Slingshot Transportation, Inc. v. InBok Lee
FORUM Claim Number: FA1904001841279
April 30, 2019
What happens when a Respondent defaults?
In this case the Respondent (Inbok) failed to make any representations to the panel and the single panellist issued a Notice of Respondent Default under the UDRP. Under these circumstances, you would think that panels would be far more likely to find in favour of the Complainant and feel free to rely on their representations alone to make out the elements required to succeed in the claim.
UDPR policy goes even further to allow a panel to ‘draw such inferences it considers appropriate’ to reach a fair conclusion as well as ‘accept all reasonable allegations set forth’ by the Complainant. This would appear to confer upon the panel a very wide discretion in their fact finding and adjudicative powers in the absence of representations from the Respondent.
Some people would say that if the Respondent cannot even bother to enter a defence, it deserves to lose. But the correct view, and the one that panellist should follow, is that the Complainant still has to prove its case- and the panellist still has to ensure that the case has been proven before ordering a transfer of the domain name.
And cases can be lost, even if they are undefended.
The importance of operating in different industries
In spite of the odds, Slingshot Transportation (which runs a transportation business) was unsuccessful in seeking a transfer of the disputed domain name <slingshot.info> because, although it has a trademark for SLINGSHOT, it could not show that Inbok had no right to register the domain name, given that Inbok’s ‘pay per click’ business connected to websites selling actual slingshots. It was not using the domain name to poach Slingshot’s goodwill in transportation. The word ‘slingshot’ is a generic term and Inbok was using it in its ordinary sense. Using generic terms in this way is a form of usage open to all and this simple fact combined with the effect of operating in different industries was fatal to Slingshot’s claim. So the Respondent won, despite not defending the claim.
The take home message to legal practitioners: don’t leave out your evidence just because you think the Respondent will not defend the claim. You can still lose, even against a Respondent who has not defended the claim.
A note on generic top-level domains (gTLDs)
This case also reminds us that the gTLD “.info”, like all gTLDs, is not a feature of a domain name which can differentiate it from a registered trademark. In other words, SLINGSHOT and the domain name <slingshot.info> are identical for the purpose of resolving the dispute. Individuals registering domain names of all sorts should be aware of this important lack of distinction.