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Inferring from Circumstantial Evidence

Rule 14(b) of the Policy provides that if a party does not answer the complaint or comply with any request from the Panel “the Panel shall draw such inferences … as it considers appropriate.” The Panel’s decision in MBS Consulting SPA v. mbsconsul inc. / web master, D2009-1505 (WIPO December 23, 2009) illustrates what is appropriate. “There is no direct evidence that the Respondent knew of the Complainant or its MBS CONSULTING trademark, or registered the disputed domain name for the purpose of selling it for a profit. Nevertheless, the Respondent’s knowledge and intention may be determined by common sense inferences from circumstantial evidence.”

The following are the undisputed facts in MBS Consulting:

(a) the Complainant’s MBS CONSULTING trademark is specific to the Complainant in connection with its consulting services business; (b) the disputed domain name was registered almost three years after the Complainant began using its MBS CONSULTING trademark on the Internet and otherwise; (c) the Respondent used the disputed domain name for a single page website that stated, in relevant part, as follows: ‘This domain is for sale – USD1890 – (This price is strictly non negotiable)’; and (d) there is no apparent connection or relationship between the disputed domain name and the Respondent or its business or any other justification for the Respondent’s registration and use of the disputed domain name.

It can be inferred from these facts that the Respondent 1) had actual knowledge of the Complainant and its trademark – “The fact that the disputed domain name was registered before the Complainant registered its MBS CONSULTING trademark does not assist the Respondent, because the Complainant was using its MBS CONSULTING trademark on the Internet and otherwise for almost three years before the domain name was registered”; and 2) acquired the domain name to sell it to the Complainant – although the Respondent’s offer “to sell the disputed domain name is not directed specifically to the Complainant or its competitors it is identical to the Complainant’s MBS CONSULTING trademark and there is no evidence that the disputed domain name would be of interest to anyone other than the Complainant or its competitors.”

These inferences are reinforced in MBS Consulting by “the Respondent’s failure to provide any explanation or rationale for its registration and use of the disputed domain name.” Are the inferences “appropriate”? A distinction is drawn between “allegations of fact” and “allegations of inference.” An allegation of fact asserts the existence or non-existence of an act or circumstance, for example that the complainant did not grant respondent permission to register and use the disputed domain name. If a fact is not denied it is deemed admitted and absent evidence to the contrary is conclusive on the issue for which it is proffered.

Rule 14(b) has been construed to mean that allegations of fact unopposed that are reasonable, that is, more probable, may be accepted as true. When the burden shifts and the respondent fails to respond, either because it has not answered or offers no explanation if it has, the Panel will assume that “the evidence would not have been favorable to respondent.,” Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, D2000-0004 (WIPO February 16, 2000).

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