The Role of Credibility in a UDRP Proceeding

    UDRP complaints are resolved solely on papers without benefit of discovery and with no right of confrontation. For this reason the pleadings and evidence must be developed with as much care and be as complete as a motion for summary judgment in a civil action. It is a mistake to discount credibility even though there is no appearance in the flesh. Parties make their appearance in submissions and can be judged for their candor or lack of it, the plausibility of their arguments and by the evidence they produce or suppress.

    Credibility played a key role in a recent case involving Turkish parties. The 3-Member Panel in Hurriyet Gazetecilik Ve Matbaacilik A.S. v. INFOMED, D2008-0127 (WIPO March 30, 2008) (<hurriyet.net>, Complaint dismissed) listed four factors weighing in favor of the Respondent, one of which is "[t]he fact that the Respondent has a track record of using his domain names in connection with his interests." The Respondent provided sufficient evidence to persuade the Panel that he was a respected professor with a variety of interests.

    Credibility issues arise for both complainants and respondents. In another recent case, Jay S. Cohen d/b/a Elite Cruises v. Smoking Domains, LLC., FA0803001155799 (Nat. Arb. Forum May 7, 2008), the Complainant alleged that it had rights to ELITE CRUISES and disclosed a USPTO serial number but failed to disclose that its application was denied. One Panel cautioned that an indefensible position "necessary harms [a party’s] credibility. R.T. Quaife Engineering, Ltd. v. Luton, D2000-1201(WIPO November 14, 2000): 

Parties would be better advised to admit facts or conclusions that are not genuinely in dispute and instead focus their arguments on the true areas of disagreement.

    The Panel in Interactive Television Corporation v. Noname. Com, D2000-0358 (WIPO June 26, 2000) was "troubled by Complainant’s apparent lack of candor in not disclosing the Trademark Office Actions issued prior to the filing of this Complaint." In Fiji Rugby Union v. Webmasters Limited, D2003-0643 (WIPO December 24, 2003) the Panel Majority stated that although the case was "finely balanced" it was able to "draw inferences from the manner in which the Respondent has argued its case, retreated from formal statements of fact and generally been less than forthcoming." In Greyson International, Inc. v. William Loncar, D2003-0805 (WIPO December 3, 2003), the Panel noted that the Respondent "has presented a plausible explanation ... and Complainant has offered no evidence to the contrary."

    Lack of evidence allows the Panel to draw adverse inferences against the party with the burden of proof or production. Lacuna in the evidence can be equally damaging to a party’s contentions. Questionable candor undermines a party’s argument. On the other hand, genuinely disputed factual issues are for the alembic of confrontational discovery, what the Panel calls the "chastening process of cross-examination", and are outside the scope of the UDRP.