In summary, then, the Complainant has raised grounds which are usually sufficient to shift the evidential onus to the Respondent. The Respondent has countered with claims which, if established, would provide it with rights or legitimate interests to use the Disputed Domain Name in Australia. To a considerable extent, the Respondent’s claims are just that. This is not just a case of bare, incredible assertion, however. The Respondent has provided verifying support by way of statutory declaration (albeit this is balanced by statutory declarations on the part of the Complainant). In addition, it is common ground between the parties that the Respondent, or parties associated with it, has been using the name Jacuzzi since prior to July 1996, and there has been a very long delay in the Complainant taking any further action against the Respondent or any of its associated parties. While the Complaint did seek to rely on the letter of demand in July 1996, it has not sought to explain the delay in following up that demand ? a delay of eight years. In the special circumstances of this administrative proceeding, therefore, the Respondent’s claims have some objective support and cannot simply be dismissed as untenable.

The Panel has noted that the matters claimed by the Respondent are possible defences that may be available to the Respondent. They are not easy defences to make out, however, and the Respondent may not be able to establish them. A proper assessment of them requires much wider evidence gathering powers, including discovery and cross-examination of witnesses, than is available in an administrative proceeding of this kind. In view of the limited nature of these administrative proceedings as proceedings on the papers, therefore, the Panel’s finding cannot, and should not, be taken as a final endorsement of the Respondent’s claims.