Parties controlling evidence must produce it to establish their contentions. Non production leads to the conclusion that the asserted proof does not exist. Just as it is expected that a complainant prove it has a trademark right to maintain a UDRP proceeding, the respondent must demonstrate it has a right or legitimate interest in the domain name. The Respondent in Referral Experts LLC v. Cornerstone Marketing Group, D2010-0439 (WIPO May 17, 2010) did not formally respond to the complaint, but it answered a cease and desist letter through counsel in which it stated “that the principal of the Respondent company had carried on business in Canada as an image consultant providing advice on matters such as self esteem, personal style, wardrobe selection and career consulting, and had done so since 1988 under the name and style ‘Looking Your Best.’ The letter stated that the Respondent’s website was created in approximately 2002.” The Complainant has a trademark for LOOKINGYOURBEST.COM issued by the USPTO in 2005 and LOOKING YOUR BEST in 2010. The disputed domain name is <lookingyourbestinc.com>.
If the facts set forth in the answer to the cease and desist letter are true, the Respondent in Referral Experts appears to have priority in the common phrase incorporated into the domain name. However, an attorney’s letter is not evidence of the truth of the statements made therein. While defaulting in response to the complaint is not dispositive of bad faith, it may be (and in the case of Referral Experts is) conclusive with respect to rights or legitimate interests in the disputed domain name. The respondent must appear and put its evidence on the table if it expects to counter the affirmative evidence in the record.
The addition of “inc” to the trademark does not distinguish the domain name. “It is well established that in the determination of confusing similarity under the Policy, additional words or letters such as ‘inc’ are not usually distinguishing” and functional affixes (“www”) and suffixes (any generic TLD) are disregarded. Nevertheless, “the Respondent has asserted, in effect, although without any reference to the Policy or to any impending proceeding under it, that it has used a name corresponding to the disputed domain name for a bona fide offering of goods or services since before notice of the dispute, such as might satisfy paragraph 4(c)(i) of the Policy. It also asserts in effect that it has been commonly known as a business by the disputed domain name or a similar name.”
Priority in commercial use of a term later registered as a trademark will defeat the complainant. Assertions of fact are merely preface to evidence. This is what I claim; this is the evidence that supports it. But, the Respondent in Referral Experts was silent on the record. “Neither in [the letter responding to the cease and desist] nor to this proceeding has the Respondent adduced any evidence, such as original telephone or business directory entries, photographs, brochures, correspondence or invoices, of matters that it asserted vigorously and that one might expect to have been factually verifiable.” Failure to offer verifiable proof controlled by the party is tantamount to admitting that the proof does not exist.
While the Respondent may indeed operate a legitimate business for the supply of goods and services “assisting people to ‘look your best’ it is not entitled to use the Complainant’s trademark to divert Internet users to another website that offers competing services. This violates paragraph 4(b)(iv) of the Policy. “It may reasonably be anticipated that a proportion of Internet users looking for the Complainant’s trademark, through a search engine or otherwise, may find their way to the website corresponding to the disputed domain name, and may be confused initially into believing it to have the endorsement of the Complainant.” Since the Respondent’s redirected website is commercial the registration and use of the domain name are in bad faith.
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