Paragraph 4(a)(ii) of the Policy is framed in the present tense: the respondent “lacks rights or legitimate interests” in the disputed domain name. The complainant satisfies its burden by offering a prima facie case, which is defined as one that “will suffice until contradicted and overcome by other evidence.” Once the complainant makes a prima facie case that respondent lacks rights or legitimate interests in respect of the domain, the burden shifts to respondent to offer credible evidence to the contrary. The narrow issue of right or legitimate interest is answered by the respondent’s present use of the domain name without reference to the past. Use, as pointed out last week in the Note on Viking Office Products, Inc. v. Natasha Flaherty a/k/a ARS – N6YBV, FA1104001383534 (Nat. Arb. Forum May 31, 2011), is not governed by whether the domain name resolves to an active website.
The question, rather, is what constitutes a prima facie case? It does not make itself. That is, complainant’s paragraph 4(a)(ii) burden is not satisfied by the respondent defaulting in appearance. It must make an affirmative showing that the respondent lack rights or legitimate interests in the disputed domain name. Argument resting on nothing is nothing. Offering nothing supports dismissal of the complaint. Act II Jewelry, LLC d/b/a lia sophia v. Mike Man, FA1104001385563 (Nat. Arb. Forum June 6, 2011) (LIA SOPHIA and <liasophiasale.com>), in which the Panel concluded that the Complainant failed to submit enough evidence to establish the required prima facie case.
In Act II Jewelry, Complainant submitted “no Annexes [with its Complaint] to show Respondent’s alleged use, and has simply restated the Policy paragraphs while failing to make substantive arguments for its position.” Respondent’s default “does not lead to an automatic ruling for Complainant. Complainant still must establish a prima facie case showing that under the Uniform Domain Name Dispute Resolution Policy it is entitled to a transfer of the domain name,” VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000). There is no free ride. In the absence of the respondent complainant must still allege and prove the elements of the Policy.
It is pointless to bring on a proceeding (as it is in moving for summary judgment in a civil action) without understanding the evidentiary rules. As a rule of thumb, the complainant is well advised to build its prima facie case on mirroring the three paragraph 4(c) defenses, supported by snapshots of the website together with circumstantial and inferential evidence. For example, the respondent is not making a bona fide offering of goods or services [paragraph 4(c)(i)] which can be inferred from the content of the website; is not “commonly known by the domain name” [paragraph 4(c)(ii)], evidenced from the Whois directory; and is not making a noncommercial or fair use of the domain name [paragraph 4(c)(iii)], again evidence by content. It may also look to the content history of the website in the Internet Archive.