Bad Faith

Response to the allegation that Respondent registered and is using the domain names in bad faith.

The only allegations contained in the Complaint with respect to this issue is Complainantís unfounded and untrue statements that are irrelevant to a determination of this issue.

We submit below that

(1) Complainant has the burden of proving that a respondent has acted in bad faith and
(2) Complainant has not fulfilled this burden.
UDRP decisions have consistently held that Complainant's have the burden of proving that a respondent has acted in bad faith. In the decision in the case of INTOCAST AG v. LEE DAEYOON Case No. D2000-1467 the panelist states as follows [emphasis added]:

"Such evidence for bad faith also does not burden the Complainant with the proof of the lack of a fact, which would be contrary to the principle negativa non sunt probanda mentioned above. It is therefore the obligation of the Complainant to convince the Panel that the domain name has been registered and is being used in bad faith. The mere allegation of such bad faith on the side of the Respondent is not sufficient.

We emphasize that the Uniform Domain Name Dispute Policy requires that Complainant must prove bad faith both at the time of registration and in the current use of the domain name. An examination of Complainantís filing does not provide proof or evidence to support the allegation that Respondent acted in bad faith either at the time of registration or in the current use of the domain name.

Although Respondent does not have a burden of proving the absence of bad faith in this matter, we submit evidence to prove that bad faith did not exist. Although the statements submitted by Complainant in the "bad faith" section of the Complaint are irrelevant to the determination of whether the requisite bad faith existed, Respondent wishes to refute the unfounded allegations and accusations contained in the Complaint. Accordingly, we note that the Complaint contains a vague, nonspecific and unsupported statement alleging that "respondent has suggested payment in return for the names, but it is apparent that he is seeking a very considerable sum (£100,000)". Although no proof or evidence of this "hearsay" statement is provided, Respondent points out that:

1. Respondent denies this unfounded and unsupported statement contained in the Complaint.

2. Respondent, being a reasonable and patient man, has tried on a number of occasions to resolve his long-running legal disputes with the policing authority and has engaged in a number of telephone conversations with Mr. Brazier in attempts to agree to a settlement of the numerous issues. Mr. Brazier had agreed that the conversations would be purely for the settlement of the many issues and would be off-the-record and "without prejudice"

3. In one such "without prejudice" conversation recently, possible settlements were discussed. There was discussion about a settlement of numerous, long-standing legal issues that could involve the reimbursement of certain costs incurred by Respondent. The discussion may have included the mention of the fact that Respondentís costs were, at that time, around £100,000. In the vague, nonspecific, unsupported statement in the Complaint, Complainant has attempted to misconstrue and misinterpret the discussion and characterize it as a "suggested payment in return for the names"

4. Respondent and his lawyers both allege that Mr. Brazier has been untruthful in his submissions on behalf of the policing authority to eResolution, and an official complaint has been lodged with the appropriate authorities to this effect. The response to this official complaint has been to threaten Respondent.

5. Respondent's lawyers deal with this in their letter to the policing authority of the 22nd of August 2001.

6. Further, Respondent and his lawyers believe that it is possible that serious criminal offenses of perjury have been committed by Mr. Brazier by virtue of his submissions to eResolution in a "quasi-judiciary process", contrary to the Perjury Act 1911 and the case of Regina v. Sood 1998.

The Complaint contains absolutely no evidence or proof that Respondent has acted in bad faith. The relevant policies enumerate several bases for a determination of bad faith. Absolutely none of these bases exist. The relevant policies state as follows:

Section 4 of the Uniform Domain Name Dispute Resolution Policy, provides that certain circumstances shall be evidence of bad faith. It provides as follows:

"b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

i. circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
ii. you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
iii. you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
iv. by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
There is absolutely no proof presented in the Complaint to support a finding of bad faith in these or any other ways.

In situations such as the instant situation, UDRP decisions have held that when no proof of bad faith is presented by the Complainant, the Complainant fails to establish the element of bad faith. For example, in the case of WPP GROUP PLC v. WPP AF-0530a the decision states that:

There has been absolutely no evidence presented by Complainant before the Panel to show one of the circumstances set out above or any other circumstance of bad faith. The only assumption expressed by the Complainant on this element is that on a site ( which is not part of this dispute was hosted some pornographic material. The Complainant has therefore failed to establish this element.

Similarly, in the instant case there has not been any conclusive evidence presented by Complainant to show one of the listed circumstances or any other circumstance of bad faith, Therefore, the Complainant has failed to establish this required element. Complainant has failed to prove that there was bad faith both at the time of registration and in the current use of the domain names.

Since Complainant has failed to prove the element of bad faith, Complainantís request for the transfer of the domain name should, therefore, be denied.