Recent Case Notes & Commentary

DOES SILENCE SHOW BAD FAITH ?

Allianz SE v. Melvin Hubbard

WIPO Case No. D2019-1842

August 30, 2019



When a respondent is served with a complaint, but does not reply to it or file a Response, is it evidence of bad faith? As the respondent is so unco-operative with the system that it does not respond to the Complaint, does that show it was so shifty that you can assume it was up to no good when registering the domain name.


Some panels have decided that not to file a Response is in fact evidence of bad faith. This recent decision (above) has been added to the cases that have decided it shows bad faith to ignore a complaint. The decision is set out above and you may like to cite it as an example of this principle. The Panel said:


“Finally, the failure of the Respondent to answer the Complaint or take any part in the present proceedings, again, in the view of the Panel, is another indication of bad faith on the part of the Respondent. See Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787.”


Indeed, the same principle has been applied where the respondent has not replied to a cease and desist letter.


Here at Domain Times, we are not so sure. We would go along with the principle if some persuasive reason were advanced for it, but we have not seen one, or at least not yet. There is no law that says you must reply to correspondence or to documents like a UDRP Complaint. The acquisition of domain names is governed by a contract between the person who registers the domain name and an accredited registrar.


It is true that UDRP- Rule 5 provides that the respondent “shall” submit a response, not that it “may”. It is also true that Rule 14(b) provides that if a party does not comply with the Rules “the Panel shall draw such inferences therefrom as it considers appropriate”. These provisions tell us a lot about the obligations of a registrant at the time it was supposed to be living up to them. But can those provisions tell us anything about the intention of a registrant at the earlier time when it registered the domain name?


Also remember that the far more basic principle is stated in paragraph 4 of the Policy itself, dealing with proving bad faith, among other things, namely:

“In the administrative proceeding, the complainant must prove that each of these three elements are present.”


One could therefore ask, if the Complainant has to prove its case, how can you assume the Respondent registered the domain name in bad faith simply because it did not respond to the Complaint or a cease and desist letter?


Food for thought.