In my work as an arbitrator in the domain name field over several years, I have noticed a very definite trend in Complaints, Responses, commentaries and wherever discussion on domain name arbitration takes place.
The trend is to move away from facts and evidence and towards so-called precedents or, rather, previous decisions by panellists in this field.
In fact, some submissions now consist of very little evidence at all, and many of them contain long extracts from previous decisions, as if they were evidence and as if they carried some weight.
Naturally, it is interesting to see how other arbitrators or panellists have decided the same or similar issues that arise in a case. But previous decisions are not a substitute for evidence and it is evidence – and facts- that will decide the case. Not only is this so, but the The Uniform Domain Name Dispute Resolution Policy (“UDRP Policy”) makes this clear.
Please note that disputes under the UDRP are distinct from traditional court proceedings which give weight to precedents and prior decisions. Disputes under the UDRP clearly focus on the facts at hand and the evidence to decide matters.
THE UDRP POLICY
Paragraph 4(a) of the UDRP Policy, which sets out the 3 elements that a complainant must prove to claim a domain name, says explicitly that:
“In the administrative proceeding, the complainant must prove that each of these three elements are present.”
Notice that the UDRP uses the word “MUST”.
Notice that the UDRP uses the word “PROVE”.
There is only one way to prove something- and that is by evidence. You do not prove anything by citing and quoting from a previous decision in a case that was based on different, or even similar, facts.
Let us look further at what the UDRP says, to see if it confirms that evidence is essential. It does. Please note that what the UDRP says is important because it is included in the contract or agreement between the registrar through whom the domain name was acquired and the person or entity who acquired it. It governs what is to happen if another party claims the domain name.
EVIDENCE OF BAD FAITH
To establish bad faith, the UDRP Policy tells you, in paragraph 4 (b), that “the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith “and it then lists them.
So, the Policy is telling you this: if you are a complainant, you have to PROVE bad faith and you have to prove it by EVIDENCE. The way you do it is by proving one of the circumstances which it then sets out.
EVIDENCE OF RIGHTS AND LEGITIMATE INTERESTS
To establish rights and legitimate interests, the UDRP Policy tells you, in paragraph 4 (c), that
“…the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interest to the domain name…”.
It then goes on to list what they are.
So, the UDRP Policy is telling you this: the registrant (the current owner or holder of the domain name) has to PROVE it has a right or legitimate interest in the domain name. It can PROVE this by presenting EVIDENCE of one or more of the circumstances listed, or generally. The way you do it is by proving one of the circumstances which it sets out.
Thus, evidence is king. The emphasis is all on evidence and proving particular things. It does not say that previous decisions are important or that they must be cited or used or even that they should be cited or used. It is virtually saying this case will be won on the evidence and nothing else.
NOT CONVINCED?
How about this? The UDRP Policy uses the word “evidence” 4 times, “prove” or “proved” twice and the word “found” twice.
How many times does the UDRP Policy use the words “precedent”, prior decisions or anything like that: zero. The UDRP Policy seems to think that proof and evidence are more important, doesn’t it?
As if that were not enough, the UDRP Rules that govern proceedings under the UDRP, also make it clear that the case is to be decided on the basis of the evidence, not on what previous decisions say.
Thus:
1. The Rules tell us what the Complainant SHALL put in the Complaint. It shall “describe” the grounds of the complaint (Rule 3 (b)(ix). That can only be done by evidence.
2. The Complaint is to consist of “information”. Rule 3 (b) (xiii). Again, you submit evidence of this information.
3. The Complaint is to have annexed to it the “documentary or other evidence” relied on in the Complaint. Rule 3 (b) (xiv).
4. The Complaint is to have a “schedule indexing such evidence.” Rule 3 (b) (xiv).
5. The Response SHALL respond to the “statements and allegations” in the Complaint. Rule 5 (c) (i).
6. The Response is to have annexed to it the “documentary or other evidence” relied on by the Respondent. Rule 5 (c)(ix).
7. The Complaint is to have a “schedule indexing such evidence”. Rule 5 (c)(ix).
8. The Panel is to rule on the admissibility, relevance, materiality and weight of the “evidence”. Rule 10 (d).
9. The Panel may request “further statements or documents.” Rule 12.
10. The Panel is to make its decision on the basis of the statements and documents submitted. Rule 15(a).
The UDRP Rules use the word “evidence” 5 times, and other words consistent only with meaning evidence, such as statements and documents.
How many times does the UDRP Policy use the words “precedent”, prior decisions or anything like that: zero. The UDRP Rules seem to think that proof and evidence are more important.
Let me repeat: there is nothing wrong in looking at previous decisions to see what other panellists have done. It often stimulates your thinking. I often do it. But the precedents cannot control what conclusion the panellist comes to and they are not a substitute for evidence. Evidence will win the day.