It is often said, particularly on this website, that an important feature of proving and being successful in UDRP cases is evidence and that, too often, parties do not adduce evidence that they should adduce or they adduce it in an inadequate or unpersuasive way.

Another aspect of the use of evidence is that panellists, like Judges, will sometimes pick up the fact that there is a gap or a fatal omission in a party’s case that could have been filled satisfactorily; but when  it is not filled, the case looks very bad indeed.

A recent example of how these matters effect a panelist is Budge Industries, LLC v. Joe Carrero, WIPO Case No. D2010-0392 where the issue was whether the Respondent had rebutted the prima facie showing that it did not have a right or legitimate interest in the domain name.

In this case, the domain names were <budgecarcover.com> and <budgecarcovers.com> and the Respondent, to rebut the prima facie case that he had no right or legitimate interest in the domain names, said that he had registered the domain names

"with the oral permission from Complainant’s president given prior to registration.”

Clearly, if this consent were proved, the Respondent would have shown a right or legitimate interest in the domain names, for, as the panellist said :

“Such consent would likely provide a defense, as a registration with the mark owner’s permission can rarely be in bad faith. See, e.g., Greyson International, Inc. v. William Loncar, WIPO Case No. D2003-0805.”

But had the consent been proved as a matter of evidence? Not so far. Accordingly, the panel issued a Procedural Order requesting each party to state the early dealings between the parties by means of:

“a single, discrete document that by itself might provide a basis for resolving the proceeding ...”, a procedure justified by Randan Corp. v. Rappazzini Winery, WIPO Case No. D2003-0353.

The Complainant complied with the order by submitting an affidavit that showed no contact with the Respondent until after a complaint had been made by a third party complaining of an unauthorised use of that party’s trademark on the Respondent’s website.

The Respondent also submitted an affidavit dealing with alleged earlier discussions, but sworn to only on “ information and belief.”