Recent Case Notes & Commentary

A Defence without Evidence: Doomed to Fail

Naspers Limited v. M. Bishoen, C&C Participaties B.V.

Case No. D2019-2363

November 28, 2019


Many of the claims brought under the UDRP appear to be clear cases of cybersquatting, and either proceed undefended or with minimal resistance by a Respondent without a leg to stand on. However, some alleged Cybersquatters still try to spin spurious narratives to avoid the wrath of the UDRP. However, without evidence, they are usually unsuccessful. The following case demonstrates the somewhat extreme lengths Respondents may go to keep their domain names, and is a comical reminder that a party’s success relies on the quality of its evidence. The Respondent put in a lot of evidence, but in quantity, not quality. Its defence failed because its evidence was singularly unpersuasive and simply did not prove the case being mounted.


This case highlights the lengths Cybersquatters can go to hold onto a domain name

The case concerns multinational media giant Naspers ( which owns 46.5 % of Chinese internet company Tencent )as Complainant, and the disputed domain <naspers.media>, registered by a Surinamese business purporting to be involved in the adult entertainment industry. The Complainant sought transfer of the disputed domain, arguing that the Respondent had registered it to take advantage of its widely known trademark, NASPERS, as the Respondent had done with several other domains, including <10cent.pictures>, <playboyenterprises.sex>, and <sinaweibo.in>. Following the three elements of the policy, it laid out its trademark rights for the NASPERS mark, made a prima facie case that the Respondent lacked rights and legitimate interests in the domain name, and alleged that due to the notoriety of their mark, the respondent had registered and used the domain name in bad faith.


To defend itself, the Respondent claimed that it had registered the domain name in connection with its adult entertainment business, to supposedly spruik the work of a porn star named “Nasty Person,” with which it had a commercial relationship. However, despite over 30 annexes of evidence being submitted, there was nothing to suggest that such a person existed, let alone held any dealings with the Respondent. Internet searches by the Complainant could not find any mention of the aforenamed adult actress. Rather, it seems highly likely that the Respondent fabricated the existence of “Nasty Person” to create a legitimate interest in the domain name, however long a bow the connection between “Nasty Person” and NASPER may be.


However, in the absence of any evidence corroborating its assertions, it was unable to prove this attempted rebuttal of the claim, and the panel found decisively in favour of the Complainant.


Clearly, alleged cybersquatters will go to any length to avoid losing their domain names if they think the name is worth fighting over. However, UDRP decisions rely on evidence, and ultimately the panel will always find for the party which can most convincingly and substantively tip the balance of probabilities in its favour. Assertions without evidence are always doomed to fail. Don’t let this happen to you.