0.8: Inferences in No Response Cases

0.8 Inferences in No Response Cases

Even in no-response cases, Panels must evaluate the allegations and the evidence presented by the complainant to determine whether the Complainant has proven each of the Policy’s three elements. Panels have denied over 1,500 Complaints – even where the Respondent has not responded – because of a Complainant’s failure to meet its burden of proof. Moreover, in some of these no-response cases RDNH was found, thereby demonstrating that Panels must take care in carefully evaluating cases no matter whether a Response is filed or not.

Material factual allegations must be proven and not simply alleged, even in no-response cases. The problem with drawing a rebuttable inference of bad faith where the Respondent has not appeared is that it nearly assures a finding of bad faith registration in every no-response case since after the Respondent fails to rebut the allegation of lack of legitimate interest, bad faith can be imputed as a result. The guidance provided in Rule 14 that a Panel may make inferences “as it considers appropriate” from a respondent’s failure to appear does not grant permission to Panels to make speculative inferences that are not grounded in solid evidence. Panels must only draw reasonable inferences that are supported by evidence rather than inferences drawn from a mere failure to respond.

Additional Information

Relevant Decisions

Italo – Nuovo Trasporto Viaggiatori S.P.A. v. Mike Fuller, WIPO D2024-5225 <italotrain.com> and <italotrains.com>, 3-Member, transfer

The Respondent has not submitted a Response and has not brought forward any arguments in its defense. As mentioned in the section on rights and legitimate interests, the Panel is aware that the Respondent has raised numerous arguments in the Prior Proceeding, but has refrained from doing so in the present proceeding, so there is no basis to assume that the Respondent still maintains them. Considering this, the Panel concludes that it is not necessary or appropriate to take into account and consider here the arguments raised by the Respondent in the Prior Proceeding.

Serveng Civilsan S/A. Empresas Associadas de Engenharia v. RSQ Designs, WIPO D2024-5091 <serveng.com>, Transfer

The Panel draws an adverse inference from the Respondent’s failure to take part in the present proceeding where an explanation is certainly called for.

Mediacom Communications Corporation v. DANIELE RUSSO / MEDIACOM PAY S.R.L., Forum FA2402002084217, <mediacom-pay.com>, Denial without prejudice

Respondent has replied neither to the Complainant nor to the Procedural Order. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. In the instant case, the Panel does not consider it appropriate to draw substantive inferences from Respondent’s failure to reply.

Sanofi v. Privacy Service Provided by Withheld for Privacy ehf / Matt Gordon, Monogram Naming, WIPO D2022-1610 <initiv.com>, Denied, RDNH

A respondent default is not necessarily an admission that the complainant’s claims are true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). In certain cases, e.g., involving wholly unsupported and conclusory allegations advanced by a complainant, panels may find that – despite a respondent’s default – a complainant has failed to prove its case.

Compass Banca S.p.A. v. Steve Quinn, CAC-UDRP-104395 (2022), <compass.computer>, Denied

A respondent’s default does not automatically result in the transfer of the domain name to the Complainant (WIPO Overview 4.3: “Noting the burden of proof on the complainant, a respondent’s default (i.e., failure to submit a formal response) would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true. In cases involving wholly unsupported and conclusory allegations advanced by the complainant, or where a good faith defense is apparent (e.g., from the content of the website to which a disputed domain name resolves), panels may find that – despite a respondent’s default – a complainant has failed to prove its case.”).

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

Here, although Respondent has failed to respond to the complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true.

GROUPE CANAL + v. Danny Sullivan, CAC-UDRP-102809 (2019), <studiocanale.com>, Denied

Although no Response has been filed, considered that the burden of proof rests with the Complainant and that the applicable standard of proof in UDRP cases is the “balance of probabilities” or “preponderance of the evidence” (i.e. a party should demonstrate to a panel’s satisfaction that it is more likely than not that a claimed fact is true – WIPO Overview 4.2), the Panel, based on the poorly supported and conclusory allegations of the Complainant, retains that the Complainant has not prevailed on all three elements of the paragraph 4(a) of the Policy and, therefore, rejects the Complaint.

Digest Commentary

Digest Vol.5.10 <lsac.com>, Transfer

Digest Vol.5.6 <serveng.com>, Transfer

Commentary: Cohen and Muscovitch, “UDRP Panelists: Getting the Standard Right Where No Response is Filed”, CircleID, 2019)