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Role of Credibility in Assessing Claims and Defenses

In a number of UDRP cases decided this year several turned on the issue of credibility, sometimes involving “advocate’s hyperbole” and at other times outright misdescription of the website’s content. The Chancellor, Masters and Scholars of the University of Cambridge v. Kirkland Holdings LLC., D2015-1278 (WIPO October 5, 2015) (<cambridge.com>). In many of these cases complainants are represented by experienced attorneys, although it is clear they are less than familiar with UDRP requirements or are simply ignoring the evidentiary requirements. It is not enough to itemize a respondent’s conjectural sins in registering a domain name; there has to be some evidentiary support to pass the believability test.

In Cambridge, the three member Panel considered whether the “advocate’s” conduct warranted finding reverse domain name hijacking against its client for “seriously misdescrib[ing] to the Panel the content of the website maintained at the disputed domain name … [that] exceeds the bounds of advocate’s hyperbole.” The argument “raise[s] an unhealthy aroma that the Complainant brought this proceeding with an ulterior motive.” Strong condemnation though this is the Panel chose in its discretion not to make a finding of abuse. Instead, it cautioned Complainant (or perhaps more accurately, its advocate) in future to limit its invocation of the Policy to proper cases fully and fairly presented.”

As a general rule UDRP pleadings should allege facts that cannot reasonably be denied together with properly supported evidence as a basis for inferences a party suggests can fairly be drawn from them.

A further example that actually led to reverse domain name hijacking is iPayment, Inc. v. Domain Hostmaster, Customer ID: 83314393006017, Whois Privacy Services Pty Ltd / Kwangpyo Kim, Mediablue Inc., D2015-1014 (WIPO September 2, 2015). In this case the Panel came to the conclusion that “[t]he failure of the Complainant to disclose and explain its conduct is inexcusable.” The three member Panel was particularly critical that

Complainant ha[d] failed to disclose a number of material facts, including (1) its prior ownership and subsequent abandonment of the disputed domain name, (2) the eventual purchase of the domain name at auction by the Respondent; and 3) that the Complainant attempted to partially base its trademark rights on a cancelled registration. This non-disclosure has been compounded by the Complainant’s aggressive pleadings, which repeatedly characterize the Respondent’s conduct in a manner which is not consistent with the actual circumstances at hand.

The Panel concluded that this “conduct not only ‘warrants dismissal of its complaint [but also supports a] finding of reverse domain name hijacking.’”

One of the deficiencies undercutting credibility is a party’s certification inconsistent with its representation “that this complaint is not being presented for any improper purpose such as to harass.” Rules, paragraph 3(b)(xiv) for complainant or failure to certify to the truth of its factual contentions, paragraph5(b)(viii) for respondent. This infects both complainants and respondents. The Policy expressly requires certification that “that the assertions in this Complaint [or Response] are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.”

Further insight into this aspect of credibility is illustrated in Boehringer Ingelheim Pharma GmbH & Co. KG v. Whoisguard Protected, Whoisguard, Inc. / ESQUIRE 5, J Gates, D2015-0978 (WIPO August 17, 2015) in which the Respondent contended in emails that it was (or would be) using <spirivasucks.com> to provide “honest information” but failed to incorporate this intention in its formal pleading or certify.

“Spiriva” is a pharmaceutical product. The Panel noted that

Although ‘criticism’ is not mentioned in any of the webpages operating from the Domain Name . . . this is at least suggested by the statement in the Respondent’s email dated June 23, 2015:

‘We are going to build information sites where the public could either participate by message boards or polls and will have honest information.’

The Panel concludes by pointing out that the

Policy provides a relatively informal process of dispute resolution. It has no formal rules of evidence and panels frequently are prepared to treat as evidence assertions of fact to be found in the parties’ submissions insofar as these facts can reasonably be expected to be within the knowledge of that party. In the circumstances, it is imperative that submissions contain at the very least the limited safeguard provided by paragraph 5(b)(viii).  (Emphasis added)

In insisting on conformity with the rules for certification the Panel cites its own earlier decisions for the proposition. It certainly makes sense to insist on the “limited safeguard[s]” and to find against parties who disobey them. In Christian Dior Couture v. Christina Dior/Chris Vella, D2009-0032 (WIPO February 27, 2009) and Privatbrauerei Eichbaum GmbH & Co. KG v. Hamit Karaca, D2010-0258 (WIPO March 29, 2010) the Panel stated that failure to comply with the certification requirement is no trivial matter. Informal assertions in email responses to the complaint have no evidentiary value. Uncertified contentions “should be accorded very limited evidential weight.”

In win.rarGmbH v. Win Road Assistance Repairs Pvt. Ltd., D2015-0398 (WIPO June 2, 2015) Respondent appeared and rested its defense on ownership of a registered trademark and that it was commonly known by the domain name. However, the three member Panel concluded that the registration was part of a design to hide bad faith registration. Respondent alleged it “‘entered into a partnership with some people to expand [its] business’ under the name ‘WINRAR’”. But, critically, it failed to “identify the ‘people’ or give any detail of the nature of the partnership or explain exactly how the business was to be expanded or indeed whether it was in fact expanded…. The Respondent’s claims here are vague and unsupported.” As a result the allegations can be disregarded “if the overall circumstances demonstrate it was obtained primarily to circumvent the application of the UDRP.”

The deficiencies in pleading and certification have led a number of Panels to issue warnings particularly to complainants and counsel that ignorance of the Policy and Rules will not be tolerated. A further recent illustration of this is the pronouncement is found in Pick Enterprises, Inc. v. Domains by Proxy, LLC, DomainsByProxy.com / Woman to Woman Healthcare / Just Us Women Health Center f/k/a Woman to Woman Health Center, D2012-1555 (WIPO September 22, 2012):

The fact that Complainant is represented by counsel makes the filing of this Complaint all the more inexcusable. The matters identified in the preceding paragraph are not Policy arcana; each is a precedent of long standing and derived from scores of cases, and each addresses a fundamental Policy requirement.

In a number of these cases, in which complainants come under withering criticism, as in Pick Enterprises, they are also judged to have commenced abusive proceedings: “given the circumstances of this case, especially the dearth of evidence supporting the Complaint, it is difficult to avoid an inference that the Complaint was filed at least in part not to obtain the disputed domain name but rather to increase negotiating leverage in the settlement discussions, ‘a highly improper purpose.’”

The only conclusion one can draw from these cases is that complainants, or more likely their bull dog advocates alone, are being parsimonious with the truth and fudging the facts to improve their arguments in the belief that they can get away with this conduct. The Panels cited above are very clear that complainants (and sometimes respondents) cannot get away with it.

Mr. Levine is the author of a treatise on trademarks, domain names, and cybersquatting, Domain Name Arbitration, A Practical Guide to Asserting and Defending Claims of Cybersquatting under the Uniform Domain Name Dispute Resolution Policy. (2015, 558 pages). Learn more about the book at Legal Corner Press. Available from Amazon and Barnes & Noble.  Ongoing Supplement here

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