The Panel is satisfied that there no reason why it would be procedurally inappropriate to provide a decision. Nevertheless, it is necessary to address the status of the Response in this case and the procedural consequences that follow.
Initially, the Provider concluded that the Response was not administratively complaint. The Panel was not certain that this was the case and believed that this in turn raised a number of important questions including: (a) whether a Panel can and should take into account a purported response that the Provider has deemed to be administratively non-compliant; (b) whether it is appropriate for a Panel to consider issues of administrative compliance or whether these are issues that that are solely within the competence of the Provider; and (c) what constitutes a Response “in administrative compliance with Art. 5 of the Rules” for the purposes of paragraph 1(a) of Annex A of the Supplemental Rules.
As far as the Panel is aware, these issues have not previously been considered by any panel and the Panel concluded that it was both convenient and necessary for the Panel to do so in this case. The Panel, therefore, considered it appropriate having regard the complexity of these proceedings to make a determination under paragraph 1 (b) of Annex A of the Supplemental Rules. This notification was made on 17 June 2020 and was communicated to the Complainants on 19 June 2020, with the Complainants paying the relevant further fee on 25 June 2020.
The Rules expressly state that the Provider should check a Complaint for administrative compliance (paragraphs 4(c) to (e)). This is an important part of the Provider's role, since if the Complaint is not administratively compliant and that non-compliance is not corrected within 5 days, the Complaint is deemed withdrawn. This is also supplemented by section 5 of the CAC's Supplemental rules providing a mechanism for challenging the Provider's determination of non-compliance, and which involves the appointment of a single person panel to decide that issue. (Although this relevant provision refers to Article 4(b) of the Rules and it appears that this is a reference back to a pre-existing version of the Rules that applied to Complaints submitted up to 30 July 2015).
In contrast, there is no provision in the Rules for checking the administrative compliance of the Response. It is instead a process that appears implicit in the CAC Supplemental Rules, being mentioned in two places. One is simply a reference in the list of forms in Annex B to form "A12 Administrative Compliance Checklist - Response". The other is to be found at paragraph 1 at the end of Annex A of the CAC Supplemental Rules, which sets out the fees payable in CAC proceedings. This states as follows:
"1. The Complainant must pay the Additional UDRP Fees within 5 days of notification by the Provider or, after its appointment, the Panel when (a) a Response is filed that is in administrative compliance with Art. 5 of the Rules; ..."
So, essentially, the purpose of checking administrative compliance of a Response appears to be to assess whether an additional fee is payable by the Complainant.
Further, it seems that a conclusion on the part of the Provider that a response is non-compliant does not prevent a panel from taking its contents into account for the purposes of its decision. The response remains accessible on the Provider's system and can still be viewed by the panel (as happened in the present case). Further, there is nothing in the Policy, the Rules or Supplemental Rules that would stop the panel from considering that document. It could, therefore, be argued that the Provider's determination in this regard is not something that the panel should or needs to consider or second guess.
However, ultimately the Panel is of the view that it is appropriate for the Panel to consider whether the reasons given for non-compliance are truly administrative in nature or whether they stray into consideration of the substantive validity of any response.
In this respect, paragraph 10(d) of the Rules makes it clear that it is the Panel that "shall determine the admissibility, relevance, materiality and weight of the evidence". Significant here is that the term "evidence" relates not just to material exhibited to a complaint or response, but also to assertions made in the complaint or response itself, particularly when those assertions supported by an appropriate statement of truth in accordance with paragraph 5(c)(viii) or 3(b)(xiii) of the Rules (see, for example, paragraph 6.22 of the decision in Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright WIPO Case No. D2007-0267).
Further, paragraph 4 of the Supplemental Rules makes it clear that "[t]he Case Administrator [appointed by the Provider] may provide administrative assistance to the Panel or Panellist(s), but shall have no authority to decide matters of a substantive nature concerning the dispute".
Therefore, it is simply wrong in principle for a provider to express any view upon whether a response is a good substantive response to points made in a complaint. That is the sole preserve of the panel. It is, therefore, unhelpful for a provider to stray into these realms, even if a panel could ignore a provider's conclusions in that regard.
Further, there is a considerable number of UDRP cases where panels have sought fit to comment upon (and even suggest that ICANN further investigate) where there appears to be non-compliance with either the wording or the spirit of the Policy or Rules by an entity who is not a party to proceedings but has obligations and responsibilities so far as the operation of the UDRP is concerned. In this respect see the analysis and the lengthy list of cases cited in LEGO Juris A/S v. Whois Privacy Protection Service, Inc. / Domains Secured, LLC WIPO Case No. D2011-1857, where questions arose as to the conduct of registrars, who have their own distinct and important role in the operation of the UDRP. There seems to be no reason why providers should be in any different position in this respect.
Turning to the specific circumstances of the present case, the reasons why the Provider concluded that the Response was not administratively compliant were set out in its Notification of Respondent's Default dated 28 June 2020. In essence this contended that there had been failure to comply with paragraphs 5(c)(i) and 5(c)(ix) of the Rules. These state as follows:
"5(c)(i) Respond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain-name holder) to retain registration and use of the disputed domain name (This portion of the response shall comply with any word or page limit set forth in the Provider's Supplemental Rules.)" and
"5(c)(ix) Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents."
Save perhaps for compliance with the relevant word or page limit (which is not an issue in this case), the Panel is not convinced that compliance with 5(c)(i) is an administrative issue at all. The Panel can see why if the response is mere gibberish (for example a random string of letters) it could be said that this is not really a response and should be rejected as such. But where there is text that could conceivably be read as responding to the complaint, then that is something that should be left to a panel as part of its substantive review and is not for the provider to take a view and opine upon that issue under the guise of assessment of administrative compliance.
The Panel is of the view that there was material in the Response in the present case that was more than mere gibberish. Albeit poorly expressed, there was an allegation of lack of knowledge that if correct might well have provided a complete answer to the Complaint. Further, although an inadvisable approach that rarely succeeds, it is open to a respondent to assert that the Complainant has failed to prove its case and this also seemed to being alleged in the Response (albeit without supporting reasoning).
For reasons that the Panel has already set out, the claim of lack of knowledge has been rejected. The Panel has also concluded that the Complainant has proved its case. But these are matters for the Panel and not issues to have been pre-judged by the Provider.
Paragraph 5(c)(ix) also takes matters no further, since although annexing material is clearly advisable for a respondent in that it lends weight to assertions in a response, a response cannot sensibly be said to be non-compliant if it does not do so. Take the position where, for example, a respondent contends that the complaint should fail because the marks relied upon post date the registration of the domain name. That is unlikely to require the annexing of material and it would be absurd to suggest that the response is non-compliant in any serious or important sense as a result.
This analysis is also supported by the content of the Provider's own website and in particular the page of the website that sets out a "a checklist of issues which must be addressed in the Response so that it is administratively compliant". As far as the Panel can tell the checklist has no formal status under the Supplemental Rules, but it does provide what appears to the Panel to be a helpful and at first glance well founded list of ten requirements for such compliance. Significant for present purposes is that compliance with paragraphs 5(c)(i) and 5(c)(ix) are not included in that list.
Accordingly, the Panel concludes that the reasons provided by the Provider for administrative non-compliance are not made out in this case.
However, the Panel would also observe that the practical consequence of it having made a determination under paragraph 1 (b) of Annex A of the Supplemental Rules is that at least so far as fees are concerned, the Complainant is now in no better, and in no worse, a position than would have been the case if the Provider had held that the Response was administratively compliant.
Finally, the Panel wishes to make it quite clear that although it has concluded that the Provider made the wrong determination in this case, it nevertheless has a great deal of sympathy with the position of the Provider. In broad terms the form of the Response was such that although not gibberish, it was of very poor quality and what the Panel read as providing a response was hidden among material that did not. In large part, the Respondent brought the Panel’s determination on itself.
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