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Recent Case Notes & Commentary

EVIDENCE AGAIN! Evidence Needed for a Fruitful Claim

30 September 2020

FORUM Case. Claim Number: FA2008001910498

As we have seen many, many times before, good evidence is essential in order to succeed in a domain dispute.

While an undefended claim might seem like low-hanging fruit, ADAM KAY / YOU LOVE FRUIT INC v. HANNAH KRAUSZ / PURE BITES shows us that without evidence, the Complainant’s claim may still be denied.

In this case, the Complainant easily established that the domain name in question, <>, was identical to its trademark YOU LOVE FRUIT, with the addition of the generic Top-Level Domain ‘.com’. However, the Complainant went on to make a number of unsubstantiated assertions regarding the remaining UDRP elements.

Bad Faith

The domain was inactively held by the Respondent, with the landing page showing information from the Registrar about purchasing the domain name. The Complainant asserted that the Respondent must therefore have been using and have registered the domain in bad faith.

Prima facie, this may seem like a perfectly reasonable application of evidence of bad faith per pareagraph 4(b) of the UDRP Policy. However, there were a number of shortcomings on these facts.

First, there was no obvious fame of the Complainant’s trademark, and no evidence that the Respondent was targeting the Complainant’s business. Indeed, there was no evidence that the Respondent was even aware of the Complainant at all.

Second, the domain consisted of generic words and had an inherent meaning of its own. Without evidence of the Respondent’s knowledge of the Complainant, the Panel was hesitant to accept that the Respondent had bad faith motivations (see our recent case note on South African Revenue Service v. 凌兴旺 (Xing Wang Ling) for a very similar discussion).

Third, there was no evidence that the Respondent was directly targeting the Complainant with the sale of the domain, or was even intentionally offering it for sale.

In these types of cases, it is important to remember the underlying purpose of the UDRP - to be a mechanism for resolving legitimate domain disputes and problems like cybersquatting. It is not simply a tool for having a domain name transferred to you simply because you feel that you ought to have it ( which sometimes seems what the claim boils down to).

You cannot simply state that the elements have been proven - that is the role of the Panel. As a Complainant, you must provide evidence which carefully substantiates your claim.


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