The Rules of the Policy limit each party to one pleading (Paragraphs 3 [complaint] and 5 [answer]), which can be supplemented in either of two ways, by the parties submitting supplementary material requested by the Panel under Paragraph 12 of the Rules or with the Panel’s permission upon a party’s request. Paragraph 12 is generally invoked when the Panel seeks additional proof to corroborate a party’s contentions. There is no explicit provision in the Rules for a reply and sur-reply.
However, Nat. Arb. Forum’s Supplementary Rules authorize the parties to supplement their pleadings as of right under Rule 7. There is no comparable provision in the WIPO Supplementary Rules, although the WIPO Overview at paragraph 4.2 acknowledges as a Majority View that at its most liberal panelists exercise discretion to accept supplemental material. Nevertheless, there is a Minority View that takes the position that “[u]nless the panel specifically solicits a supplemental filing, it will not consider a supplemental filing in its decision.”
Supplemental filings elicit a palette of views in Denver Newspaper Agency v. Jobing.com LLC., FA0908001282148 (Nat. Arb. Forum October 16, 2009). The majority accepted the Respondent’s late filed answer and gerrymandered the Complainant’s supplementary submission. “Pursuant to the Forum’s interpretation of the Rules [of the UDRP] … the Forum treated the Response as being incomplete because the hard copy was not received on the due date. The Forum therefore notified the Respondent that the Response was deficient under Rule 5.” However, the majority concluded that the “deficiency was minor.”
The more lengthy of the two dissents points out that the “Forum’s interpretation of the Rules to require actual receipt by the Forum of the hard copy on the due date is inconsistent with the UDRP Rules themselves.” The UDRP Rules “require the Respondent to have taken the act of “submitting” the Response within 20 days; it does not require the Respondent to cause the hard copy to be “received” at the ADR provider’s offices within 20 days,” citing his own earlier decision in Free Bridge Auto Sales Inc. v. Larry Ross, FA0903001250951 (Nat. Arb. Forum April 28, 2009) (Ftn 2).
The distinction of “served” and “receipt” is well recognized in the litigation fraternity. Depositing papers in the mail or overnight courier satisfies the “service” requirement for post-process submissions. If the electronic version is timely received by the provider it should not be labeled deficient. The Forum, however, extracts a “penalty” for deficient response. The dissent also “object[s] to the Forum’s requirement that the Respondent pay a fee of $400 in conjunction with its re-filing of the Response as a Supplemental Submission under Supplemental Rule 7” because it is “inconsistent with the Rules and the general policies underlying the treatment of respondents in the UDRP.”
The gerrymandering occurs when the supplemental material is not supplemental but either repetitious or should have been argued in the complaint. Kent House Ltd. v. RN, WebReg, FA0403000244527 (Nat. Arb. Forum May 4, 2004) (Dissent: “supplemental submissions should only be accepted if they are rebutting defenses that could not reasonably have been anticipated, or to bring new facts or precedent to the Panel’s attention.”)
The majority in Denver Newspaper took as much of the Supplemental Submission as it needed and disregarded the part that “did not address any new legal principles or facts that could not have been anticipated in the Complaint.” The less lengthy dissent would have accepted the entirety of the Complainant’s Additional Submission “because it was submitted in accordance with the Forum’s published Supplemental Rules, which govern this proceeding.”
Mr. Levine is the author of a treatise on trademarks, domain names, and cybersquatting, Domain Name Arbitration, A Practical Guide to Asserting and Defending Claims of Cybersquatting under the Uniform Domain Name Dispute Resolution Policy. (2015, 558 pages). Learn more about the book at Legal Corner Press. Available from Amazon and Barnes & Noble. Ongoing Supplement here.