Even if a Respondent fails to file a response to a UDRP Complaint, a Complainant can count on losing if it fails to provide basic evidentiary support. For example, in the recent case of Epitec Inc. v. EPITEC a National Arbitration Forum panel rejected the complaint on the basis that the Complainant failed to provide even basic support for its claims that the Respondent had acted in bad faith and failed to have legitimate rights in the domain name www.epitec.com.
First, the panel explained that Complainant failed to adequately explain how the Respondent’s alleged non-use of the domain name since 2003 equated to abandonment of any rights it might have had in the domain name. In this connection the Panel explained:
“[t]here is little elaboration of that [Respondent’s] history and so a second question arises as to whether (i) in terms of paragraph 4(c)(i) of the Policy, that use established Respondent with a right or legitimate interest in the domain name, or (ii) that allegedly competing use was somehow not in good faith and showed that Respondent lacked rights or legitimate interests.”
The Complainant attached an e-mail chain between the parties where the Respondent stated that it intended to use the domain in the future. This evidence actually hurt the Complainant’s position because it showed that the Complainant had an intention to use it in the future and did not affirmatively show that the Complainant had in fact abandoned its rights.
Second, the Panel noted that without evidence that the Respondent did not have rights in the domain because of non-use, there was no adequate explanation as to how the Respondent could have acted in bad faith when it registered the domain in 1998. Although Complainant alleged that not having the domain name disrupted its business, because its customers typically visited the Respondent’s website assuming it was owned by Complainant, the Panel looked at the time lag/delay by the Complainant as a key mitigating factor that watered down the value of this argument:
“[c]ertainly, there is no explanation in the Complaint as to why a business established in 1978 delayed until 2012 to contact the owner of a domain name which was so manifestly adapted to suit its business or why Administrative Proceedings were not brought before now if the domain name was considered to be an abusive registration.”
Lastly, the Panel intimated that if the Respondent had filed a response and argued that the Complainant was attempting to reverse hijack the www.epitec.com domain it may have been inclined to find reverse hijacking on the basis that there was no adequate proof that the Respondent did not have rights to the domain and that the Complainant’s delay in filing a UDRP claim, as noted above, was substantial enough to infer that it was acting improperly under UDRP law.
In sum, the proof offered by the Complainant was sparse and what little evidence it did offer undercut its argument that the Respondent did not have rights in the domain name or that it had acted in bad faith when it registered the domain in 1998. Simply filing a UDRP complaint is no guarantee of victory, even if the Respondent does not answer, particularly if the filing party fails to provide basic support/evidence for its positions...