To: process.mail@wipo.int
Subject: Second WIPO Internet Domain Name Process/Comments
From: "Reinhard Schanda"
Date: 10, May 2001 6:24PM
Dear Sir or Madam,
I have the honor the serve as a Panelist to the WIPO Center according to the UDRP. With interest I recently studied the Interim Report of the Second WIPO Internet Domain Name Process. In response to your invitation to deliver opinions on this Process, I take the liberty to submit this comment to the Office of Legal and Organizational Affairs for consideration:
I will, however, focus on a fundamental question of the WIPO process in general, rather than the suggested changes of the WIPO policy, because I believe that this issue is of importance in every proceeding under the WIPO rules.
My practical experience as WIPO panelist has shown that the provision made in the last sentence of Paragraph 4(a) (i.e. that the Complainant "must prove that each of the three elements (including the fact that Respondent does not have rights or legitimate interests in respect of the domain name) are present") casts doubt upon the parties, because the meaning of this provision is unclear.
This provision suggests that the burden of proof is placed on the Complainant. It seems, however, almost impossible for Complainants to meet this requirement, though, as there is no logical means of verifying that a certain fact is NOT given. Therefore, many legal systems rely on the principle of "negativa non sunt probanda" as a general rule of evidence and burden of proof.
The application of this provision is particularly difficult, as Paragraph 4(c) seems to place the burden of proof on the Respondent (under the heading of "How to Demonstate your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint"). The wording of this provision also is unclear, as it remains questionable what a "demonstration" of rights should be (in contrast to proof of rights or interests). One could also consider that the more detailed rule in Paragraph 4(c), according to the principle "lex specialis derogat legi generali", overrules the more general rule of the last sentence of Paragraph 4(a).
Both provisions create a situation of doubt: it would be highly preferable to have to handle only one provision, stating which party has to meet which standard of burden of proof. Since there is no means to actually proof the lack of a fact, in my view it seems preferable that the Complainant only has to assert that the Respondent does not have rights to or legitimate interests in the domain name. Then the Respondent should be obliged to prove his rights or interests, to counter Complainant's assertions.
I respectfully propose reconsideration of the wording of these provisions, especially with regards to legal certainty and clarity of requirements of the WIPO process.
With best regards Dr. Reinhard Schanda
Sattler & Schanda, Rechtsanwälte
office@sattler.co.at
www.sattler.co.at