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UDRP Panelists: Getting the Standard Right Where No Response is Filed

Zak Muscovitch

Applying the Incorrect Evidentiary Standard in Default Cases Can Result in Unjustified Transfers

Over three-quarters of the more than 55,000 UDRP cases decided since 1999 have been undefended.[1] Requiring adequate evidentiary support of the complainant's allegations in disputes where the respondent has not filed a response, is therefore critical for producing just outcomes under the UDRP.

While most UDRP disputes involve clear cybersquats that are indefensible, a significant number involve domain names that are not clearly cybersquats, such that the justification for a requested transfer may be questionable. For example, some undefended domain names can easily be identified as common descriptive or generic terms or are potentially suitable for many legitimate uses. Such a domain name may be the subject of a UDRP complaint simply because it is desirable, not due to any violation of the Policy. Panels, therefore, ought to ensure that allegations in a complaint are adequately supported by evidence even when the respondent fails to file a response, in order to avoid an unjustified transfer.

Over the years, some panelists have apparently relied upon an incorrect interpretation of the UDRP that purports to authorize transfers in undefended disputes in reliance on factually unsupported or boilerplate, generalized allegations. Such panelists have been inadvertently led astray by unclear Rules regarding no-response cases and by a prevalent misreading of an early UDRP decision concerning the domain name, talk-city.com. The decision in the talk-city.com dispute has been routinely misunderstood as supporting a low evidentiary burden in undefended cases.

Those panelists who have applied a lower evidentiary burden in no-response cases indirectly encourage complainants to file baseless or faulty complaints in the hope that the respondent will not defend, and that the panel will order a transfer despite inadequate evidence of trademark rights, bad faith, and a respondent's lack of legitimate interest. Just outcomes under the UDRP require that allegations be proven even when the respondent fails to appear.

Allegations Must Be Proven

The Policy sets forth a three-part test to determine whether a transfer is justified and requires that "the complainant must prove that each of [the] three elements are present."[2] Even in no-response cases, therefore, 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. As stated by Panelist David Bernstein: "even though the Respondent defaulted, it is still Complainant's burden to prove that Respondent lacks rights or a legitimate interest in the disputed domain name".[3] Similarly, in another no-response case, Bernstein held that:

Complaint has shown that it cannot prove, by a preponderance of the evidence, that Respondent registered the Domain Name in bad faith… The burden is on Complainant to prove that this is a case of abusive cybersquatting and Complainant has failed to sustain that burden in this case.[4]

Maintaining the burden of proof on the complainant even in a no-response case is consistent with the consensus view articulated in WIPO's Jurisprudential Overview 3.0:

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.[5]

Panels have denied over 1,500 complaints[6] even when the respondent has defaulted due to a failure by the complainant to meet its burden of proof.[7] Reasons for such denials include the Complainant's failure to show any registered or even any common law trademarks,[8] the Complainant's admission that there was a contractual relationship wherein the Respondent had an interest in the domain name,[9] where there is an absence of evidence that the Respondent targeted the Complainant,[10] where the website associated with the Domain Name shows non-commercial usage of a common descriptive term,[11] or where the Complainant failed to prove registration and use in bad faith because the Complainant did not demonstrate trademark rights prior to the registration of the domain name by the Respondent.[12] It does not, therefore, follow from the absence of a response, that every UDRP complaint contains credible allegations, such that a transfer is merited under the Policy.

In some disputes, despite the respondent's failure to file a response, not only have panels rejected complaints, but have at times found the complainant guilty of Reverse Domain Name Hijacking (RDNH). In Mister Auto SAS v. Wharton Lyon & Lyon, WIPO Case No. D2018-1330, August 3, 2018 (misterauto.com), Panelist John Swinson noted that "the onus of proving [the three UDRP] elements remains on the Complainant even though the Respondent has not filed a Response", and that "the Respondent's failure to file a Response does not automatically result in a decision in favor of the Complainant".[13] As the disputed domain name's registration pre-dated the Complainant's existence and trademark, Swinson rejected the Complainant's baseless allegations of bad faith registration and instead entered a finding of Reverse Domain Name Hijacking. In Spy Optic, Inc. v. James Lee, WIPO Case No. D2013-1411, October 1, 2013, (spyopticsoutlet.com), Panelist Richard Lyon determined that where a complainant's material allegations are identified as being contradicted by the complainant's own evidence, RDNH can be found: "If the face of the complaint itself demonstrates a settled reason why the complaint must be denied, a panel may make a finding of RDNH".[14]

Likewise in M. Corentin Benoit Thiercelin v. CyberDeal, Inc., WIPO Case No. D2010-0941, August 10, 2010, (virtualpoint.com),[15] even in the absence of a Response, Panelist Tony Willoughby found that the Complainant's "flagrantly insupportable claim" that the disputed domain name was registered in bad faith when the registration preceded any trademark rights of the Complainant was deserving of a finding of Reverse Domain Name Hijacking. In Insight Energy Ventures LLC v. Alois Muehlberger, L.M.Berger Co.Ltd., WIPO Case No. D2016-2010, December 12, 2016, (powerly.com),[16] despite the lack of a formal response, Panelist John Swinson found that the Complainant had "asserted without any supporting evidence that the Disputed Domain Name was registered in bad faith" and made a finding of RDNH.

The above RDNH findings are among several RDNH decisions issued despite the respondent's failure to appear.[17] These instances of complainants making allegations that are clearly baseless, even in the absence of a response, demonstrates the need for panelists to require evidentiary support for each material allegation and highlights the danger of any guidance suggesting that a panel should uncritically accept a complainant's allegations in a default case, as doing so may result in a panel's unwitting approval of the hijacking of a lawfully registered domain name.

In the UDRP, as in any credible adjudication system, allegations must be proven. As expressed by Panelist Richard Lyon: "Few things are more settled, or more fundamental under the Policy and Rules, than the requirement that material factual allegations must be proven, not simply alleged".[18]

A Mistaken Approach to Undefended Disputes

Despite this bedrock principle that allegations must be proven, there is a long line of UDRP cases holding that when a respondent fails to file a response, material factual allegations need not actually be proven. As will be discussed below, certain panelists have been under the apparent misapprehension that the burden of proof ceases to rest on the complainant where the respondent fails to submit a response and that instead a complainant's allegations can be accepted despite inadequate supporting evidence.

The Rules themselves, which operate in conjunction with the Policy, have unfortunately undermined the otherwise clear language in the Policy that the complainant must prove its case. The Rules state that in the absence of a Response, a panel is entitled to decide the case based upon the complaint alone[19] and is entitled to draw inferences "as it considers appropriate" from a party's failure to participate in the process.[20] This raises the critical question as to what is the appropriate inference to draw from a respondent's failure to appear.

Two of the most frequently cited UDRP decisions for guidance in answering this question are Vertical Solutions Management, Inc. v. webnet-marketing, inc., NAF Claim Number: FA0006000095095, July 31, 2000 (vsm.com)[21] and Talk City, Inc. v. Robertson, WIPO Case No. D2000-0009, February 29, 2000 (talk-city.com) issued by David Bernstein as sole panelist.[22] These two cases have appeared side-by-side in many Forum decisions from the early days of the UDRP as providing the appropriate guidance for deciding a dispute where the respondent defaults. These cases have therefore figured prominently in panelists' views of the appropriate standard of evidence required in no-response cases.

Vertical Solutions holds that in the absence of a response, "all reasonable inferences of fact in the allegations of the Complaint will be deemed true" (emphasis added). This language appears to be derived from Rule 14(b), which speaks of drawing "appropriate" inferences from a failure to participate in the UDRP process but has qualified "appropriate" inferences as necessarily being confined to those which are "reasonable". What constitutes an appropriate or even a reasonable inference, however, is not clear from the Vertical Solutions citation, nor is it spelled out in the Rules, nor is it entirely clear from the established case law, such that Vertical Solutions despite being routinely cited for its guidance offers little in the way of helpful guidance.

Contrasted with Vertical Solutions's vague standard of "reasonable inferences", Talk City is cited for the principle that "In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”. This purported standard appears to eliminate any requirement that the complainant substantiate its allegations with supporting evidence, such that the mere default of the respondent is sufficient to establish its guilt. This purported holding is in direct conflict with the requirement in the Policy that the complainant must prove its allegations. It is also in direct conflict with other decisions issued by David Bernstein, the sole-panelist in Talk City, who, as noted above, has consistently held that the burden of proof rests with the complainant even when the respondent defaults.

In nearly every dispute handled by the Forum in which the respondent fails to appear, Talk City is cited in the decision for the above-purported holding that it is "appropriate to accept as true all allegations of the Complaint". This citation appears in approximately two-thirds of all Forum published decisions, totaling over 15,000 cases dating from 2000 to the present. Talk City is quite possibly the most frequently cited decision in all of UDRP jurisprudence and has thereby influenced countless panelists.

There is a serious flaw in this citation of Talk City, however. The oft-quoted statement, "In the absence of a response, it is appropriate to accept as true all allegations of the Complaint," appears nowhere in the decision. The purported holding attributed to Talk City is instead a misquotation that distorts the genuine findings in the decision.

The actual language of the Talk City decision is subtly but importantly different:

Given Respondent's failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint. The Rules expressly provide that the Panel "shall draw such inferences" from the Respondent's failure to comply with the rules "as it considers appropriate." Rule 14(b). Moreover, when a respondent defaults, the Rules direct the Panel to "proceed to a decision on the complaint." Rule 14(a); see also Rule 5(e). Furthermore, the Panel is charged with rendering its decision "on the basis of the statements and documents submitted." Rule 15(a).[23]

Rather than standing for an entirely different evidentiary standard than that in Vertical Marketing, the Talk City holding is fully consistent with the Vertical Marketing standard that a complainant's allegations are not to be blindly accepted but rather the panel is to use its judgment to reasonably "draw such inferences" "as it considers appropriate." By shifting the meaning and the placement of the word "appropriate", the misquotation transforms the holding in Talk City from one that properly held that the panel should exercise its independent judgment to draw appropriate inferences into an improper holding directing the panel that it is appropriate to accept all allegations, whether well founded or not.

Moreover, in understanding the findings in Talk City, it is crucial to note the unusual circumstances of that case. The Panel in Talk City received informal communications from the Respondent first indicating that the Respondent was "ready, willing and able to transfer" the disputed domain name and then later stating that it had already "taken steps to transfer the domain name" to the Complainant.[24] The panelist chose to accept as true all the Complainants allegations not merely because the respondent failed "to submit a substantive answer in a timely fashion", but with the knowledge from the Respondent's informal communications that the Respondent was consenting to the transfer.

The facts in Talk City are so exceptional that the case offers no useful precedential value for disputes in which the respondent has not consented to the transfer. It is unfortunate that so many panelists have relied so heavily on a decision that has no genuine precedential value in cases where it is cited. And it is even more troubling that its holding has been contorted to promote an evidentiary standard that undermines the integrity of the UDRP, when its actual holding is wholly consistent with UDRP principles and jurisprudence.

The Consequences of the Talk City Misquotation

The purported guidance in the Talk City citation that allegations need not be supported by evidence in no-response cases inserts unauthorized "default" provisions into the UDRP, which is antithetical to the UDRP framework. This mistaken guidance has unfortunately led some panelists astray.[25]

A number of decisions have been issued over the years citing Talk City in which disputed domain names are ordered transferred despite the failure of the complainant to support its allegations with solid evidence. In Tianrong Internet Products and Services, Inc. v. Josue da Silva, Forum Claim Number: FA0208000123866, October 22, 2002 (phonecalls.com) Panelist James Crary stated as follows:

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint").[26]

Apparently influenced by the Talk City misquotation, Crary ordered the transfer of the domain name phonecalls.com despite the absence of evidence that the Respondent registered the domain name to target the Complainant rather than due to the everyday meaning of "phone calls". The evidence presented by the Complainant was that the domain name was being used for non-infringing advertising and that it was being offered for sale to the general public, thereby demonstrating that there was no factual basis for the Complainant's allegations of bad faith. Nevertheless, Crary ordered the transfer of phonecalls.com apparently under the influence of the false standard articulated in the distorted citation from Talk City.

Similarly, in Enlightened, Inc. v. Nil, Forum Claim Number: FA050800054919, October 18, 2005, (enlightened.com),[27] Panelist Ralph Yachnin cited to Talk City while shifting the burden of proof from the Complainant to the Respondent. As it is impossible for the non-appearing Respondent to discharge this burden, Yachnin's approach becomes in effect a "win by default" for the Complainant:

Respondent did not provide evidence that would suggest that Respondent is holding the disputed domain name for any non-infringing purpose. Without an indication that Respondent registered the domain name with the intention of using it for a legitimate purpose, the Panel finds that Respondent's passive holding of the <enlightened.com> domain name for almost seven years constitutes bad faith registration and use under Policy ¶ 4(a)(iii).[28]

Yachnin ordered the transfer of a common dictionary word domain name, enlightened.com, despite an absence of infringing use and despite a total absence of evidence that the domain name had been registered because of the Complainant's mark. This case demonstrates how a misapplication and misapprehension of the appropriate standard in no response cases can lead to a troubling reversal of the well-established burden of proof on a complainant.

In Intercontinental Exchange Holdings, Inc. v. Dmitry Vasilev / Elmaco Ltd., NAF Claim Number: FA1612001709953, February 12, 2017, (the-ice.com), Panelist Debrett Lyons, although not citing to Talk City, adopted a similar approach as in Enlightened. Although no evidence was offered that the Respondent was aware of or was targeting the Complainant, Lyons found the Respondent guilty of acting in bad faith. Lyons did so by shifting the burden of proof from the Complainant to the Respondent, such that the Respondent was considered guilty unless it could demonstrate its innocence. This presented an insurmountable hurdle for the Respondent due to its failure to appear:

Noticeable by its absence is any use of THE ICE as either a trademark or in some other way [by the Complainant]...it might be questioned what evidence exists that Respondent here targeted Complainant at the time of registration… [THE ICE] has a trademark "ring" to it. Enough so, the Panel finds, that its adoption by Respondent required some explanation in these Administrative Proceedings. None was given and since, as indicated, the operation of paragraph 4(b)(iv) might only be suspended on clear evidence of good faith registration, the Panel finds registration and use in bad faith under paragraph 4(b)(iv) and accordingly finds that Complainant has satisfied the final element of the Policy.[29]

The problem with drawing a rebuttable inference of bad faith where the respondent has not appeared means 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. This creates a domino effect where the complainant's possession of trademark rights, however tenuous, leads to an unrebutted inference of lack of legitimate interest, which in turn leads to an unrebutted inference of bad faith, such that the three-part test required to justify a transfer collapses into what amounts to a one-part test of whether the complainant has met the very low bar of having some trademark rights.[30]

Relying Upon Irrelevant Cases in an Attempt to Support Unjustified Inferences

The vague admonition in the Rules that panels draw appropriate inference from the respondent's failure to appear is another source of error in no response cases as it offers an apparent justification to make speculative leaps by merely asserting such inferences are "appropriate" and thus in accordance with the Rules. This willingness to rely upon speculative leaps of inference in no-response cases may also have been influenced by the disregard for evidentiary standards expressed in the Talk City mis-citation.

Instances of transfers ordered in reliance on inferences that are not grounded in adequate evidence can often be identified by looking at the cases cited in support of the panel's findings. An indication that an inference is neither "appropriate" nor "reasonable" is when the cases cited for support rely upon entirely different and more robust evidentiary support than in the present case. The difficulty in finding cases to cite as precedent that have similar facts is a warning flag to the panel that it is likely making inferences that are overly speculative and are not adequately supported by the evidence.

Panelist Neil Brown ordered the disputed domain name imi.com transferred in Irving Materials, Inc. v. Black, Jeff / PartnerVision Ventures, Forum Claim Number FA1710001753342, November 7, 2017.[31] The respondent did not appear. The Complainant is an aggregate materials company that had no registered trademark in IMI when the imi.com domain name was registered 23-years prior, in the early days of the commercial Internet. Brown apparently overlooked (or it was not drawn to his attention) that the Whois record showed that the Registrant's business name was "Internet Marketing Inc.", thereby suggesting that the Respondent had a legitimate interest in the domain name. Brown, in support of his finding that in 1994 the Registrant was aware of the unregistered rights in a common acronym of a company operating in an obscure industrial niche, cited to Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007)(univision.tv)[32] for its holding, in part, that "the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name". Yet Univision was a famous, distinctive mark when univision.tv was registered. Moreover, the respondent in that dispute acknowledged it was intentionally targeting the Univision mark for a parody website. As the circumstances that supported the bad faith finding in the univision.tv dispute are entirely lacking in the imi.com dispute, Brown's reliance on univision.tv highlights instead the apparent absence of evidence to support Brown's finding that imi.com was registered in bad faith. The decision in imi.com was heavily criticized[33] and the Respondent filed a Federal lawsuit seeking to prevent the transfer of the domain name and alleging Reverse Domain Name Hijacking under the Anticybersquatting Consumer Protection Act.[34]

In Zynex Medical, Inc. v. New Ventures Services Corp, Forum Claim Number FA1805001788042, July 2, 2018, (neuromove.com),[35] Panelist John Upchurch found registration in bad faith despite making no determination as to when the registration of the disputed domain name occurred. Neuromove.com was first registered in 2000, while the trademark relied upon by the Complainant was registered in 2012. This suggests that Upchurch made an unsupported inference in finding that the registration of the disputed domain name was in bad faith. To justify his finding that the Respondent had registered neuromove.com in bad faith, Upchurch cited to a decision concerning GoAlamo.club.[36] That decision relied upon evidence that the Respondent was a serial cybersquatter with a history of targeting the famous ALAMO mark. No comparable evidence was presented in the neuromove.com decision, thereby highlighting the lack of evidence to support an inference of bad faith registration.

In AREAS, S.A. v. Andres Sanchez Garcia, WIPO Case No. D2015-1482, November 9, 2015, (areas.com),[37] Panelist Alejandro Touriño ordered the transfer of the inactive 17-year-old domain name areas.com despite a lack of evidence to support a reasonable inference of either registration or use in bad faith. Lacking any evidence on which he could draw even a highly speculative inference of bad faith, Touriño instead held that it was the Respondent's failure to appear that in itself provided the necessary evidence of bad faith: "a failure to respond [sic] the Complaint can be evidence of bad faith".

Yet the kivotos-hotel.com dispute[38] that Touriño relied upon is readily distinguishable from the areas.com dispute, as it involved two competing Greek hotels, one of which registered its competitor's distinctive brand to drive traffic to its own website, such that the Panelist found the appearance of guilt to be so compelling that it required an explanation from the Respondent. The lack of a similar factual background in the areas.com dispute highlights that Touriño's finding of bad faith from a mere failure to respond was unjustified and did not support the troubling transfer of an aged common word domain name that was put to no infringing use.

The guidance providing in the Rules that a panel 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. In the above cases, the Panels did not require that the Complainants prove their allegations. Instead the Panels accepted the allegations by making inferences that were not supported by the evidence presented in the case. That the facts in the cases that they cited as support were entirely different and more compelling than the facts in their own cases should have suggested to the Panelists that the inferences they were making were not well founded.

The Proper Approach is to Only Accept Allegations Adequately Supported by Evidence

From the earliest days of the UDRP, the treatment of no-response cases has suffered from an unclear and often misapprehended approach. As the great majority of UDRP disputes are undefended, this incorrect approach has become widespread throughout UDRP jurisprudence. The holding in the most heavily relied-upon decision for the evidentiary standard in no-response cases, Talk City, has been misread and misapplied, directing panelists to accept unsupported allegations of bad faith as true whenever no response is filed. This error in undefended cases has remained uncorrected in over 15,000 citations for over 18 years. The Rules permitting panelists to draw appropriate inferences from a respondent's failure to appear has likewise been misapplied to justify inferences that do not follow from the evidence.

Appropriate inferences well supported by the evidence, accurate citation, and correct application of UDRP precedent are critical to the integrity and authority of the UDRP Policy, in both defended and undefended cases alike. Reflexive and unwarranted transfer of domain names in undefended cases, based on unsupported allegations, undermines confidence in the process and rewards misuse of the UDRP. The Policy and good practice demand careful review of all complaints for sufficient evidentiary support.

[1] Data from UDRP.tools, which incorporates cases from WIPO, the Forum and the Czech Arbitration Council.
[2] See Paragraph 4(a) of the Policy (https://www.icann.org/resources/pages/policy-2012-02-25-en)
[3] See https://www.wipo.int/amc/en/domains/decisions/... (sermosucks.com)
[4] See: http://www.adrforum.com/domaindecisions/... (everybodyrides.com)
[5] See: https://www.wipo.int/amc/en/domains/...
[6] UDRP.tools (n 1).
[7] See Paragraph 4(1) of the Policy; https://www.icann.org/resources/pages/policy...
[8] See for example, Mystery Tackle Box, Inc. v. John Connolly, NAF Claim Number: FA1812001819248, January 8, 2019 (ShopKarl.com) and Silver Streak Industries, LLC v. Vietze, Dan / Frederick Manufacturing, Forum Claim Number: FA1510001643236, November 23, 2015 (silverstreak.com)
[9] See for example, Thermotion, LLC v. ISIS, NAF Claim Number: FA1811001817477, January 2, 2019 (thermotion.com)
[10] See PCO AG v. Register4Less Privacy Advocate, 3501256 Canada, Inc., WIPO Case No. D2017-1778, October 30, 2017 (pco.com) and Zeca S.p.A. v. Whois Privacy Protection Service, Inc. / Domain Vault LLC, WIPO Case No. D2017-0158, April 3, 2017 (zeca.com), Olsen Holding GmbH v. Domain Admin, Whois Privacy Group / Domain Admin, Mighty Products, Inc., WIPO Case No. D2018-0568 (olsen.com). See also http://iplegalcorner.com/ignoring-or-failing-to-understand....
[11] See World Future Society v. S.F.P. Koopmans, BCG eBrpojects B.V., WIPO Case No. D2016-2347, January 13, 2017 (worldfuturesociety.com)
[12] See Zoyo Capital Limited v. A. Zoyo, WIPO Case No. D2018-2234, November 13, 2018 (zoyo.com), TDBBS, Inc. v. Mark Dimitrijevic, WIPO Case No. D2016-2111, December 2, 2016 (pawluxury.com), and Sanabul v. Wasea Qubadi, Forum Claim Number: FA1709001748693, October 18, 2017 (sanabul.com)
[13] https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2018-1330
[14] https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2013-1411
[15] https://www.wipo.int/amc/en/domains/search/text.jsp?case=d2010-0941
[16] https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2016-2010
[17] As identified at https://www.rdnh.com/rdnh-panels/
[18] Dean & Simmons, Sàrl and Heintz Van Landewyck S.à.r.l. v. Domain Capital / Moniker Privacy Services, WIPO Case No. D2015-0080, March 27, 2015 (fiesta.com), a defended case.
[19] See Paragraph 5(f) of the UDRP Rules.
[20] See Paragraph 14(b) of the UDRP Rules, ibid.
[21] http://www.adrforum.com/domaindecisions/95095.htm
[22] https://www.wipo.int/amc/en/domains/decisions/html/2000/d2000-0009.html
[23] ibid
[24] ibid
[25] Many panelists are not led astray by the incorrect evidentiary standard attributed to Talk City, even when the decisions they issue cite to Talk City. Talk City appears to be included as boilerplate language in Forum decisions when no response is filed, whether or not the Panelist relies on the guidance set forth in the purported quote from Talk City. Many decisions that cite to Talk City appropriately require that the complainant meet its burden of proof.
[26] http://www.adrforum.com/domaindecisions/123866.htm
[27] http://www.adrforum.com/domaindecisions/549191.htm
[28] ibid
[29] http://www.adrforum.com/domaindecisions/1709953.htm
[30] See dissent of Panelist Diane Cabell in dispute over ruggedswitch.com: “Today, many panels will find proof of all three of the Policy's elements simply from the existence of a mark of any kind with arguments that any mark is by definition identical or confusingly similar, that any use by any party other than a mark owner can only be illegitimate, and that bad faith necessarily exists if there is no legitimate interest. That takes us back to the beginning, which I find disheartening.” https://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0119.html
[31] http://www.adrforum.com/domaindecisions/1753342.htm
[32] http://www.adrforum.com/domaindecisions/1000079.htm
[33] See https://iplegalcorner.com/drawing-inferences... : "A similarly false inference was made in Irving Materials, Inc. v. Black, Jeff / PartnerVision Ventures"; https://domainnamewire.com/2017/11/08/valuable-imi-com...; https://domaininvesting.com/imi-com-udrp-decision-stunning/
[34] https://domainnamewire.com/wp-content/IMI.pdf
[35] http://www.adrforum.com/domaindecisions/1788042.htm
[36] http://www.adrforum.com/domaindecisions/1625332.htm
[37] https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2015-1482
[38] See https://www.wipo.int/amc/en/domains/decisions/html/2008/d2008-1003.html

By Zak Muscovitch, General Counsel, Internet Commerce Association
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