In the recent case concerning Chatroulette.org , the Panel demonstrated the responsible and prudent approach in evaluating evidence in the UDRP. The Panel stated as follows:
“The Panel takes the view that the Respondent’s denial of knowledge of the existence of the Complainant and his trade mark at that date is credible enough to require more from the Complainant to overcome. The Panel concludes that it would be unsafe on the evidence before it to reject the Respondent’s denial and conclude that the Respondent intentionally set out to acquire the Domain Name in bad faith to target the Complainant.” [emphasis added]
A Panel’s mandate and indeed its sole jurisdiction, is to only order domain names to be transferred in “clear cases”. It is crucial to recall what WIPO Panelist David Bernstein stated 18 years in his presentation to the WIPO, and what remains equally important today:
“Because of the truncated nature of the proceedings, electronic dispute resolution is not well suited to cases with hotly disputed factual assertions, requiring complex credibility determinations. Given the absence of a live hearing, cases that turn on disputed facts should instead be resolved in court, where discovery and cross-examination can permit a fact finder to navigate the shoals of conflicting testimony. [emphasis added]
A responsible and prudent UDRP panel that upholds the spirit and intent of the UDRP, will generally refrain from jumping to conclusions without an adequate evidentiary basis. This can sometimes be difficult to do, as UDPR panelists are often wise and experienced and may be tempted to resolve a dispute that otherwise should be left unresolved, since the UDRP is simply not equipped to handle disputes where there are competing rights or contested versions of material facts (See also for example, Quarterview v. Quarterview Co. Ltd., eResolution Case Numbers AF-0209a and AF-0209b) and Adaptive Molecular Technologies Inc. v. Priscilla Woodward (the existence of significant factual and legal issues makes this case inappropriate for resolution under the Policy).
The ICA acknowledges and appreciates the efforts and wisdom of the distinguished Panel in the Chatroulette.org case, which consisted of Tony Willoughby (Presiding Panelist), Alexandre Nappey, and Fernando Triana. They upheld the fairness of the UDRP procedure and employed the appropriate circumspect approach.
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