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Recent Case Notes & Commentary

PROCEDURE - A Reply By Any Other Name: Informal Responses

29 September 2020

WIPO Case No. D2020-2065

What constitutes a Response in a UDRP dispute? And how far can the Panel go in construing an informal response as being an actual Response?

The case of PetSmart, Inc. v. Pet Mart sets out an interesting example of the flexibility of the UDRP Panel to permit evidence of a formally non-compliant Response.

The formal requirements are set out in UDRP Rule 5, including what information must be included, time limits, formatting, and other content. The consequence of a non-compliant Response is not set out in the Rules, however per Rule 5(e), the Panel can make a decision based on the Complaint alone if a Response is not filed.

In PetSmart, Inc. v. Pet Mart, the Response consisted of three separate emails which did not meet a number of the formal requirements, including an index of evidence or certification of completeness and accuracy.

The Panel highlighted that the Respondent was unrepresented, and hence it was allowed a “degree of leniency” that was sufficient to admit the Response.

This pragmatic approach is based on the general powers of the Panel to conduct the proceeding in a manner it sees appropriate, as in all arbitrations and ensuring that Parties are treated with equality and given a fair opportunity to present their case.

However, this admission was not without limits - the Panel applied additional caution to questionable evidence such as if it were “not backed by suitable independent sources or sufficient corroborative elements”. Allowing such evidence to be admitted for the Respondent without scrutiny could be very detrimental to the Complainant and undermine the overall aim of fairness to both sides.

As such, the approach in this case is not a guarantee that an informal Response will always be accepted – but simply that, on balance, it may be considered. As such, parties and their lawyers should still strive to comply with the formal requirements, such as the requirements for a valid Response, to the best of their ability. It saves a lot of trouble in the long run.


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