0.2: Standard of Proof — UDRP Perspectives

0.2 Standard of Proof

Complainants must demonstrate that they are entitled to relief under the Policy. That involves fulfilling the three-part test under the UDRP. To meet that three-part test, a Complainant must provide supporting evidence. Failure to meet that three-part test results in dismissal.

The Policy requires that the evidence meets the civil standard of a “balance of the probabilities” or “preponderance of the evidence”. The balance of probabilities standard literally requires no more than a 50.1% likelihood however a notional 50.1% probability that the evidence supports a particular finding, means that there is a 49.9% probability that it does not. In practice, a Panel will be unable to arrive at such a precise calculation of probability. Instead, a Panel may either be clearly convinced of a party’s allegation or may to one degree or another, be less certain. Being less than 100% certain can of course still meet the balance of probability standard because the Policy does not require certainty or “proof beyond a reasonable doubt”. Nevertheless, if a Panel’s level of certainty is so low, such as a notional 50.1% level of certainty, that leaves 49.9% uncertainty, which amounts to not much more than a coin flip. If a Panel determines that the case is so finely balanced that it could go either way, this is a good indication that the case is not a “clear cut case”. Likewise, if a Panel incrementally leans towards one party’s position over another, that may also be an indication that the case is not a clear-cut case of cybersquatting.

In such disputes where the evidence for each side is closely balanced, the Panel’s main consideration may not be the standard of proof but instead the proper scope of the Policy, as discussed above in 0.1. As an expedited administrative procedure without many of the safeguards provided in courts of law, the UDRP is only intended for and only equipped to resolve clear cut cases of cybersquatting where there is no reasonable counter-narrative to the Complainant’s allegations of cybersquatting. A Panel may determine that in disputes that do not clearly favor one party over the other, the overriding consideration is the appropriate scope of the Policy such that such cases are best left to the courts which are equipped and intended to resolve unclear cases.

Likewise, Respondents should provide more than mere allegations to support their claims with appropriate levels of documentary and other evidence.

In assessing whether a party’s allegations have met the balance of probabilities standard, the Panel must rely on evidence. It must disregard conclusory allegations unsupported by evidence. To allow a party to merely make factual claims without any supporting evidence would essentially eviscerate the requirements of the Policy as both complainants and respondents could simply claim anything without any proof. For this reason, Panels have generally dismissed factual allegations that are not supported by any bona fide documentary or other credible evidence.

Additional Information

Relevant Decisions

OneTab Ltd v. Ankit Oberoi, WIPO No. D2024-2412, <onetab.com>, 3-member, Denied

On the record before it, the cumulative weightings of the factors for either Party are so close that the Panel cannot say with confidence that either outweighs the other. The Panel’s view is that it would require the evidentiary tools available to a court having greater probative capacity such as discovery, cross examination, subpoenas, criminal sanctions for perjury etc., to decide which of the Parties’ positions is the more likely. Given that the burden of proof is on the Complainant, the Panel finds the third element of the Policy has not been sufficiently established. However, this should not be understood as an approval of the Respondent’s actions, but rather a consequence of the Panel’s view, on the record before it, that this case is better suited to court adjudication.

MARLINK SA v. ahmed mahmoud fakhr eldin, webeasystep, WIPO D2024-1591, <msarlink.com>, Denied

Complainant has not provided enough information about the renown of its mark or the extent of its activities in Egypt (or the Arabic-speaking world) to lead the Panel to conclude that Respondent probably targeted Complainant’s mark. The Panel is not saying that it accepts at face value Respondent’s largely uncorroborated explanation for registering the Domain Name, but Respondent’s account does not appear implausible on its face or contradicted by anything else in the record. Again, because the burden of proof rests with Complainant in this proceeding, the lack of evidence on both sides here compels a denial of this Complaint.

Young Pharmaceuticals, Inc. v. Xiaopeng Zhou, WIPO D2024-1699, <young.com>, 3-member, Denied, RDNH

An asserting party needs to establish that it is more likely than not that the claimed fact is true. An asserting party cannot meet its burden by simply making conclusory statements unsupported by evidence. To allow a party to merely make factual claims without any supporting evidence would essentially eviscerate the requirements of the Policy as both complainants and respondents could simply claim anything without any proof. For this reason, UDRP panels have generally dismissed factual allegations that are not supported by any bona fide documentary or other credible evidence.

Universal Music Group N.V. and Universal City Studios LLC v. JT U Animation / U Animation, Forum FA2402002085375, <universalmusicgroup.com>, 3-member, Transfer

The Panel does not accept the Respondent’s claim that Respondent has presently or ever held trademark rights in the THE UNIVERSAL MUSIC GROUP. For the reasons set out in the Complaint the Panel finds that the evidence submitted by the Respondent in support of this contention to be a series of clumsy and obvious forgeries…There is simply no independent, verified or trustworthy evidence to support the contention that Respondent acquired the Domain Name for $250,000 from Universal Studios in 2003 and there is a weight of evidence casting doubt on this claim.

Silver Point Capital, L.P. v. Elisha Finman, Forum FA2401002079392, <silverpointequity.com et. al.>, Denied

This is clearly a borderline case. However, noting that a panel has to be positively satisfied that a respondent lacks rights and legitimate interests under this element of the Policy, in my evaluative judgement of the evidence before me, I am not satisfied that the Respondent lacks rights and legitimate interests. I consider that this question of fact is better resolved in a venue that has explicit forensic powers which a Panel under the Policy does not have.

Katepal Oy v. taeho kim, Dzone Inc., WIPO D2023-5188, <katepal.com>, Denied

Furthermore, while the Panel finds the Respondent’s explanation for its registration of the disputed domain name to be somewhat improbable, it cannot be definitively excluded. While the Respondent, too, has failed to exhibit relevant evidence in this regard, it is the Respondent who must receive the benefit of the doubt in circumstances where the Complainant has not been able to produce requisite historical evidence (in part no doubt due to the lapse of time).

Tencent Holdings Limited v. He Huang, Working Venture Capital Inc., WIPO DAI2023-0024, <tencent.ai>, 3-member, Transfer

In all of these circumstances, the Panel finds on the preponderance of the evidence that the Respondent is not making and has not made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods and services, and that the alleged coin collecting website is more probably than not a pretext for cybersquatting. The Respondent has not rebutted the Complainant’s prima facie showing.

West Technology Group, LLC v. charafa saliou, charafa saliou, WIPO D2023-4617, <globnewswire.com>, 3-member, Transfer

Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.

The Vanguard Group, Inc. v. Pieter van Staden / Jobz4Afrika (Pty) Ltd, Forum FA2202001983161, <vanguard-wealth.com>, Denied

Fourth, the Complainant states that its VANGUARD trademarks are famous, but did not submit any evidence of this statement. It might well be that these trademarks have a certain fame or status, but it is up to the Complainant to provide evidence thereof. The Panel finds that the Complainant did not provide sufficient argumentation or evidence that the Respondent had knowledge or should have had knowledge of its trademark rights. In particular, the Complainant did not substantiate that its trademarks are “well-known” or “famous” trademarks, let alone in South-Africa, i.e., the home country of the Respondent.

The burden of proof under Paragraph 4(a)(ii) of the Policy lies ultimately and predominantly with the Complainant and the Panel believes that the Complainant did not meet this burden. The Panel emphasises that it is bound by Article 15 (a) of the Rules: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

Sberbank of Russia v. Enge Li Enge Li, CAC-UDRP-104070 (2022), <sbergames.com>, Denied

The Complainant mentioned about having operations in China but did not include any supporting evidence. Furthermore, Complaint mentioned that Respondent is parasitizing with the disputed domain name on Sberbank’s reputation and its well-known among the consumers, however, there is no evidence about the famous or well-known status of Complainant’s trademarks.

It might be the case that the Sber trademarks are in fact “well-known” or “famous” but the Complaint has the obligation to formulate such claim in a convincing manner and bring the evidence to support the allegation.

The Indian Hotels Company Limited v. Roger Price, WIPO D2018-2325, <indianhotels.com>,3-member, Denied, RDNH

The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. The touchstone, however, is that an asserting party cannot meet its burden by simply making conclusory statements unsupported by evidence. To allow a party to merely make factual claims without any supporting evidence would essentially eviscerate the requirements of the Policy as both complainants or respondents could simply claim anything without any proof. For this reason, Panels have generally dismissed factual allegations that are not supported by any bona fide documentary or other credible evidence.

Teva Pharmaceutical Industries Ltd. v. SecureMedical, CAC-UDRP-101610 (2017) <tevasildenafil.com>, 3-member, Transfer

The Panel notes that the Respondent claims that it intends to use the disputed domain name for comparing the sildenafil-based generic medication of the Complainant with other (branded) sildenafil-based medication. However, the Panel also notes that the Respondent fails to provide any evidence of such intended use.

The Panel furthermore finds no evidence of the Respondent’s use of (or demonstrable preparations to use) the disputed domain name in connection with a bona fide offering of goods or services or indeed evidence of preparations to establish a separate comparison website.

Digest Commentary

Digest Vol. 4.17 <trimble.ai>, Denied
Digest Vol. 4.5 <knp376.com>, Denied, RDNH
Digest Vol. 3.9 <billionairebay.com>, Denied
Digest Vol. 2.48 <MashaBearCafe .com>, Transfer
Digest Vol. 2.45 <cloverskypay .com>, Transfer
Digest Vol. 2.34 <Palex .com>, Denied
Digest Vol. 2.17 < redmito .com>, Transfer
Digest Vol. 2.8 <maaden.com>, Transfer with a dissenting opinion