INFOBAE v. WhoisGuard, Inc. FORUM Claim Number: FA2009001911369
October 23rd 2020
The Uniform Rapid Suspension System (URS) is an alternative domain name dispute resolution service, which complements the usual UDRP service. Aside from being cheaper and faster, one of the key differences is the remedy issued under the URS, which is a suspension of the contested domain name for the remainder of its term rather than a transfer of the registration to the complainant. The relative speed and informal nature of URS proceedings doesn’t mean they are always easy to win. The requirements of a URS complaint are substantively the same as a UDRP complaint and even undefended complaints can still fail.
The evidentiary burden for URS complaints is “clear and convincing evidence.” This is a low standard which might suggest that undefended complaints should always prevail. This is not the case. Complainants still need to show that (i) they have rights to the domain name, (ii) the registrant has no rights to it, and (iii) the registrant is using the domain name in bad faith.
If the complainant leaves any genuine issues of fact unaddressed, they will not succeed – even if uncontested.
In the recent case of INFOBAE v. WhoisGuard, Inc. we saw online news publisher, Infobae, conflate the virtues of the URS with the notion that ‘anything goes’. Infobae failed to substantiate a claim that its website was being attacked by AI robots designed to steal its content for reproduction on the website of the disputed domain name <infobae.live>.
URS Procedure paragraph 1.2.6 requires that the complainant “set forth facts showing that the Complaining Party is entitled to relief”. In other words, they have to establish a prima facie case. This is the requirement to which the standard of “clear and convincing evidence” applies.
So, why did Infobae fail? It merely made conclusory allegations. It also did not provide evidence of any trademark rights upon which it was relying. Whilst the assertion of content-stealing AI robots is plausible, plausibility will not get the job done.
URS decisions made without prejudice
Paragraph 8.5 of the URS Procedure requires that when a URS matter is dismissed, it be without prejudice. That leaves the door open for a URS Appeal, UDRP, or a domestic court proceeding. The reason for without-prejudice dismissal is that the URS was not intended to be a rigorous fact-finding forum and so it will only deal with cases of clear-cut trademark abuse.
See HERE for more information on the URS.