOMED, D2008-0127 (WIPO March 30, 2008) (<hurriyet.net>, Turkish parties) the Respondent made a good impression. In Scarlett Johansson v. Tristan Dare, D2008-1650 (WIPO December 16, 2008) the Respondent’s contemptuous attitude – his disdain for “the entire concept of bad faith a concept which he described in his Response as ‘pragmatically speaking, beside the point, since bad faith is an arbitrary qualitative identifier that is neither culturally, neither structurally universally applicable’ ” – did “nothing to inspire confidence in the credibility of the Response.” Some explanations are so highly dubious as to stretch credulity. In H-D Michigan LLC v. Paul Hagerty, FA0906001269352 (Nat. Arb. Forum August 24, 2009) “Respondent argues that its selection of the domain name <h-d-roadhouse.com> reflects the fact that his business is called ‘Hagerty’s Drivin Roadhouse.’ However, Respondent has not presented evidence in support of this contention, even after being provided a second opportunity to do so by Interlocutory Order.”

In DigiPoS, prior to the filing of the complaint the Respondent demanded an excessive price for the domain name and shortly after changed content on the website. The Panel dismissed the Respondent’s contentions that it “did not really” make such a demand and in “any event it was in response to approaches from the Complainant” as not meriting “any serious consideration.” On the issue of changing content the Panel noted that “[w]hilst the Respondent is at complete liberty to establish a website offering IPO related advice, it has failed to furnish any evidence to suggest it has the right to resolve the disputed domain name, comprising the Trade Marks, to such a website.” Sanitizing the record after notice does not cure but supports the complainant’s contention that the domain name violates paragraph 4(b)(iv) of the Policy. Sansum Clinic v. Sansumclinic.com / c/o Whois Identity Shield, D2008-1008(WIPO August 28, 2008).

Gerald M. Levine <udrpcommentaries.com>

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