Erie County Medical Center
Corporation v. Kaleida Health
Claim Number: FA0704000970690
PARTIES
Complainant is Erie County Medical Center Corporation (“Complainant”), represented by Marybeth
Priore, of Colucci & Gallaher, P.C, 2000
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wnyhospitalofchoice.com>, <wnyhospitalofchoice.net>, <wnyhospitalofchoice.org>, <wnyshospitalofchoice.com>, <wnyshospitalofchoice.net>, <wnyshospitalofchoice.org>, <westernnewyorkhospitalofchoice.com>, <westernnewyorkhospitalofchoice.net>, <westernnewyorkhospitalofchoice.org>, <westernnewyorkshospitalofchoice.com>, <westernnewyorkshospitalofchoice.net>, <westernnewyorkshospitalofchoice.org>, <westernnyhospitalofchoice.com>, <westernnyhospitalofchoice.net>, <westernnyhospitalofchoice.org>, <westernnyshospitalofchoice.com>, <westernnyshospitalofchoice.net> and <westernnyshospitalofchoice.org>,
registered with Go Daddy Software, Inc.
PANEL
The undersigned certifies that he has acted independently and
impartially and to the best of his knowledge has no known conflict in serving
as Panelist in this proceeding.
Honorable Karl V. Fink (Ret.), as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on April 25, 2007; the
National Arbitration Forum received a hard copy of the Complaint on April 26, 2007.
On April 25, 2007, Go Daddy Software, Inc. confirmed by e-mail to
the National Arbitration Forum that the <wnyhospitalofchoice.com>, <wnyhospitalofchoice.net>, <wnyhospitalofchoice.org>, <wnyshospitalofchoice.com>, <wnyshospitalofchoice.net>, <wnyshospitalofchoice.org>, <westernnewyorkhospitalofchoice.com>, <westernnewyorkhospitalofchoice.net>, <westernnewyorkhospitalofchoice.org>, <westernnewyorkshospitalofchoice.com>, <westernnewyorkshospitalofchoice.net>, <westernnewyorkshospitalofchoice.org>, <westernnyhospitalofchoice.com>, <westernnyhospitalofchoice.net>, <westernnyhospitalofchoice.org>, <westernnyshospitalofchoice.com>, <westernnyshospitalofchoice.net> and <westernnyshospitalofchoice.org>
domain names are registered with Go Daddy
Software, Inc. and that Respondent is the current registrant of the
names. Go
Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the
“Policy”).
On April 27, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of May 17, 2007 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent via e-mail,
post and fax, to all entities and persons listed on Respondent’s registration
as technical, administrative and billing contacts, and to postmaster@wnyhospitalofchoice.com, postmaster@wnyhospitalofchoice.net, postmaster@wnyhospitalofchoice.org, postmaster@wnyshospitalofchoice.com, postmaster@wnyshospitalofchoice.net, postmaster@wnyshospitalofchoice.org, postmaster@westernnewyorkhospitalofchoice.com, postmaster@westernnewyorkhospitalofchoice.net, postmaster@westernnewyorkhospitalofchoice.org, postmaster@westernnewyorkshospitalofchoice.com, postmaster@westernnewyorkshospitalofchoice.net, postmaster@westernnewyorkshospitalofchoice.org, postmaster@westernnyhospitalofchoice.com, postmaster@westernnyhospitalofchoice.net, postmaster@westernnyhospitalofchoice.org, postmaster@westernnyshospitalofchoice.com, postmaster@westernnyshospitalofchoice.net and postmaster@westernnyshospitalofchoice.org by e-mail.
On May 10, 2007, Respondent requested, pursuant to Supplemental Rule 6, an extension of time to respond to the Complaint. On May 11, 2007, the National Arbitration Forum, with Complainant’s consent, granted Respondent an extension and set a new deadline of June 6, 2007 for a filing of a Response.
A timely Response was received and determined to be complete on June 6, 2007.
An Additional Submission by Complainant was received by the Forum on
June 12, 2007 and was deemed timely.
An Additional Submission by Respondent was received by the Forum on
June 19, 2007 and was deemed timely.
On June 11, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
makes the following assertions:
1. The disputed domain names are identical
to Complainant’s WESTERN NEW YORK’S
2. Respondent does not have any rights or
legitimate interests in the disputed domain names.
3. Respondent registered and used the
disputed domain names in bad faith.
B. Respondent
denies Complainant’s assertions and asserts Complainant can not prove it is
entitled to the relief requested.
On or about April
25, 2007, Complainant filed an action against Respondent entitled Erie
County Medical Center Corporation v. Kalieida Health, No. 2007-4012
in the Superior Court of the State of
Rule 18 of the Policy provides in pertinent part:
Effect of
Court Proceedings
(a) In the event of any legal proceedings initiated prior to or during an administrative proceeding in respect of a domain-name dispute that is the subject of the complaint, the Panel shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to proceed to a decision.
Applying Rule 18, the Panel finds this
matter should not be decided until the court proceeding is resolved. See AmeriPlan Corp. v. Gilbert, FA 105737 (Nat. Arb. Forum Apr. 22, 2002) (finding that Policy ¶ 4(k) requires that ICANN
not implement an administrative panel’s decision regarding a UDRP dispute until
the court proceeding is resolved and therefore, a panel should not rule on a
decision when there is a court proceeding pending because no purpose is served
by the panel rendering a decision on the merits to transfer the domain name, or
have it remain, when a decision regarding the domain name will have no
practical consequence); see also
Lutton Invs., Inc. v. Darkhorse Distrib., Inc., FA 154142 (Nat. Arb. Forum June 4, 2003) (stating that “[t]he pending
arbitration between the parties to this dispute, touching on matters directly
relevant to the resolution of a claim under the UDRP, justifies terminating the
present administrative proceeding” and dismissing the complaint without
prejudice).
Accordingly, the Panel orders that the Complaint be and hereby is DISMISSED without prejudice to the Complainant bringing a further proceeding in the event the pending court action does not resolve the dispute over the domain names.
Honorable Karl V. Fink (Ret.), Panelist
Dated: June 25, 2007
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