It is elementary that the evidence a party needs to successfully prosecute or defend a UDRP case comes from two sources: that which it controls (private information) and that which it must obtain from others (unobtainable private – anything that reveals motivation and intent – and accessible public information about one’s adversary). Statistically successful though complainants are, many trip for failing to marshal private facts – NA PALI SAS v. BWI Domains, Domain Manager, D2008‑1859 (WIPO January 27, 2009) (that its license authorized it to maintain a UDRP proceeding) – or public facts – Descente, Ltd. and Arena Distribution, S.A. v. Portsnportals Enterprises Limited. D2008‑1768 (WIPO January 22, 2009) (that the respondent had a history supporting its legitimate interest in the disputed domain name). The first Complainant could have gone to its licensor and obtained written proof of its right; the second Complainant could have investigated the Respondent’s history from online resources.
Panelists have discretionary authority to request “further statements or documents from either of the Parties [Rule 12 of the Policy]” and. although not expressly stated by rule, to undertake a modicum of research to make a decision. The consensus on the question whether “a panel may perform independent research when reaching the decision” is expressed in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions at paragraph 4.5:
A panel may visit the internet site linked to the disputed domain name in order to obtain more information about the respondent and the use of the domain name. The panel may also undertake limited factual research into matters of public record if it feels that it needs that assistance in reaching a decision. If the panel feels that it requires further information to make a decision in a proceeding then it can issue a panel order to the parties.
It is common practice for parties to cite Google – WebTrends Inc. v. Search Engine SEO Software Reviews, Mark Chu, D2008‑1520 (WIPO December 15, 2008) (cited affirmatively by Complainant); Swimways Corporation v. Richard Nugent, D2008‑0786 (WIPO July 12, 2008) (backfired against the Complainant, “The fact that the Google search for 'toypedo' received 14,300 hits linking to the Complainant means little, if anything, in this regard, as this search was done in April 2008.” The Respondent registered the domain name in May 2000) – and the USPTO – Alexis C. Le Hara v. Vertical Axis, Inc c/o Domain Administrator, FA0809001225832 (Nat. Arb. Forum November 26, 2008) – and panelists more prominently than parties to cite the Wayback Machine – NA PALI SAS, supra. A more recent resource is <DomainFight.Net> which searches complainants, respondents and domain names in UDRP cases decided by both WIPO and Nat. Arb. Forum panelists – a tool useful for tracking parties’ arbitration history, the number of proceedings initiated or citations of abusive registration and reverse domain name hijacking.
Collectively, these tools are used to obtain public information about one’s adversary. Internet Archive (“IA”) (http://www.archive.org) has been cited by panelists to confirm or corroborate evidence by the parties. IA is a public nonprofit company dedicated to building an Internet Library. To take a recent example, the usefulness of the archive can be seen in Research in Motion Limited v. Louis Espinoza, D2008‑0759 (WIPO July 23, 2008). The Complainant annexed to the complaint an image of a website to which <blackberrycoach.com> resolved. The Panel found that “it contained references to podcasts and other items that appear to relate to versions of computer software. There is no reference to the alternative meaning of ‘blackberry’ as a fruit” from which the Panel inferred that the domain name was registered not to extol the fruit but to take advantage of the Complainant’s trademark.
A well presented overview of IA's mission and well worth reviewing again is the Panel's discussion in The iFranchise Group v. Jay Bean / MDNH, Inc. / Moniker Privacy Services [23658], D2007‑1438 (WIPO December 18, 2007) (unanimous 3‑member panel). IA collects web pages and “[l[ike a paper library ... provide[s] free access to researchers, historians, scholars, and the general public.” In late 1999, IA started to build better‑rounded collections using Alexa to crawl the web. With its Way‑Back Machine ‑– a device that displays the web as it looked on a given date – anyone can have literally a window on the past. However, “Alexa respects robots.txt instructions [not to crawl a particular site], and even does so retroactively” thereby preventing the researcher from discovering targeted pages. The anecdote to this is drawing a negative inference against the respondent supporting the truth of a complainant’s “reasonable factual allegations ... as to the historical use of the web site to which the domain name at issue resolves ... and that the use of robots.txt in the particular case may be considered as an indicia of bad faith.”
Archived pages from IA have been accepted as reliable proof of web images in UDRP proceedings. The E.W. Scripps Company v. Sinologic Industries, D2003‑0447 (WIPO July 1, 2003) (“On the balance of probabilities, the Panel holds that they are accurate records of the home page accessed by the domain Name on those dates.”). A federal magistrate ruled IA snapshots admissible as “an admission of a party‑opponent and are not barred by the hearsay rule,” Telewizja Polska USA, Inc. V. Echostar Satellite Corp., No. 02 C 3293, 2004 WL 2367740, at *5 (N.D. Ill. October 15, 2004); also, Louis Vuitton Malletier v. Burlington Coat Factory Warehouse Corp., 426 F.3d 532, 535 (2d Cir. 2005) (evidence of defendant’s Web site advertisements presented through archive.org capture of the site content at particular time).