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Exceptional Circumstances in Request to Extend Time to Respond to Complaint

UDRP complaints must be answered within 20 days [Rule (5a)] or by an extended date on proof of exceptional circumstances [Rule 5(d)]. The Rules were amended effective March 1, 2010 to permit service of papers electronically. Prior to the amendment respondents were technically in default if their electronic service was timely but their hard copy by postal service or overnight courier was not. The consensus excused this type of default on the theory that cases should be decided on their merits.

This tolerance was not extended to untimely responses for which the consensus is less forgiving. The Panel in Mobile Communication Service Inc. v. WebReg, RN, D2005-1304 (WIPO February 24, 2006) held that in order for a late response to be considered the circumstances for its lateness must be “exceptional”, hewing to the literal prescription in Paragraph 5(d) of the Rules of the Policy. “An ‘exceptional’ case, by its very nature” (the Panel held) “must be the exception, not the rule,” (emphasis in original). Moreover, according to the Mobile Communication Panel, the decision should not be influenced by the possibility that the late response might have dictated a contrary result.”

A third group of untimely responding respondents is the respondent who asks for more time. This is governed by Rule 5(d) which reads, “At the request of the Respondent, the Provider may, in exceptional cases, extend the period of time for the filing of the response.” There is little if any tolerance for respondents who request an extension as though it is permitted as of right. This is illustrated in World Wrestling Entertainment Inc. v. Israel Joffe, D2010-0860 (WIPO July 1, 2010). A request to the Provider cannot succeed without the respondent providing evidence of exceptional circumstances. In the absence of evidence “it appears to be yet another attempt by a respondent to keep its domain names a bit longer, for whatever reason.”

Respondents genuinely needing an extension must act promptly. The World Wrestling Panel Respondent suggests that “it is “generally desirable for any respondent seeking an extension first to apply to the complainant or its representative before approaching the Center for an extension.” (The second sentence of Rule 5(d) reads: “The period may also be extended by written stipulation between the Parties, provided the stipulation is approved by the Provider.”)

The Respondent in World Wrestling waited two weeks before making a request to the Provider and in its “communication to the Center Respondent gave no reason for the requested extension.” It later stated in its attenuated response that his “lawyer’s wife [was] having a baby.” The Complainant objected to the extension, noting that it “saw nothing ‘exceptional’ about this case.” The Panel agreed

given the nature of the Response actually filed, the twenty days provided by the Rules constituted ample time to address the merits of the Complaint. Rather than an extension based upon legitimate need, this appears to be yet another attempt by a respondent to keep its domain names a bit longer, for whatever reason. This Panel and other panels have condemned this respondent tactic in the past.

The Respondent’s argument rested on a misinterpretation (really a lack of understanding) of the law as pronounced in the ACPA, to which the Panel noted that this “single contention” is “defeated” by the language of paragraph 4(b) of the Policy.” Neither the ACPA nor the Policy limits a finding of abusive registration to proof of the registrant’s intention to sell the disputed domain name to the trademark holder. Offering to sell a domain name to the trademark holder is one of several nonexclusive grounds for bad faith.

Levine Samuel, LLP <researchtheworld.com>
Gerald M. Levine <udrpcommentaries.com>
E-Mail gmlevine@researchtheworld.com

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