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Panelists Authorized to Draw Such Inferences As They Consider Appropriate

One can think of a record (the kind submitted in support of legal relief) as a combination of statements and silences. What a party omits in its submission can be equally as important as what it includes. Drawing inferences from silences is not a one-way street. Default in answering a complaint has consequences, even though silence in a UDRP proceeding is not an admission of abusive registration. So too for consequences is a complainant’s silence about facts over which it has control, when for example it claims an international reputation when the domain name was registered but fails to provide evidence of such, Viko Elektrik Ve Elektronik Endüstrisi Sanayi Ve Ticaret Anonim S,irketi v. UniqueBrandNames, D2010-1856 (WIPO January 26, 2011). Contentions alone are insufficient to prove or defend a case.

There are two rules covering silence. Paragraph 5(e) of the Rules of the Policy reads: “If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.” “Complaint” in this context is more than the complainant’s presentation of its formal charges; it must refer to the record as a whole. Paragraph 14(b) of the Rules applies to either party. It reads: “If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.” If a complainant does not present evidence of its reputation, the inference must be that it had none.

Ordinarily, because defaults in answering complaints are more common than complainant silences, most of the analysis is directed to respondents. Although a respondent is not obliged to participate in a domain name dispute, “if it were to fail to do so, it would be vulnerable to the inferences that flow naturally from a complainant’s not unreasonable assertions of fact,” MC Enterprises v. Mark Segal (Namegiant.com), D2005-1270 (WIPO January 27, 2006). There are two forms of allegation, facts verified by evidence and statements disguised as facts which are merely assertions. The Panel in Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000) dealt with this head on:

After considering Respondent’s February 16 e-mail, the Panel has concluded that it will not accord any weight to the facts alleged in it. That is because Respondent’s e-mail did not contain any certification that the information contained in the e-mail was, “to the best of Respondent’s knowledge complete and accurate.” Rule 5(b)(viii). Without the benefit of this certification, it is not appropriate to accept the factual assertions contained in the e-mail.

The Panel concluded that “[i]n the absence of a response [properly certified], it is appropriate to accept as true all allegations of the Complaint.” Accepting “as true all allegations of the Complaint” (emphasis on “all”) goes further than necessary. Credible assertions of fact may support bad faith “unless clearly contradicted by the evidence,” Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000). But, where the Respondent fails to contest the contentions and submits no evidence the Panel “is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant,” Talk City. Further, “[e]ven were the February 16, 2000 e-mail treated as an answer, it would not affect this decision … because, in addition to the absence of the required certification, Respondent’s e-mail made no attempt to respond directly to the allegations of the complaint.” Panels are charged with rendering their decisions “on the basis of the statements and documents submitted,” Rule 15(a).

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