WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Binary Marketing DMCC v. Domains By Proxy, LLC / Binary Demand B2b Private Limited, Nilesh Konde, Archana Ganpat More, Rohit Anil Devkule, Tejas Shekhar Chinchane

Case No. D2020-3047

1. The Parties

The Complainant is Binary Marketing DMCC, United Arab Emirates, represented by Radhika Bali and Associates, India.

The Respondent is Domains By Proxy, LLC, United States of America / Binary Demand B2b Private Limited, Nilesh Konde, Archana Ganpat More, Rohit Anil Devkule, Tejas Shekhar Chinchane, India.

2. The Domain Name(s) and Registrar(s)

The disputed domain name < binarydemandb2b.com> is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 16, 2020. On November 17, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 18, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

On November 17, 2020, the Respondent submitted an email to the Registrar, copied to the Center. The Complainant then submitted an email seeking to rebut the assertions in the Respondent’s email.

The Center verified that the Complaint together with the amended Complaints satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

On November 30, 2020, the Respondent submitted a further communication objecting to the Complainant.

On the same day, the Center emailed the Complainant seeking clarification of the remedies requested in the Complaint and submission to the Mutual Jurisdiction requirements under the Policy. An amended Complaint was filed on December 3, 2020.

On December 9, 2020, have reviewed the amended Complaint, the Center emailed the Complainant seeking further clarification of the submission to Mutual Jurisdiction and requiring any further amended Complaint to be submitted by December 11, 2020.

Later that day, the Complainant submitted a further amended Complaint.

On December 10, 2020, the Complainant submitted a further email to the Center addressing matters raised in the Respondent’s email dated November 30, 2020.

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 14, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 3, 2021. The first and second Respondents submitted an email Response on December 17, 2020. The fourth and fifth Respondent submitted separate email Responses on December 30, 2020. Accordingly, the Center notified the Commencement of Panel Appointment Process on January 5, 2021.

The Center appointed Warwick A. Rothnie as the sole panelist in this matter on January 14, 2021. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

On January 28, 2021, the Panel issued Administrative Panel Order No. 1 pursuant to paragraph 12 of the Rules inviting the Complainant to submit a supplemental filing addressing the basis on which it claimed rights in the trademark on which the Complaint was based. The Panel Order also made provision for a supplemental response by the Respondent if the Complainant made a supplemental filing.

Pursuant to Administrative Panel Order No.1:

(a) The Complainant submitted a supplemental filing which was received by the Center on February 5, 2021; and

(b) The Respondent submitted a supplemental filing in answer on February 10, 2021 (the Feb. 10 supplemental filing).

The Respondent claimed that the Feb. 10 supplemental filing was or contained valuable confidential information and submitted it only on the basis that it not be disclosed to the Complainant. The Center did not disclose the contents of the Feb. 10 supplemental filing to the Panel.

On February 15, 2021, the Panel issued Administrative Panel Order No. 2. This order was a modified form of the Order made in Pharmacia & Upjohn AB v. Gabriel Sipa d/b/a If you want this domain name, please contact me d/b/a This domain name is Not for sale!WIPO Case No. D2000-0309. (In case it is of assistance, a copy of Panel Order No. 2 is appended to this decision as an Appendix.)

On February 23, 2021, the Complainant submitted the undertakings required pursuant to Panel Order No. 2.

On February 23, 2021, the Respondent submitted a further supplemental filing; again on terms that it not be disclosed to the Complainant.

The Panel was not prepared to accept either of the Respondent’s proposed supplemental filings on terms that they not be disclosed to the Complainant. On March 3, 2020, therefore, the Panel issued Administrative Panel Order No. 3 allowing the Respondent until March 8, 2021 to submit a supplemental filing in a form which could be disclosed to both the Panel and the Complainant having regard to the undertakings provided by the Complainant in response to Panel Order No. 2.

The Respondent did not make any further submission. Neither of the Respondent’s proposed supplemental filings has been disclosed to the Panel.

4. Factual Background

The Complainant is a company incorporated in Dubai on August 29, 2018. It provides lead generation and data solutions services under the name “Binary Demand”.

It says it provides its services to clients across the world including in the United States of America (“United States”), Canada, Europe, and India. It says some of these clients are the world’s largest and well-known technology companies.

Although the Complainant was incorporated in August 2018, its domain name, <binarydemand.com>, was registered and has been in use since January 10, 2018.

On its website, amongst other things, it claims to have more than 200 clients and identifies Adobe, Oracle, Microsoft, box, vmware, and Marketo as significant clients.

The Complainant says it has invested “plenty of resources” in marketing its services. It has not provided expenditure figures, but has provided print outs of Google searches on a wide range of terms relevant to its business such as “Demand Generation”, “Lead Generation”, “B2B Demand Generation”, “B2B Lead Generation”, “Binary Demand”, “Content Syndication”, and “ABM Leads” which show the Complainant’s domain name, <binarydemand.com>, returned as the first or top advertisement. In a number of cases, the second ranked advertisement was by LinkedIn.

The Complainant has sponsored and exhibited at several conferences around the world attended by industry experts. The included annexures include evidence of sponsorship and attendance at the B2B sales and marketing summit 2019 in an unspecified location and the Sirius Decisions conference in Austin, Texas in 2020.

The Complainant has social media accounts using the handle “Binary Demand” on both Facebook and LinkedIn.

In addition to these activities, the Complainant and its trademark are listed in a number of third-party listing websites including “www.zoomInfo.com”, “www.cabinetm.com”, “growjo.com”, “www.apollo.io” and “sur.ly”. The ZoomInfo listing reports the Complainant’s revenues in the first quarter of 2021 at USD 6 million. The Growjo listing reports annual revenues of USD 23.3 million. Data from Alexa metrics reported on the “sur.ly” website indicate that the Complainant’s website has on average 388 visitors each day.

It has provided testimonials endorsing its services from several clients although their organisations have been redacted so it is not possible to identify them.

The Complainant has applied to register its trademark, “Binary Demand” and device of a stylized “BD” in respect of a range of marketing services including online marketing in International Class class 35 in India, United Arab Emirates, the United Kingdom and the United States. The applications were filed between September 2, 2020 (India) and December 2020. These applications have not proceeded to grant. The second Respondent’s pending application discussed below is one of the grounds of objection to the registration of the Complainant’s marks in India.
In India, the Complainant has what it describes as “a commercial relationship” with Facile Info-Serv Private Limited which assists the Complainant in providing lead generation services globally. The included annexures include photographs of an employee awards night, Annual Bash 2020, held by the Complainant and Facile Info-Serv.

According to the Complaint, the second Respondent, Mr. Konde, was employed by Facile Info-Serv as a Customer Advocacy Associate in the latter’s Sales Operations Department from April 2018 to November 2019. In that capacity, Mr. Konde worked exclusively on projects for the Complainant.

Following his departure from Facile Info-Serv, the Complaint alleges that Mr. Konde joined one of the Complainant’s competitors, Sell2world ITES Private Limited, and used a list taken without authorization from the Complainant to approach the Complainant’s clients for their business. The Complainant says this led to the Complainant filing a complaint against Mr. Konde with the police in March 2020. The Complainant also alleges that Mr. Konde’s former employer has initiated some form of legal action against him too.

The disputed domain name was registered on January 27, 2020. It resolved to the website of the first Respondent but, at the time this decision is being prepared, a page is displayed stating that “This Account has been suspended”.

On February 26, 2020, the first Respondent was incorporated. Mr. Konde and the fourth and fifth Respondents were its directors.

As shown in print outs from the website included in the Complaint, the first Respondent provides lead management, data solution, sales targeting, digital marketing and email marketing services. The first Respondent’s services are not limited just to the Indian market, but are offered globally. That is, the first Respondent’s services are in direct competition with the Complainant.

Although different in layout and using a white instead of a gray background, the first Respondent’s website used a similar blue and gold colouring for its “logo” as used by the Complainant.

On March 17, 2020, the Complainant’s lawyers sent a cease and desist letter to the first, second, fourth and fifth Respondents. On March 31, 2020, the fourth and fifth Respondents subsequently resigned their positions. It appears the third Respondent was appointed a director in their place.

In July 2020, Mr. Konde sent out emails to people at Facile Info-Serv or who were clients of the Complainant. Mr. Konde used his email address based on the disputed domain name. At least several of them contacted the Complainant to express confusion whether Mr. Konde was working for the Complainant. For example, one client forwarded the email to the Complainant with the comment:

“Hey Rahul - FYI! Didn't Nilesh work for you guys for a bit? Is he back?”

On July 14, 2020, Mr. Konde applied to register Binarydemandb2b and device as a trademark in India in respect of digital marketing services in International Class 35, Trademark Application No. 4570198. The device element included in this trademark is different to the device element presenting on the first Respondent’s website on the print out included in the Complaint. The application has been objected to in examination and has not proceeded to opposition or registration.

5. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to divest the Respondent of the disputed domain name, the Complainant must demonstrate each of the following:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.

Paragraph 15(a) of the Rules directs the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.

A. Supplemental Filings and Confidentiality

In the interests of ensuring the Respondent, a self-represented party, is given a fair opportunity to put its case, the Panel will treat the two emails received from the Respondent on November 17 and 30 as part of the Response. The Panel will also admit into the record the Complainant’s email dated December 10, 2020 in response to matters alleged in the Respondent’s emails as they arise directly out of matters which the Complainant could not reasonably have been expected to address in the Complaint.

The Panel has been provided with the Complainant’s supplemental filing in response to the Panel Order, but neither of the subsequent supplemental filings provided by the Respondent which the Respondent has claimed are, or contain, confidential information which must not be disclosed to the Complainant.

A similar claim to confidentiality was made by the respondent in Pharmacia & Upjohn AB v. Gabriel Sipa d/b/a If you want this domain name, please contact me d/b/a This domain name is Not for sale!WIPO Case No. D2000-0309. There, the learned panelist explained:

“If the Panel is to take account of this business plan in reaching a decision, the Panel must see it and if the Panel sees it, natural justice demands that the Complainant must also see it. If the Respondent's reason for wishing to restrict circulation of the business plan is the fact that it is commercially sensitive in nature, that problem can be resolved by a confidentiality regime restricting circulation, but since the Respondent's planned business is not to compete with that of the Complainant, the Panel will need to be persuaded that anything other than a very basic confidentiality regime is necessary.”

With respect, the Panel considers this approach is consistent with the Policy and the Rules. First, paragraph 4(j) of the Policy requires the Panel’s decision and reasons to be published in full apart from, in exceptional cases, where the Panel rules that some portions should be redacted.

Further, paragraph 2 (h) of the Rules provides:

“Any communication by

(i) a Panel to any Party shall be copied to the Provider and to the other Party;

(ii) the Provider to any Party shall be copied to the other Party; and

(iii) a Party shall be copied to the other Party, the Panel and the Provider, as the case may be.”

Accordingly, the Panel considered that, if the Respondent wished to rely on the alleged confidential information in this limited proceeding under the Policy, in the interests of natural justice it must also be disclosed to the Complainant. As the parties in the present case appear to be in competition, the Panel considers it appropriate that a more limited disclosure regime is appropriate. The regime proposed that disclosure be permitted only to a named individual within the Complainant with decision making authority and the legal representatives acting for the Complainant in this proceeding provided that the individuals concerned provided written undertakings of confidentiality.

Although the undertakings were forthcoming from the Complainant, the Respondent has not permitted disclosure of the purported supplemental filings to the Complainant on those terms. Accordingly, the Panel has not reviewed either of the Respondent’s purported supplemental filings and they are not admitted into the record in this administrative proceeding.

For completeness, the Panel notes that the fourth and fifth Respondent’s Responses state they have resigned from the first Respondent and no longer have any involvement in its operations. For simplicity, therefore, the Panel will refer just to the Respondent unless the context requires individual identification.

B. Identical or Confusingly Similar

The first element that the Complainant must establish is that the disputed domain name is identical with, or confusingly similar to, the Complainant’s trademark rights.

There are two parts to this inquiry: the Complainant must demonstrate that it has rights in a trademark at the date the Complaint was filed and, if so, the disputed domain name must be shown to be identical or confusingly similar to the trademark.

The Complaint does not include evidence of any registered trademark held by the Complainant. Its pending applications are insufficient to qualify as trademark rights under the Policy. Accordingly, the Complainant must establish it has rights in “Binary Demand” as an unregistered trademark. See e.g. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0) , section 1.1.4 and 1.3.

The Complaint and supplemental filing include evidence that the Complainant has promoted its name and services as ‘Binary Demand’, through use of the domain name <binarydemand.com> and in a “logo form” with a stylised “BD” device. The Complainant appears to conduct a substantial business under and by reference to those marks and has some very significant clients. The Complainant’s operations also include activity from and in India. The number of followers of its Facebook and LinkedIn page are not large, by any measure. However, the Complainant’s business appears to be conducted in a relatively specialised and emerging field. In addition, as the name does not appear to be directly descriptive of the services in question, the Respondent’s adoption of the term “binary demand” indicates an expectation that its trademark significance will be recognised by potential customers. The evidence of confusion indicated in the emails from some of the Complainant’s clients on receipt of Mr. Konde’s email provides some support for that.

The Respondent has pointed out that the Complainant’s official name is Binary Marketing DMCC and it has no legal registration of “Binary Demand”. That is true, but does not address the rights which may accrue in an unregistered trademark.

Having regard to the specialised and emerging nature of the relevant industry and target audience, the Panel finds the materials filed by the Complainant in the Complaint and supplemental filing are sufficient to establish the Complainant does have rights in “Binary Demand” and “Binary Demand” with the stylised device as an unregistered trademark for the purposes of the Policy.

The second stage of this inquiry simply requires a visual and aural comparison of the disputed domain name to the proven trademarks. Questions such as the scope of the trademark rights, the geographical location of the respective parties and other considerations that may be relevant to an assessment of infringement under trademark law are not relevant at this stage. Such matters, if relevant, may fall for consideration under the other elements of the Policy. See e.g. WIPO Overview 3.0 , section 1.7.

In undertaking that comparison, it is permissible in the present circumstances to disregard the generic Top-Level Domain (gTLD) component as a functional aspect of the domain name system. WIPO Overview 3.0, section 1.11. While the stylised “BD” device is an obvious component of the Complainant’s “logo form”, it is distinct from the verbal element “Binary Demand” and would be interpreted as an acronym or monogram. The words “Binary Demand” are clearly recognisable and not overborne by the device element. They are a natural verbal reference. In these circumstances, the stylised device element may be disregarded for the purposes of the necessary comparison. See WIPO Overview 3.0, section 1.10.

Disregarding the “.com” gTLD, the disputed domain name consists of the Complainant’s registered trademark and the term “b2b”. As this requirement under the Policy is essentially a standing requirement, the addition of “b2b” does not preclude a finding of confusing similarity. See e.g.WIPO Overview 3.0, section 1.8. Apart from anything else, the Complainant’s trademark remains visually and aurally recognisable within the disputed domain name.

Accordingly, the Panel finds that the Complainant has established that the disputed domain name is confusingly similar to the Complainant’s trademark and the requirement under the first limb of the Policy is satisfied.

C. Rights or Legitimate Interests

The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name.

Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in a disputed domain name:

(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or

(ii) [the Respondent] (as an individual, business, or other organization) has been commonly known by the [disputed] domain name, even if [the Respondent] has acquired no trademark or service mark rights; or

(iii) [the Respondent] is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

These are illustrative only and are not an exhaustive listing of the situations in which a respondent can show rights or legitimate interests in a domain name.

The onus of proving this requirement, like each element, falls on the Complainant. Panels have recognized the difficulties inherent in proving a negative, however, especially in circumstances where much of the relevant information is in, or likely to be in, the possession of the respondent. Accordingly, it is usually sufficient for a complainant to raise a prima facie case against the respondent under this head and an evidential burden will shift to the respondent to rebut that prima facie case. The ultimate burden of proof, however, remains with the Complainant. See e.g., WIPO Overview 3.0, section 2.1.

The Complainant states that it has not authorised the Respondent to use the disputed domain name. Nor is the Respondent affiliated with it.

The disputed domain name (apart from the gTLD) is the same as the first Respondent’s corporate name. However, the first Respondent was incorporated after the disputed domain name was registered. More importantly, both names were adopted after Mr. Konde had been working as a Customer Advocacy Associate providing services for the Complainant. Nor is there any suggestion of some other name by which the Respondent is commonly known from which the disputed domain name could be derived.

The use of the disputed domain name to provide services which compete with the Complainant’s services does not constitute a bona fide offering of goods or services under the Policy in the absence of some right or legitimate interest in the disputed domain name.

Accordingly, the Complainant has established the required prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name.

The Responses provided by Mr. Konde are brief.

There is an allegation that all the documents submitted by the Complainant are fake. As this is just a bald assertion without any supporting evidence or explanation, the Panel is unable to act on it.

The Respondent relies on the successful incorporation of the first Respondent under its name and his pending trademark application in India.

The Respondent says its incorporation under its name gives it the legal right to use that name. The adoption and registration of a company under a name which is confusingly similar to another person’s trademark would not usually be expected to confer rights against the trademark owner, particularly in the circumstances outlined above. The Respondent has not pointed to any provision of Indian law which provides that mere registration of a company under a name provides a defence to trademark infringement and passing off. The Complainant submits that it does not. The Complainant’s submission accords with the position under the Policy and usual trademark practice. The adoption of a corporate name before the trademark owner adopted its trademark could be a valid justification. However, that is not the case here. The Respondent has adopted the name after the Complainant began using its name and trademark and did so with knowledge of the Complainant’s name and trademark.

The Respondent says it has successfully defended on objection to the registration of its trademark in India on the basis of the prior registration of BINARY MUSE. Inspection of the online Government of India Trade Marks Registry at “www.ipindiaonline.gov.in” for Trade Mark Application No. 4570198, however, shows the status of the application as having been examined and “Objected Ready for Show cause Hearing”. Moreover, a determination that the Respondent’s trademark is not in conflict with BINARY MUSE, if that is the outcome, is not determinative of whether or not the Respondent has rights or legitimate interests in the face of the Complainant’s trademark.

At this stage, the Respondent does not have a registered trademark, but only a pending application. It is of course possible that the Respondent will overcome the objections raised at examination and the application will proceed to acceptance and, if not opposed, registration. If the trademark did become registered that would provide the Respondent with rights to use it in India. At this stage, that is speculation.

Moreover, so far as the record in this case shows, the Respondent’s operations are not confined to the market in India. The website to which the disputed domain name resolved was directed to the world at large, not just the Indian market. In addition, the evidence of emails sent by the second Respondent soliciting business for the first Respondent do not appear to have been sent only to potential customers in India.

In these circumstances, therefore, the Panel considers the registration of the first Respondent under its corporate name and the pending trademark application are not sufficient to rebut the prima facie case established by the Complainant that the Respondent does not have rights or a legitimate interest in the disputed domain name for the purposes of the Policy.

Accordingly, the Panel finds the Complainant has established the second requirement under the Policy also.

D. Registered and Used in Bad Faith

Under the third requirement of the Policy, the Complainant must establish that the disputed domain name has been both registered and used in bad faith by the Respondent. These are conjunctive requirements; both must be satisfied for a successful complaint: See e.g. Burn World-Wide, Ltd. d/b/a BGT Partners v. Banta Global Turnkey Ltd,WIPO Case No. D2010-0470.

Generally speaking, a finding that a domain name has been registered and is being used in bad faith requires an inference to be drawn that the respondent in question has registered and is using the disputed domain name to take advantage of its significance as a trademark owned by (usually) the complainant.

As the second Respondent was employed by Facile Info-Serv to work as a Customer Advocacy Associate for the Complainant’s business, the second Respondent and through him the first Respondent were well aware of the Complainant’s trademark before the disputed domain name was registered.

The Respondent therefore adopted a confusingly similar domain name to use in providing services in competition with the Complainant. In the absence of rights or legitimate interests in the disputed domain name, the registration of the disputed domain name in such circumstances had a very high potential to divert potential customers of the Complainant to the Respondent and that must have been apparent to the Respondent when the disputed domain name was registered. The Panel finds therefore that the disputed domain name was registered in bad faith.

Furthermore, the use of the disputed domain name to provide services in competition with the Complainant constitutes use in bad faith.

Accordingly, the Complainant has established all three requirements under the Policy.

6. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <binarydemandb2b.com>, be transferred to the Complainant.

Warwick A. Rothnie
Sole Panelist
Date: March 15, 2021

Appendix

ADMINISTRATIVE PANEL ORDER NO. 2

Binary Marketing DMCC v. Registration Private, Domains By Proxy, LLC / Nilesh Konde

Case No. D2020-3047

Pursuant to Administrative Panel Order No.1:

(c) The Complainant has submitted a supplemental filing which was received by the Center on February 5, 2021; and

(d) The Respondent has submitted a supplemental filing in answer on February 10, 2021 (the Feb. 10 supplemental filing).

The Center has not provided the Respondent’s supplemental filing to the Panel yet. This is because the Respondent claims that some part, or parts, of its supplemental filing are confidential and must not be disclosed to anyone.

A similar claim to confidentiality was made by the respondent in Pharmacia & Upjohn AB v. Gabriel Sipa d/b/a If you want this domain name, please contact me d/b/a This domain name is Not for sale!WIPO Case No. D2000-0309. There, the learned panelist explained:

“If the Panel is to take account of this business plan in reaching a decision, the Panel must see it and if the Panel sees it, natural justice demands that the Complainant must also see it. If the Respondent's reason for wishing to restrict circulation of the business plan is the fact that it is commercially sensitive in nature, that problem can be resolved by a confidentiality regime restricting circulation, but since the Respondent's planned business is not to compete with that of the Complainant, the Panel will need to be persuaded that anything other than a very basic confidentiality regime is necessary.”

This approach is consistent with the Policy and the Rules. Paragraph 4(j) of the Policy requires the Panel’s decision and reasons to be published in full apart from, in exceptional cases, where the Panel rules that some portions should be redacted.

Further, paragraph 2 (h) of the Rules provides:

“Any communication by

(i) a Panel to any Party shall be copied to the Provider and to the other Party;

(ii) the Provider to any Party shall be copied to the other Party; and

(iii) a Party shall be copied to the other Party, the Panel and the Provider, as the case may be.”

Accordingly, the Panel considers that, if the Respondent wishes to rely on the alleged confidential information, in the interests of natural justice it must also be disclosed to the Complainant. As the parties in the present case may be in competition, the Panel considers it appropriate that a more limited disclosure regime is appropriate.

1. The Panel will not take into account the Feb. 10 supplemental filing including any information claimed to be confidential unless it is produced for inspection by the Panel and the Complainant.

2. Before the Feb. 10 supplemental filing is disclosed to the Panel and the Complainant, the Complainant must provide written confirmation to the Center:

a. Identifying by name an individual with decision making authority within the Complainant and the person or persons within the Complainant’s authorized representative, Radhika Bali and Associates to whom the Feb. 10 supplemental filing will be disclosed;

b. confirming that each of the persons named in response to paragraph 2(a) above undertakes to the Respondent not to use for any purpose or disclose to any other person the information identified as confidential in the Respondent’s supplemental filing except for the purposes of this administrative proceeding and any litigation which may arise from it.

3. The Complainant must provide the written confirmation to the Center by February 22, 2021. Any such written confirmation is without prejudice to the Complainant’s rights to challenge any claim to confidentiality made by the Respondent.

4. On receipt by the Case Manager of the written confirmation from the Complainant, the Respondent may by March 1, 2021:

a. resubmit the Feb. 10 supplemental filing; or

b. an amended form which the Respondent is prepared to have disclosed to the Panel and the Complainant, in either case clearly identifying which, if any, specific information the Respondent claims is confidential.

5. On receipt of the Respondent’s supplemental filing pursuant to paragraph 4 above, the Center will forward it (and any annexures or attachments) to both the Panel and the Complainant’s authorized representative.

6. The projected date for submission of the Panel’s decision to the Center is extended to March 10, 2021.