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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Safmarine v Network Management
Case No. D2000–0764
1. The Parties
The Complainant in this administrative proceeding is Safmarine of 22, Riebeck Street, Cape Town 8001, South Africa, represented by Shelley Rosenberg. It would appear from a brochure exhibited to the Complaint that "Safmarine" is a business name used by more than one corporation. The corporation trading from the above address would seem to be Safmarine (Pty) Limited. The Respondent in this administrative proceeding is Network Management of 3620 N. Washington Blvd., Indianapolis, IN 46205, U.S.A., represented by Andrew "Buddy" Baker, of Dann Pecar Newman & Kleiman, P.C., One American Square, Suite 2300, Indianapolis, Indiana 46282, U.S.A..
2. The Domain Name and Registrar
The domain name in issue is "portlink.com" ("the Domain Name"), the Registrar of which is Network Solutions, Inc. ("Network Solutions").
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received on July 10, 2000, an electronic version of the Complaint and on July 20, a hard copy version of the same, with accompanying documents. The Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy ("the Policy"), and the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"). The Complainant made the required payment to the Center. On September 1, 2000, the Center formally notified the Respondent that this administrative proceeding had been commenced, and that date is the formal date of the commencement of this administrative proceeding.
On July 21, 2000, the Center transmitted via e-mail a request for registrar verification in connection with this case. On July 26, 2000, Network Solutions transmitted via e-mail to the Center its Verification Response, confirming that the registrant is Network Management, the Respondent herein, and stating that the administrative, technical and zone contacts are "Ecorp.com" at the same address as the Respondent. The Respondent lodged its Response by e-mail on October 2, 2000, and a hard copy was received by the Center on October 4.
On October 11, this Panelist was appointed by the Center. The Panelist has filed a Statement of Acceptance and Declaration of Impartiality, and his decision is scheduled to be forwarded to the Center by October 24, 2000.
4. Factual Background
(a) The Complainant does not assert ownership of any trademark or service mark, whether registered or not.
(b) The Domain Name was registered on April 8, 1998.
5. Parties’ Contentions
The Complainant asserts, inter alia, as follows:-
(i) Portlink, a subsidiary of Safarine, wishes to acquire the domain "portlink.com" in order to create a website and conduct e-business.
"This domain has been registered by Network Management and there is no website at this domain. We have repeatedly emailed them in an effort to establish what their intention is regarding this domain and they do not respond. We have also sent a registered letter to the company and have had no response and the telephone numbers shown in the whois search are also not for this company."
(iii) Portlink was incorporated as a Belgian limited liability company on June 3, 1988.
(iv) Its belief that the Respondent has no legitimate interest in respect of the Domain Name.
The Respondent has gone to considerable lengths in the Response to raise every possible issue, regardless of whether the Complainant has made any relevant assertion. No disrespect is meant to the Respondent, but the Panelist records below only those matters which he considers are necessary for this Decision. They are the following:-
The Complainant fails to plead the required elements under the Policy, and offers no evidence supporting the allegations it does make.
The site "portlink.com" (the "Site") will be used by the Respondent as an online industry portal service aggregating and linking targeted web-business content. The Site will link to the other port sites which the Respondent is in the business of developing.
The Complainant’s pamphlet states that portlink (a ship of some sort) "offers a dedicated short-sea service between the UK/Northwest Continent/Scandinavia and Spain and Portugal. These services are used both by deep-sea carriers and also by shippers moving containers between European ports." The Respondent’s use of the Site relates to linking related sites, none of which have anything to do with "deep-sea carriers … [in] European [waters]". The Respondent has no interest or business concerning "European shipping".
The Respondent has a legitimate interest in the Site. The Respondent’s business strategy is premised on the interlinking of numerous web-based businesses. These web-based businesses are intertwined with each other, providing the consumer the opportunity to travel from site to site within the network of businesses. It also permits a strategic business partner to join the network and add its products or services to those already offered, and take advantage of the existing products and services already within the network. In pursuit of this strategy, the Respondent has purchased numerous domain names with the expectation that they will serve as platforms for a global webcommunications company. The Respondent has been assembling these domain names for several years now in preparation of the web-based network, and is now beginning to add content to these sites. This has been a long process. Since the idea behind the Respondent’s business is the competitive advantages and opportunities generated by interlinked domains, the Respondent has placed more of an emphasis over the last several years in compiling the domain names rather than the construction of the sites themselves. The names selected for acquisition and use by the Respondent were chosen based on market appeal and industry trends, not on the existence (or non-existence) of trademarks.
At the time it registered the Domain Name, the Respondent had no knowledge of the Complainant’s business.
The Respondent’s failure to reply to the Complainant’s enquiries as to its use of the Site is not evidence of "bad faith".
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the ICANN policy, as follows:-
(i) the 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 domain name; and
(iii) the domain name has been registered and is being used in bad faith.
As will be apparent from the above, the Complainant must fail in this administrative proceeding, because it neither asserts nor demonstrates the existence of a relevant trademark or service mark, whether registered or not. If there were any relevant rights, they would seem to belong to its subsidiary Portlink, a Belgian company, which is not a party to this proceeding. Element (i) above is not established.
As for element (ii), the Complainant’s only basis for alleging the absence of rights or legitimate interests is the failure of the Respondent to reply to the Complainant’s inquiries. The Response satisfies the Panelist that although the Domain Name may not yet have been used on an active website, the Respondent registered the Domain Name in pursuance of a detailed business plan which it is actively pursuing. The Panelist is therefore satisfied that the Respondent has a legitimate interest in the Domain Name.
With regard to element (iii), the Complainant makes no specific allegation of bad faith. The Respondent asserts it had no prior knowledge of the existence of the Complainant’s shipping business conducted by its subsidiary, Portlink. As the onus is on the Complainant to demonstrate bad faith on the part of the Respondent, it is clear that it has failed to discharge than onus.
In the light of the foregoing findings, the Panelist considers it unnecessary to discuss the Response in any greater detail. However, the Respondent charges the Complainant with having filed the Complaint in bad faith, and thus being guilty of "Reverse Domain Name Hijacking". Whilst it would appear that the Complainant and its representative have not properly understood the Policy and Rules, the Panelist does not consider the Complainant has acted in bad faith. Indeed, this administrative proceeding would in all probability have been avoided if the Respondent had had the courtesy of replying to the Complainant, explaining why it could not sell the Domain Name.
In the light of the findings in paragraph 6 above, the Panelist concludes that this dispute is not within paragraph 4(a) of the Policy, and that the domain name "portlink.com" shall remain registered to the Respondent.
Dated: October 23, 2000