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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Timo Maas V Pokher Dot Limited
Case No. D2000-0890
1. The Parties
As stated in the Panel’s previous Decision dated November 9, 2000, the Complainant is Mr. Timo Maas, a German citizen whose address is Mathweg 5, D-31675, Bueckeburg, Germany. The Respondent is Pokher Dot Limited of 19A Mystras Street, Larnaca, Cyprus.
2. The Domain Name and Registrar
The domain name in issue is "timomaas.com".
The Registrar is Internet Domain Registrars ("IDR"). Confirmation from IDR was received by the WIPO Arbitration and Mediation Center (the "Center") on August 11, 2000 stating that the Respondent is the current registrant of "timomaas.com".
3. Procedural History
This is the Supplemental Decision of the Panel further to its decision of November 9, 2000 which should be read in conjunction with this Supplemental Decision.
Following the November 9 decision the Panel received and reviewed a document described as a "motion to vacate and/or suspend the administrative panel’s decision" which was filed by the Respondent’s legal advisers on or around November 29, 2000. The essence of the Respondent’s submissions in that document was that the Panel’s decision of November 9, 2000 should be vacated and/or set aside for extraordinary and exceptional reasons on the basis that the Respondent had been denied equality of treatment and a fair opportunity to present its case. In particular, the submission relates to an e-mail dated July 28, 2000 sent from Mr. Peter Ioannou of the Respondent to the Complainant’s legal representatives and subsequently forwarded by the Complainant’s legal representatives to the Panel, although not copied to the Respondent at that time (the Respondent informed the Center on August 28, 2000 that it had lost copies of e-mails sent by it to the Complainant and to his legal representatives due to a computer virus). The July 28 e-mail was considered by the Panel as it formed part of the case file transmitted to it. However, it had not been included in the Complaint nor was it referred to by the Respondent in its Response.
Having reviewed the Respondent’s application of November 29, the Panel considered that there was in the circumstances at least a risk that the Respondent had been deprived of an opportunity to present its case in relation to the July 28 e-mail. Accordingly the Complainant was invited to make further submissions by Wednesday, December 6, 2000, firstly, on whether or not the Panel is entitled to proceed to consider this further matter and to issue an amended or supplemental decision and, if so whether the Panel should do so in the circumstances. The Complainant was invited at the same time to make any further submissions it wished in relation to the July 28 e-mail. The Respondent was invited to file any submissions it wished as to these matters by December 8, 2000. Both the Complainant and Respondent filed further submissions. These are described below.
4. Factual Background – Content of the July 28, 2000 E-mail
It is convenient to set out fully the details of the e-mail concerned. On July 28, 2000 Mr. Ioannou e-mailed the Complainant’s lawyers stating:
"Thank you for your threat of legal action, I am writing to inform you that on 02/7/00 we were offered (and we have accepted) the sum of $30,000 for the domain name timomass.com the offer was made by Mr. Timothy O’mass of Dublin, Ireland, as soon as the funds show in our attorneys client account we will be transferring the ownership of timomass.com to Mr. O’mass."
5. The Claimant’s Further Submissions
The Complainant’s further submission merely states that "the Rules do not contain any regulation entitling the Panel to vacate or suspend the Administrative decision. Thus, the Panel’s decision of November 9 should be reinstated and the domain now immediately transferred to Complainant." The Complainant also submits the July 28 e-mail in evidence. The text of the e-mail is as stated above.
6. The Respondent’s Further Submissions
These may be summarized as follows:
The Respondent requests that the Panel should disregard the July 28 e-mail and that the Panel should withdraw its finding that the name was registered and used in bad faith;
The Respondent submits that the Panel has no alternative but to amend its decision to a finding that registration and/or use in bad faith has not been established. The Panel has no discretion to act otherwise than to remove the direction that the disputed domain name be transferred to the Complainant;
The Respondent also says that the Complainant has based no pleadings, argument, conclusion or assertion on the alleged July 28 e-mail contrary to paragraph 4(a) of the Policy and that therefore the alleged e-mail of July 28 should be wholly disregarded by the Panel;
The Respondent places in evidence a communication from Mr Ioannou of the Respondent to the Respondent’s representatives in these proceedings. This reads as follows:
"Hi Mr. Skinner,
I have outlined what was said on the phone between me and Mr. v Rothkirch. I sent Mr. v Rothkirch the e-mail in question because I received a letter threatening legal action and claiming his client is the only person who should have the domain name. In the e-mail I spelt the domain name wrong and made it fit the hypothetical clients name. My intention was to stop them from tacking (sic) any action, not to try and get them to buy the name. I spoke to Mr. v Rothkirch on the phone and asked if he received my e-mail his opening comments were "Yes, what’s all that about then and discussed the e-mail, I explained the e-mail was to prove the point that his client is not the ONLY person for the name.
Mr. v Rothkirch understood the e-mail was hypothetical and that the client did not exist. I would challenge Mr. v Rothkirch to say this did not happen and that this is not true and correct.
Mr. v Rothkirch states in the latest paper that "The Rules do not contain any regulation entitling the Panel to vacate or suspend the Administrative decision. Thus, the Panel’s decision of November 9th should be reinstated and the domain now immediately transferred to complainant". We must state that if the panel does not have the power to deal with this issue then WIPO must address our claims and deal with it, reminding them of the OUTRIGHT ERRORS by their officers and staff.
The Respondent’s submissions continue:
The Panel therefore cannot now conclude that the name was registered and used in bad faith and therefore cannot now conclude that each of the requirements of paragraph 4(a) of the Policy is present and cannot direct that the disputed domain name be transferred to the Complainant. The Respondent refers to the matter set forth in its motion of November 28, 2000 in relation to procedural errors which show that the parties have not been treated with equality in this matter.
The Respondent says that the Complainant has been given a second opportunity to present its case based on the July 28 e-mail but has failed to do anymore than submit an alleged copy of that e-mail.
The Respondent’s case is that a decision against the Respondent cannot be considered one of the equality in the absence of any case from the Complainant (paragraph 10(b) of the Rules). The Panel is required to determine relevance of evidence which cannot be done in the absence of any case based on it (paragraph 10(d) of the Rules).
6. Discussion and Findings
The Panel has reviewed the Complainant’s further submission and the Respondent’s further submission and the materials annexed thereto. The Panel has also considered the Respondent’s document entitled "motion to vacate". On the basis of this material this Panel’s finding are set out below.
Dealing first with procedural aspects the Panel concludes it is entitled to re-open its earlier decision on the basis that the Respondent was not given an opportunity to present its case in relation to the 28 July e-mail since it was not apparent to the Respondent that this formed part of the case against it. The Panel is conscious that this procedure is entirely written, and normally allows the Respondent only one opportunity to present its case and that there is no right of appeal within the ICANN Policy against the Panel’s decision. These factors in particular dictate that the Respondent should be clearly appraised of what case it has to meet before it files its Response. That at least arguably did not occur here. So far as the Rules are concerned, no explicit provision either for or against reopening the earlier Panel decision exists. The Panel therefore relies on Rule 10(a) allowing it to conduct the proceedings as it considers appropriate and 10(b) requiring it to ensure the Parties are treated with equality.
So far as the substance of the issue is concerned, the 28 July 2000 e-mail is now clearly in evidence. The Panel does not understand the Respondent’s continued reference to the e-mail as "alleged" as Mr Ioannou’s communication (above) makes clear he did send it. The Panel rejects the Respondent’s contention that the e-mail is inadmissible because the Complainant has not specifically based any argument upon it. The position is that the e-mail speaks for itself, subject to any explanation the Respondent may give. Paragraph 4(a) of the Policy requires the Complainant to prove each of the three elements in paragraph 4 of the Policy. That is not necessarily to say that pleadings, arguments, pleading and conclusions are required by the Complainant in relation to every document which forms part of the case. The Panel is entitled to draw inferences as to the probable meaning of the e-mail of July 28 taking into account anything further either party says about that e-mail.
So far as the Respondent’s explanation is concerned, the Panel does not understand it. It is not at all clear how an e-mail purportedly indicating that a variation of the domain name in issue has been purchased by a third party (which it now transpires is merely "hypothetical"), can possibly indicate that other parties have rights in the domain name in issue.
In the absence of any specific comment from the Complainant on the e-mail, the Panel, however, accepts the Respondent’s evidence that the Complainant was not misled by the e-mail.
The fact of the matter is that Timo Maas is the Complainant’s name, and the Respondent’s registration of timomaas.com is an appropriation of his rights in his name. For the reasons set out in the Panel’s previous decision, the Panel remains of the view that the registration was effected in bad faith and the subsequent use was in bad faith. The Panel would be of this view even if the 28 July 2000 e-mail did not exist at all.
The Panel rejects the Respondent’s allegation that he is still being treated unfairly – the Panel’s re-opening of this determination has removed any unfairness in this regard.
The Panel confirms its previous decision that the domain name be transferred to the Complainant.
This Panel directs that its decision dated November 9, 2000 shall stand and that the disputed domain name be transferred to the Complainant.
Dated: Decemeber 13, 2000