“It is for the Complainant to prove its case under the Policy, not for the Respondent to prove his defense,” Groupalia Compra Colectiva, S.L. v. Andrea Santini, D2010-1979 (WIPO January 26, 2011). Although the respondent has a burden of persuasion on the issue of right or legitimate interest, it is the complainant who bears the burden of proof on the third element. So that, if neither party presents a strong case where they ought and the scale is in equipoise on the third element, the complainant loses.
The word “groupalia” is the dominant term of the Complainant’s trademark, GROUPALIA COMPRA COLECTIVA (a figurative mark) and GROUPALIA TRAVEL, but it has no trademark for “groupalia” standing alone. However, the parties have European residency. Geographical congruity is generally a basis for concluding that respondent was likely aware of the complainant and its trademark. In this case, the Respondent appeared and offered what the Panel held was a plausible explanation for its choice of domain name, even though the Respondent’s testimonial proof was contradictory in that he claimed both that he was unaware of the Complainant and that he was aware of the Complainant’s website.
The Panel excused Respondent’s contradiction in Groupalia Compra Colectiva as follows: “The inconsistency in the Response to which the Panel has drawn attention could be an indication of untruthfulness, but it could equally well be a result of the fact that the Respondent is not working in his mother tongue. There is no evidence before the Panel to show that the Respondent has a history of domain name abuse.” Complementary to the inconsistency of the Respondent’s testimony is the Complainant’s unsatisfactory record. “While there are aspects of the Respondent’s story, which are unsatisfactory (e.g., the absence of any evidence to support the existence of his plans for the website to be connected to the Domain Names and the inconsistency relating to his knowledge of the Complainant at time of registration of the Domain Names), there are also unsatisfactory aspects of the Complaint.”
Groupalia Compa Colectiva is a case that could have gone either way. What one Panel finds “unsatisfactory” about a complainant’s record will give no pause to another. When more credit is given to one party over the other the result is a benefit of the doubt decision. What the Panel in Groupalia Compa Colectiva found “unsatisfactory” is that the Complainant failed to proffer evidence on the date the domain name was registered its website “indicate[d] that [it] then had [unregistered] trademark rights in respect of the name ‘Groupalia’.” Further,
Was the Complainant then trading under the name in Italy, the Respondent’s home country? If so, was that fact apparent from looking at the Complainant’s website at that time? If the Respondent’s story is an honest one, was there anything on the Complainant’s website which should have indicated to the Respondent that his planned use of the Domain Names was likely to have violated the Complainant’s trade mark rights? …. Nothing in the papers before the Panel answers these questions.
The Panel ultimately was unable to “make a finding to the effect that the Respondent has been untruthful,” the inconsistency in its response and the fanciful explanation notwithstanding.