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Speculation and Unsupported Assertion is not Proof

The complainant has the burden of proof on all elements of the Policy. It is lighter where the complainant has control of the evidence. For example, for proving that a respondent lacks rights or legitimate interests under paragraph 4(a)(ii) of the Policy there is not usually any conclusive evidence since the evidence is controlled by the respondent. For this reason, a consensus quickly formed within the first few months of the UDRP that this element could be satisfied by the complainant making a prima facie case, which is defined as one that “will suffice until contradicted and overcome by other evidence.”

The burden is said to be “light” but light as it is the complainant cannot rest on speculation. There must be some evidence, or at least sufficient from which an inference can be drawn making it more likely than not that the prima facie burden is satisfied. How much evidence and of what kind depends in part on the strength of the trademark, the relationship between the parties and their geographic proximity or remoteness.

Pro formerly a complainant should affirmatively state that the respondent is using the domain name without permission to attract Internet users to its website; is not making a bona fide offering of goods or services, is not “commonly known by the domain name” and is not using it in a legitimate non-commercial manner or entitled to protection under a fair use theory. Obversely, the respondent must come forward with concrete proof of one of the safe harbor defenses.

The meaning of “light” is relative; it cannot mean something less than proof. The Panel in Fender Musical Instruments Corporation v. Christopher Ruth, FA1007001333857 (Nat. Arb. Forum August 9, 2010) demands that the complainant marshal more because its trademark, FENDER (as a common dictionary word) is on the lower end of protection. Hence, its burden is heavier, even though the Respondent defaulted in responding to the complaint. “Here” (states the Panel) “Complainant claims Respondent made no use of, or any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.” This allegation tracks the would-be defense under paragraph 4(c)(i) of the Policy. However, the “Panel finds Complainant’s assertions, without any supporting evidence or analysis, do not sufficiently establish Respondent lacks rights or legitimate interests in the <> domain name.”

What did the Panel find missing in Fender? To satisfy a prima facie case the complainant must offer facts as opposed to assertions. The Panel in one of the cited cases, Yao Ming v. Evergreen Sports, Inc., FA 154140 (Nat. Arb. Forum May 29, 2003) rejected the complainant’s offer of proof as merely asserting a legal conclusion. The Panel “has no knowledge of Respondent’s use of the domain name upon which to base a decision.” This means that the complainant must make an affirmative statement followed by supporting evidence.

In other words, it is not enough to say that the domain name is not being used in connection with a bona fide offering of goods when the complainant makes no showing of how the domain name is actually being used. “Complainant fails to allege any facts related to Respondent’s use or provide any screen shots of Respondent’s resolving website.” The missing evidence could have been as little as a narrative of the content of the website together with a screen shot. Without such evidence, it is literally impossible to know whether the registration or use of the domain name is bad faith under any of the paragraph 4(b) elements.

Levine Samuel, LLP <>
Gerald M. Levine <>

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