The article “The Challenge of Properly Applying Telstra” discusses the complexities and issues related to the “passive holding” doctrine under the Uniform Domain-Name Dispute-Resolution Policy (UDRP). It examines how panels determine “bad faith” when a domain remains inactive, especially in cases where the respondent does not provide a defense.
Key points include:
1. Passive Holding and Bad Faith: The doctrine, originating in the Telstra case, requires a clear finding of bad faith registration before considering non-use as evidence of bad faith. Recent cases show inconsistent applications, with some panels inferring bad faith solely from inactivity without sufficient supporting evidence.
2. Complainant’s Evidence Burden: A complainant must provide robust evidence, such as trademark search results or proof of no legitimate third-party use. However, such comprehensive submissions are rare, leading to poorly substantiated complaints.
3. Panelist Responsibility: In cases lacking evidence, panels face a dilemma: conducting independent research, requesting additional information, or dismissing the case. Independent research can be problematic as it risks undermining impartiality and procedural fairness.
4. Default Judgments: When respondents fail to appear, panels often lean toward the complainant’s assertions. This raises concerns about whether the absence of a defense lowers the complainant’s burden of proof.
The article emphasizes the importance of adhering to UDRP standards and ensuring fairness, especially when transferring domains based on incomplete evidence or flawed reasoning.
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