Another aspect of the use of evidence is that panellists, like judges, will sometimes pick up the fact that there is a gap or a fatal omission in a party’s case that could have been filled satisfactorily; but when it is not filled, the case looks very bad indeed.
A recent example of how these matters effect a panelist is Budge Industries, LLC v. Joe Carrero, (WIPO Case no. D2010-0392) where the issue was whether the Respondent had rebutted the prima facie showing that it did not have a right or legitimate interest in the domain name.
In this case, the domain names were <budgecarcover.com> and <budgecarcovers.com> and the Respondent, to rebut the prima facie case that he had no right or legitimate interest in the domain names, said that he had registered the domain names “with the oral permission from Complainant’s president given prior to registration.”
Clearly, if this consent were proved, the Respondent would have shown a right or legitimate interest in the domain names, for, as the panellist said:
“Such consent would likely provide a defense, as a registration with the mark owner’s permission can rarely be in bad faith. See, e.g., Greyson International, Inc. v. William Loncar, WIPO Case No. D2003-0805.”
But had the consent been proved as a matter of evidence? Not so far. Accordingly, the panel issued a Procedural Order requesting each party to state the early dealings between the parties by means of:
“a single, discrete document that by itself might provide a basis for resolving the proceeding …”, a procedure justified by Randan Corp. v. Rapazzini Winery (WIPO Case No. D2003-0353).
The Complainant complied with the order by submitting an affidavit that showed no contact with the Respondent until after a complaint had been made by a third party complaining of an unauthorised use of that party’s trademark on the Respondent’s website.
The Respondent also submitted an affidavit dealing with alleged earlier discussions, but sworn to only on “ information and belief.”
The Panellist concluded that:
“There is no mention in the correspondence of any earlier consent to resell Complainant’s products or consent to use Complainant’s marks. The only reference in the case file to either is the unsworn statement of Respondent’s counsel in the Response.”
That was not good enough. Again, as the panellist said:
“So far as evidence (as opposed to allegations) is concerned all Respondent has shown is use of the disputed domain name to sell Complainant’s products. There is no evidence that Respondent bought products from Complainant, and more importantly no evidence of permission to resell them or to use Complainant’s mark...
Unsupported factual allegations, even if not denied, are of no moment, and unsworn “statements of counsel as to factual matters easily verifiable with documentary evidence or of which counsel has no personal knowledge are not evidence and carry little or no weight in a Policy proceeding.” Align Technology, Inc v. Web Reg/ Rarenames/ Aligntechnology.Com, WIPO Case No. D2008-0103). Consent, if it existed, was a matter within Respondent’s control, yet he submitted no evidence (not even an “information and belief” statement in an affidavit) to support this critical element of his case.”
The Respondent thus failed to make out this possible defence and the Complainant went on to win the case.
The important points emerging from this case are:
The importance of evidence.
Understand the difference between assertion and evidence.
Get a clear understanding of what you have to prove.
Prove it by the best evidence available and say what happened.
Steer clear of statements on “information and belief” if possible and particularly of such statements being made by counsel.