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ADMINISTRATIVE PANEL DECISION
Meteor Mobile Communications v Frank Dittmar
Case No. D2000-0524
1. The Parties
The Complainant is Meteor Mobile Communications, a company incorporated in Ireland, registration number 282645 and having its principal place of business at Unit 4030, Citywest Business Park, Naas Road, Dublin 24, IRELAND ("the Complainant").
The Respondent is Frank Dittmar of Kisdorf, GERMANY, trading as Dittmar Companies and also as Meteor Services ("the Respondent").
2. The Domain Name and Registrar
The domain name the subject of this dispute is <meteor.net> ("the Domain Name"), which was first registered on August 1, 1997.
The Registrar of the domain name is Network Solutions Inc. of Herndon, Virginia, USA ("the Registrar").
3. Procedural History
A Complaint pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") and the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"), both of which were implemented by ICANN on October 24, 1999, was received by WIPO in electronic form on May 30, 2000 and in hard copy on June 2, 2000. The Complaint was accompanied by payment in the required amount for a single panelist.
On June 2, 2000 an Acknowledgement of Receipt (Complaint) was sent to the Complainant.
On June 2, 2000 the Complaint was checked by WIPO for compliance with the Policy, the Rules and with the World Intellectual Property Organization Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") and was found to be deficient. Accordingly, a Complaint Deficiency Notification was sent to the Complainant.
On June 6, 2000 an amended Complaint was received by email, a hard copy being received on June 13, 2000.
On June 8, 2000 a Request for Registrar Verification was sent to the Registrar, requesting confirmation that it had received a copy of the Complaint from the Complainant, that the domain name was currently registered with it and that the Policy was in effect, provision of the full details of the holder of the Domain Name and advice as to the current status of the Domain Name.
On June 10, 2000 the Registrar reported that it had not received a copy of the Complaint from the Complainant, but confirming that the domain name was currently registered with it. It provided a copy of the requested Whois details and advised that the status of the Domain Name was ‘Active’. It further advised that the Policy was in effect by virtue of Network Solutions’ 5.0 Service Agreement. The Panelist notes that clause 8 of this Agreement (http://www.networksolutions.com/legal/service-agreement.html) incorporates the Policy into the Agreement.
On June 14, 2000, the Complaint having again been checked by WIPO and found deficient, a further Complaint Deficiency Notification was sent to the Complainant.
On June 14, 2000 an Addendum to the Complaint was sent by electronic mail by the Complainant.
On June 15, 2000 the Complaint was checked by WIPO for compliance with the Policy, the Rules and the Supplemental Rules and was verified as being satisfactory.
On June 15, 2000 the formal requirements having been met, a Notification of Complaint and Commencement of Administrative Proceeding was sent to the Respondent by email and by courier and also to the Complainant and Registrar, advising that the Response was due by July 4, 2000.
On June 20, 2000 a Response pursuant to the Policy, the Rules and the Supplemental Rules was received by WIPO.
On June 30, 2000 an Acknowledgement of Receipt (Response) was sent to the Respondent.
On July 1, 2000, in view of the Complainant’s designation of a single Panelist, WIPO invited Clive Elliott ("the Panelist") to serve as the panelist in this Administrative Proceeding.
On July 1, 2000 a Request for Declaration of Impartiality and Independence was transmitted to the Panelist.
On July 3, 2000 a Statement of Acceptance and Declaration of Impartiality and Independence was received by WIPO from the Panelist.
On July 4, 2000 a Notification of Appointment of Administrative Panel and Projected Decision Date ("the Appointment Notification") was sent to the Complainant and the Respondent. In accordance with the parties’ requests, the Appointment Notification informed the parties that the Administrative Panel would be comprised of a single Panelist, Mr. Clive Elliott ("the Panel"), and advised that the decision should be forwarded to WIPO by July 17, 2000.
Having reviewed the communications records the Panel is satisfied that the formal requirements of the Administrative Proceeding have been satisfied.
4. Factual Background
In January 2000 the Complainant contacted the Respondent by email, inquiring whether the Respondent would be interested in selling the Domain Name to the Complainant.
On January 24, 2000 the Respondent asked how much the Complainant would be willing to pay for the Domain Name.
On January 25, 2000 the Complainant offered EU$1,000 for the Domain Name.
On February 16, 2000, the Respondent replied, stating that the Complainant’s offer was "way too low" and indicated that he believed the commercial value of the name would be in the "10s of thousands". The Respondent also stated that due to the low indication given by the Complainant, the Respondent believed the Complainant would not be interested in further negotiations.
The Complainant has asserted but has not provided evidence that the word METEOR was registered in Ireland as a Trading name (as provided by the Business Names Act 1963, registration number 158234) on April 8, 1998, in respect of the Complainant, which was incorporated in Ireland on March 26, 1998.
The Complainant has also asserted but has not provided evidence that it intends using the name METEOR as its trading name, as a brand and/or product name, and as a service mark, in relation to the goods and services it intends providing, which include primarily GSM mobile services, but also retail outlets for mobile related products, an ISP for its customers, a customer care and/or shopping mall website and a website promoting the company and recruiting new staff. The name METEOR is intended to be used on all the Complainant’s packaging communications and products.
The Respondent has not disclosed any factual information, and has not denied the above statements made by the Complainant.
In support of its assertion that the Domain Name was registered and is being used in bad faith, the Complainant has made a number of assertions.
First, there has been no demonstrable use of the domain name by the Respondent in the two years since it was registered, and the Respondent has shown no intention of developing a website associated with the Domain Name.
Secondly, the Respondent has indicated an intention to sell the domain name for valuable consideration in excess of the costs directly related to registering and maintaining the Domain Name.
In its Response the Respondent has made a number of assertions.
First, the Domain Name was registered for the purpose of establishing a set of stable, long-term email addresses for a group of German individuals who share a common interest in astrology. The registration of the Domain Name avoided the need for these individuals to change their email addresses whenever they changed ISP, a common occurrence in Germany when the Domain Name was registered, due to a volatile ISP market and high Internet access costs. The Domain Name has been in constant use since its registration and is currently being used for email and closed mailing lists.
Secondly, the registration of the domain name pre-dates the Complainant’s registration of any trademark or service mark.
Thirdly, the Respondent has not at any time attempted to pass off the Domain Name as a commercial venture in competition with the Complainant.
Fourthly, because there is no website attached to the Domain Name, there is nothing that would mislead or confuse the public.
Finally, there have been no attempts to advertise or sell the Domain Name prior to the Complainant’s contact.
6. Discussion and Findings
Para 4(a) of the Policy requires that the Complainant must prove each of the following:
(i) The domain name in issue is identical or confusingly similar to the Trade Mark; and
(ii) The Respondent has no right or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
Para 4(b) of the Policy sets out four illustrative circumstances which, if proved, constitute evidence of bad faith as required by para 4(a)(iii) referred to above.
(i) Identical / confusingly similar to a trade mark
The Complainant has not indicated that it has any trade mark registration for the word METEOR. However, it claims to have registered the word METEOR as a trading name in Ireland, though the Panel notes that no evidence of this has been provided.
The Policy states that the domain name in question in any dispute must be, "identical or confusingly similar to a trade mark or service mark in which the complainant has rights." (emphasis added). It is not clear whether the scope of the Policy covers or should be extended to include such trading names.
The Panel notes that in several earlier decisions under the Policy factors other than registered trade or service marks have been considered sufficient for the transfer of a domain name, such as common law rights in a phrase (e.g. WIPO Decision No. D2000-0014 re <thetimesofindia.com> or in a name (e.g. WIPO Decision No. D2000-0210 re <juliaroberts.com>).
Without further information, the Panel cannot resolve the question of whether it is appropriate for the mere registration of a trading name to suffice for compliance with the Policy. However, for reasons apparent below, this question does not need to be resolved in order for a decision to issue in the present case.
(ii) No rights or legitimate interest
The Complainant has stated that it is not aware of any use or intention to use the Domain Name by the Respondent, concluding therefore that the Respondent cannot have any rights or legitimate interest in the Domain Name.
The Respondent has claimed that it has legitimate rights or interests in the Domain Name as it registered the Domain Name for the purpose of establishing a set of email addresses for use by family members and associates of the Respondent. The Respondent claims that the Domain Name has been used since its registration for this purpose. The Respondent has not provided any evidence in support of these claims.
The Panel notes also that the Domain Name consists solely of a common English word.
On the basis of the parties’ submissions, and in the absence of any contrary evidence, the Panel considers that the Respondent has provided a reasonably plausible explanation for its registration of the Domain Name. The Complainant’s mere assertion of lack of rights or legitimate interests is insufficient to show a lack of such rights or legitimate interests. Accordingly, para 4(a)(ii) of the Policy has not been satisfied.
(iii) Registered and used in bad faith
The Complainant has alleged that the Respondent registered the Domain Name with an intent to sell it for profit, evidenced by its refusal to sell the Domain Name unless a price substantially greater than EU$1,000 was paid.
The Respondent has provided a plausible explanation for its registration of the Domain Name and has also pointed out that the registration substantially predates both the incorporation of the Complainant and its registration of the trading name METEOR. In addition, the Respondent notes that it only considered selling the Domain Name when approached by the Complainant.
As has been noted in earlier decisions under the Policy, the Policy is only intended to prevent misuse of the domain name system. It is not intended to prevent commercial dealing in domain names unless there is a clear attempt to take unfair advantage of another company’s name or reputation.
A brief investigation by the Panel indicates that the Respondent holds only one other domain name registration, <dittmar.com>, reflecting the surname of the Respondent.
The Complainant has not suggested that the Complainant is an entity of such size and reputation that it is reasonable to assume that the choice of the Domain Name was inspired solely or primarily by an attempt to misappropriate or otherwise misuse the Complainant’s name.
On the basis of the parties’ submissions (bearing in mind the onus on the Complainant), and in the absence of any satisfactory contrary evidence, the Panel considers that the Respondent has refuted or at least adequately countered the Complainant’s allegation that it registered and is using the Domain Name in bad faith. Accordingly, para 4(a)(iii) of the Policy has not been satisfied.
For the reasons given above the Panel has found that the Complainant has failed to substantiate its Complaint. Accordingly the Panel orders that the Complaint be dismissed and that the Respondent retain the Domain Name.
Clive L. Elliott
Dated: July 17, 2000