No one will disagree that disputes before arbitral tribunals and courts should be determined on the merits. I have noticed that some Panels appointed under the Uniform Domain Name Dispute Resolution Policy (UDRP) have employed the words “objective” and “objectively” in their recent decisions. In pondering these linguistic choices it seems to me that there are two possibly reasons for their use, the first is more acceptable than the second. One involves explaining the policy underlying the UDRP and the other to assure readers that the outcome is not based on subjective sympathies. Drawing inferences of course is a principle tool of reasoning, but it can be misused, none more so than in the absence of concrete facts. The thinner the record the less justification for drawing inferences and when such inferences are drawn from thin records it can be suspiciously self-justifying to claim objectivity.
The first reason for the choice, which is perfectly respectable, is illustrated in Fundación Trinidad Alfonso Mocholí, Fundación de la Comunitat Valenciana v. Jack Zhang, D2020-1543 (WIPO August 4, 2020). In this case the Panel explains that “[i]n the context of domainers, panels have generally assessed the issue of registration in bad faith objectively” (emphasis added). This is no more than saying that assessment of the facts will not be processed through the decision-maker’s subjective bias. Objectively, the Panel is assuring the public, is the model for UDRP decision making. It is that which is to be strived for. Parties need to be reassured that decision-makers will not cross the line into subjectivity.
The same point is further illustrated in Putzmeister Engineering GmbH v. Domains By Proxy, LLC / David Adams, D2020-1454 (WIPO September 5, 2020) (<putzmeisters.com>. In Fundación Trinidad, the Panel is assessing the facts to determine the Complainant’s case; in Putzmeister the Panel is assessing the Respondent’s case. Having examined facts—which included proof that the domain name was virtually identical to the mark—it concluded that “[o]n any objective view, the Respondent is not a reseller with a legitimate interest in a domain name incorporating a manufacturer’s mark, such that it could meet the tests set out in Oki Data Americas, Inc. v. ASD, Inc., [D2001-0903 (WIPO November 6, 2001)]. Nor, alternatively, is the Respondent commonly known by the Disputed Domain Name” (emphasis added). The Panel has a thick record which makes the inferences reliable in the absence of rebuttal facts.
In Intesa Sanpaolo S.p.A. v. Stefano Santino, CAC 103218 (ADR.eu September 9, 2020) (<intesa-sanpaolo-sicurezza-okey.com> the Panel underscored another perfectly suitable use of “objectively,” this time by tying the conclusion to a precedential construction of the Policy:
As regards to the first aspect, the Complainant has already extensively proved the renown[ ] of its trademarks. For what concern the second circumstance, it must be underlined that it is objectively not possible to understand what kind of use the Respondent could make with a domain name which does exactly correspond to the Complainant’s trademarks and that results so similar to the Complainant’s domain names currently used by the latter to provide online banking services for enterprises. (Emphasis added).
We expect Panels to exercise their power objectively; to avoid tilting on the basis of suspicion. We expect this because the Panel’s power is of such immensity that it can take away and forfeit a respondent’s property. Objectivity is not always achieved, however. Panelists have stepped into error, either because they apply the wrong law, or because they believe they are being objective even when their determinations are questionably so. This point is illustrated in a number of ill-determined awards over the years, some of which have been vacated in challenges under the Anticybersquatting Consumer Protection Act and others which have not been challenged because of the prohibitive cost of litigation. There is, I think, a temptation to find liability where the registration of a domain name is suspicious simply because it is identical to the mark even though the term is not conclusively associated only with complainant. But in many of these cases, Panels reached their conclusion on thin records, and have stepped into error.
An illustration of this temptation is Aveve N.V. v. Privacy Administrator, Anonymize, Inc. / Dennis Koorn, D2020-1115 (WIPO September 2, 2020) (<arvesta.com>). The essential fact in this narrative is that Respondent was the winning bidder of the domain name in a public auction. It did not approach the Complainant. The Complainant had in the recent past rebranded itself as ARVESTA, invoking “Harvest” and other land related connotations. The Complainant could have equally engaged in the public auction but it failed to do so. Nevertheless, the Complainant was “suspicious”, not on any particular evidence, but like a virus it infected the majority to agree, and although there was no direct evidence to support its believe it chose to accept the allegation as though it was true.
The Panel repeated its belief not once but thrice—a case I think of the “[majoriy] protesteth too much” (a point made in the lengthy dissent):
The objective evidence, however, discloses that the Respondent appears to have undertaken considerable research into the disputed domain name before bidding for it, given the Respondent supports its claim to the disputed domain name by reference to the third party uses and Estonian and Finnish usage referred to above. It appears highly likely that those searches must have revealed the Complainant and its rights in the name “Arvesta”, as shown by the Respondent’s own evidence (see the Google searches as mentioned above).
The objective reasons leading to the Panel’s conclusions that the Respondent does not have rights or legitimate interests in the disputed domain name lead also to the finding that the Respondent registered and has used the disputed domain name in bad faith.
On the objective evidence included in the record in this case, and the inferences arising from that evidence, the majority considers that standard has been satisfied in this case for the reasons set out above. (Emphasis added in all three quotations).
What the “object evidence” is we never learn; it exists in the mind. What we learn from the actual facts pleaded is that the record is extremely thin; there are no concrete facts except that the Respondent did some research before offering the winning bid. In other words, the inferences dran by the majority are based on suspicion and conjecture alone rather than evidence, even as the majority claims to have relied on “objective evidence.”
Where facts justify, of course inferences can be drawn. But where facts cannot be decisively assessed for want of proof, the complaint must be dismissed. A Panel’s willingness to base a decision on a thin record, the likelihood increases that it is made on subjective grounds, assertions of objectivity to the contrary notwithstanding, and that kind of decision making undercuts expectations of neutrality. As on a continuum, the thinner the record the less justification to deduce what in effect results in drawing something from nothing. Where suspicion becomes the fulcrum of liability, there is, purely and simply, error.