0.3: Independent Panelist Research

0.3 Independent Panelist Research

Panelists are not charged with investigating allegations. Rather, the Panelist has a much more modest duty; to decide a case based upon the evidence presented by the parties themselves. Where that evidence is found wanting, that is not the Panelist’s problem to solve, nor should they attempt to. Nevertheless, it is sometimes a Panelist’s duty and well within a Panelist’s ambit, to verify some basic factual allegations, such as the existence and content of a relied upon trademark registration and the existence and content of a website associated with the disputed domain name. Beyond that, a Panelist should be wary of wading into an inquisitorial approach to cases rather than relying upon the adversarial process.

For example, a Panelist should verify that a trademark registration remains valid and has not been cancelled or assigned, and that the Complainant is the true owner of the trademark. A Panelist should also ensure that the trademark registration does not claim a disclaimer or that it is on the U.S. supplemental register. When verifying the existence and content of a website associated with the Domain Name that is relied upon by the Complainant, the Panelist may also wish to visit the website to verify that the Complainant’s exhibits fully and accurately show the content. This may be particularly relevant to do when PPC advertisements are alleged, as more fully discussed below at Section 2.9.

Independent Panelist Research may be particularly appropriate in some cases where no response is filed, for example in order for the Panelist to satisfy itself of a Complainant’s allegation that it is the sole user of a particular trademark or that it has no other meanings or uses. Where a Complainant’s trademark is highly distinctive and well-known, independent verification of the Complainant’s allegation of exclusive use will usually not be required. However, where a trademark appears to possibly lend itself to other meanings or uses or where it is not well-known, a Panel may determine that it is appropriate to check publicly available records, such as trademark databases and Google searches. However, where such independent research results in information that sways the outcome of the decision, it is appropriate for the Panel to issue a Procedural Order presenting the results of the Panel’s research to the Parties and providing them with the opportunity to address this new evidence.

A Panel should exercise great caution in both the extent and the conclusions to be drawn from any independent research. A Panel should not make a party’s case for them if the case is deficient. Nor should the evidence uncovered by the Panel itself by determinative of the outcome without first providing both parties an opportunity to review and comment on the evidence that the Panel itself uncovered and that is not otherwise in the record

Additional Information

Relevant Decisions

Haemonetics Corporation v. Brent Bristow, WIPO D2024-2838, <harmonetics.com>, Denied

To determine whether it was appropriate to consider Respondent’s late response, the Panel conducted independent research which located several online media articles that indicated that Respondent was a musician, producer, and songwriter who had for several year operated a music studio in North Carolina, United States.

The Panel finds that Respondent’s response, though untimely, should be considered. The Panel therefore issued a Procedural Order that included hyperlinks to the articles that the Panel found and invited the parties “to comment on the relevance of the information in these links as they relate to the Second and Third element of the Policy.”

Mediacom Communications Corporation v. DANIELE RUSSO / MEDIACOM PAY S.R.L., Forum FA2402002084217, <mediacom-pay.com>, Denied

In its Procedural Order, the Panel stated that it had conducted an Internet search, from which it appeared that Respondent may be operating a legitimate business. The Panel requested Complainant to provide evidence showing that Respondent does not operate a legitimate business; and evidence, if any, that emails associated with the disputed domain name may have been used for phishing.

Ford Motor Company, Ford Motor Company of Canada, Limited v. Domain Admin, Whois Protection / Domain Administrator, Radio plus, spol.s r.o., WIPO D2022-0954 <fordirect.com>, 3-member, Denied without prejudice

From the Dissent: Falling into these three practical categories, the performed searches pursued the mentioned purpose of ascertaining, as reasonably possible, the fairness and accuracy of the Panel decision. They concerned matters of public record invoked by the respective parties and their results were shared with the Panel for consideration and potential inclusion in the decision; these results were further included in some of the various drafts on the table of the deliberations of the Panel (none of them final). In this process, the Presiding Panelist furthermore remained open (and offered) to the Panel granting the parties an opportunity to comment on the results, if it considered that appropriate, although the rest of the Panel declined such option.

From the Majority: After the Presiding Panelist presented the Panel with several draft decisions containing her extensive research, the undersigned stated more than once the firm opinion that it was unnecessary and incorrect to conduct that level of private research, effectively adding to one party’s case for them.

Rechtsanwälte Lampmann, Haberkamm & Rosenbaum Partnerschaft v. Privacy Department, IceNetworks Ltd. / Domain Admin, Whois Privacy Corp., WIPO D2021-1083, <ihr-law.org>, Transfer

The Response observes that the Complainant has failed to provide evidence of the content of the allegedly defamatory website at the disputed domain name. This is a reasonable point and the failure of the Complainant to supply a screenshot of the content of the website at the disputed domain name to which it objects, along with a translation into English, the language of the proceeding, is a surprising omission.

However, section 4.8 of WIPO Overview 3.0 notes that UDRP panels may undertake limited factual research into matters of public record if they consider such information useful in assessing the merits of the case and reaching a decision. This includes visiting the website linked to the disputed domain name, which the Panel has indeed reviewed and which does in fact appear to contain content critical of the Complainant, describing it at one point as “a trickster”.

Berry Fresh LLC v. Domain Administrator, See PrivacyGuardian.org / Ryan Cooper, WIPO D2019-3091, <berrysweet.com>, 3-member, Denied

Given that “berry sweet” appears to be a commonly used designation, the Panel in its discretion under its general powers pursuant to paragraphs 10 and 12 of the UDRP Rules has for the benefit of the Parties and the Panel conducted a limited Google search for the term “berry sweet.”

Digest Commentary

Digest Vol. 4.13 <mediacom-pay.com>, Denied

Digest Vol. 4.3 <hackensackmeridianhealth.xyz>, Denied

Digest Vol. 4.2 <thenaturesconservancy.org>, Transfer

Digest Vol. 2.47 <stylage.com>, Transfer

Digest Vol. 2.42 <fordirect.com>, Denied without prejudice