Glimcher
University Mall v. GNO, Inc.
Claim Number: FA0107000098010
PARTIES
The Complainant is Glimcher University Mall, Columbus, OH (“Complainant”) represented by Randolph W. Alden, of Alden, Taylor & Durkin, LLC. The Respondent is GNO, Inc., New Orleans, LA (“Respondent”) represented by John B. Berryhill.
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <universitymall.com>, registered with eNom.
PANEL
The undersigned certify that they have acted independently and impartially and to the best of their knowledge, have no known conflicts in serving as Panelists in this proceeding.
Diane Cabell, Bruce Meyerson and Tyrus R. Atkinson, Jr., as Panelists.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on July 10, 2001; the Forum received a hard copy of the Complaint on July 11, 2001.
On July 10, 2001, eNom confirmed by e-mail to the Forum that the domain name <universitymall.com> is registered with eNom and that the Respondent is the current registrant of the name. eNom has verified that Respondent is bound by the eNom 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 July 12, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 1, 2001 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@universitymall.com by e-mail.
A timely response was received and determined to be complete on August 1, 2001.
After receiving Respondent's Response, Complainant requested a withdrawal of its Complaint pursuant to the Forum's Supplemental Rule 12(b). Respondent objected to the withdrawal of the Complaint without prejudice and without a determination on its allegation of Bad Faith Reverse Domain Name Hijacking under ICANN Rule 15(e). On August 7, 2001, the Forum allowed the Complaint to be withdrawn with prejudice. The Forum further concluded that consideration of Respondent's claim under ICANN Rule 15(e) was a matter for the Panel to determine.
On
August 9, 2001, pursuant to Respondent's request to have the dispute decided by
a three-member Panel, the Forum
appointed Diane Cabell, Bruce Meyerson and Tyrus R. Atkinson, Jr., as Panelists.
RELIEF SOUGHT
Respondent requests that a determination of Bad Faith Reverse Domain Name Hijacking be made against Complainant.
PARTIES’ CONTENTIONS
A. Respondent
Respondent is GNO, Inc., of New Orleans, Louisiana.
Respondent is in the business of Internet consulting services.
On July 1, 2001, Respondent registered the domain name universitymall.com.
On July 9, 2001, Complainant filed
a domain name dispute proceeding against Respondent regarding the domain name universitymall.com.
Respondent filed its Response on August 1, 2001. The Response requested a finding of Reverse Domain Hijacking against Complainant.
Respondent contends that it is entitled to a finding of Reverse Domain Hijacking on the grounds that Complainant certified that it served Respondent with a copy of the Complaint when no such service was made upon Respondent; that Complainant submitted a perjured affidavit regarding a Lexis search; that Complainant, prior to submitting the affidavit, had a minimal duty, analogous to Federal Rule 11, for the oath of the affidavit to be made upon adequate investigation; and that Complainant by failing to conduct any relevant investigation to support its allegations and by filing the dispute, prevented Respondent from transferring the domain name to his client such constituting reckless conduct on the part of Complainant which constitute tortuous interference in the relationship between Respondent and his client.
It is an abuse of the Policy to fail to follow the Rules, to submit contorted and contrived evidence; to engage in perjury, or at best, untrue statements under oath with no reasonable factual basis and reckless disregard for the truth; to fail to exercise due diligence to support false and disparaging allegations; and to interfere with a legitimate business relationship.
B. Complainant
Complainant is Glimcher University Mall, Limited Partnership, a Delaware limited partnership located in Columbus, Ohio.
Complainant operates a shopping
center in Tampa, Florida, which it refers to and advertises as University Mall.
Complainant filed Complainant’s Pre-Panel Selection Request To Withdraw Complaint, on August 6, 2001.
A Request To Withdraw Complaint With Prejudice Granted-Case Continued On Other Grounds was filed August 8, 2001.
Respondent has no basis to prevent the withdrawal of the Complaint prior to panel selection.
Respondent’s claim that the arbitration should proceed on its claim of reverse domain name hijacking is spurious as the withdrawal of the complaint negates that concept.
C. Additional Submissions
One additional document presented is an e-mail message from the Respondent to the Provider demanding that the reverse domain name hijacking issue proceed to a panel for decision even though the Complaint stands dismissed with prejudice. This document is dated August 6, 2001. The second document presented is an e-mail from the Complainant to the Provider agreeing to dismissal with prejudice because Respondent objected to a dismissal without prejudice and responding to Respondent’s e-mail of August 6, 2001. It is dated August 6, 2001.
FINDINGS
1. Complainant filed its domain name dispute Complaint against Respondent on July 9, 2001 requesting a single member arbitration panel.
2. Respondent filed it Response on August 1, 2001, requesting a three-member arbitration panel.
3. Respondent demanded a finding of reverse domain name hijacking.
4. Complainant submitted a request to withdraw its Complaint, without prejudice, on August 6, 2001.
5. Respondent objected to Complainant’s request to withdraw its Complaint and requested that a three-member panel decide the reverse domain name hijacking issue notwithstanding withdrawal of the Complaint.
6. Complainant agreed to withdraw its Complainant with prejudice.
7. On August 8, 2001, the Complaint was withdrawn with prejudice. As part of this order it was stated: “The request made by Respondent for a ruling on its claim of Reverse Domain Name Hijacking will proceed to a Panel for final determination.”
8. The withdrawal was made after commencement and prior to panel selection.
9. Complainant is authorized to withdraw its Complaint after commencement and prior to panel selection.
10. Once the Complaint was withdrawn, the merits of the domain name dispute proceeding were no longer before the Panel for determination.
11. A decision on reverse domain name hijacking is to be made in conjunction with a decision on the merits of a complaint.
12. Complainant, after withdrawing its Complaint with prejudice, cannot be found to be attempting to deprive the Respondent of the domain name at issue.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Bad Faith - Reverse Domain Name
Hijacking
Respondent contends that it has a right to proceed with its reverse domain name hijacking claim after the Complainant has withdrawn its Complaint. Complainant contends that a withdrawal terminates Respondent’s right to proceed with the reverse domain name hijacking claim.
The purpose of the Uniform Domain Name Dispute Resolution Policy is to permit a party to file a complaint that requires a domain name holder to submit to a mandatory administrative proceeding. In that proceeding the applicable dispute is limited. The dispute must consist of factual situations where the domain name is identical or confusingly similar to a trademark, or service mark in which the complainant has rights; and the domain name holder has no rights or legitimate interests in respect of the domain name; and the domain name has been registered and is being used in bad faith. Paragraph 4(a). No other disputes are contemplated by the Policy.
The only remedies available under the Policy are for the benefit of a complainant. The available remedies are limited to requiring the cancellation of a domain name or transfer of the domain name. Paragraph 4(i). No remedies are available to a respondent. If the complainant fails to prove the elements of an applicable dispute, as defined under the Policy, the complaint is dismissed. Respondent remains in the position it occupied regarding the domain name that it had prior to commencement of the administrative proceeding.
The purpose of the response is to include any and all bases for the Respondent to retain registration and use of the disputed domain name and to respond specifically to the statements and allegations contained in the complaint. Rules for Uniform Domain Name Dispute Resolution Policy, Rule 5(b)(i). The response is designed under the Rules to be defensive in nature. Reverse domain name hijacking is not denominated under the Policy, Rules, or Supplemental Rules, as a counterclaim or affirmative defense. It is not a remedy available to a respondent.
Reverse domain name
hijacking is defined in the Rules as using the Policy in bad faith to attempt
to deprive a registered domain name holder of a domain name. Rules, Paragraph 1.
There is no requirement that a respondent allege reverse domain name hijacking as part of a response. There is no indication in the Rules that such an allegation is properly made in a response. Rule 5.
The decision on reverse domain name hijacking is addressed entirely to the discretion of the panel deciding the dispute. “If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.” Rule 15(e). It is not necessary for the respondent to allege reverse domain name hijacking or bad faith to place those issues before a panel. The Rules place these issues before the panels in all cases.
Rule 15(a) states that a Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In deciding a complaint, Rule 15(e) states that, if “after considering the submissions” the Panel finds bad faith or that the complaint was brought to harass the domain name holder, the Panel shall declare that in the decision.
An allegation in a response of reverse domain name hijacking is nothing more than a suggestion that the panel consider the duty imposed upon the panel by the Rules to be on guard against abuse of the arbitration process. This duty required of the panel only exists when the panel considers a complaint on the basis of the statements and documents submitted. Rule 15(a)(e). When there is no complaint to consider on the merits, the question arises as to whether a panel is authorized to consider bad faith issues under Rule 15. It is not necessary to fully address that issue in this proceeding.
The issue in this proceeding is whether a panel can or should consider the content of a complaint dismissed with prejudice in reaching a decision on reverse domain name hijacking insisted upon by the Respondent.
Rule 12 of the National Arbitration Forum Supplementary Rules provides for withdrawal of Complaints. In the present case, the Complaint was withdrawn under Rule 12(b) prior to the selection of the Panel. But for the novelty of the situation, the Panel would be unable to review the submissions at all. Therefore it could not act under Rule 15(e) which allows a Reverse Domain Name Hijacking decision only after consideration of submissions. To interpret Rule 12(b) otherwise, would essentially negate a withdrawal.
Respondent complains that it was caused to go to some expense to prepare and file the Response. The Policy imposes this responsibility upon the Respondent in all cases. No method is set out in the Policy, Rules, or Supplemental Rules, to compensate a respondent for such costs.
Respondent states that filing of the Complaint constituted a tortuous interference to a business relationship with its client. Respondent further contends that its good name was harmed by the allegations in the Complaint. These causes of action cannot be decided in a domain name dispute arbitration proceeding. If Respondent elects to proceed with those causes of action, it must resort to a court of competent jurisdiction to litigate the claims.
It is the ruling of this Panel that when the Complainant dismisses the Complaint with prejudice prior to a panel being selected, the Complainant cannot be found to have attempted to deprive the Respondent of the domain name in question. Complainant has, by its withdrawal with prejudice, conceded the rights to the domain name to Respondent. A finding of reverse domain name hijacking conveys no greater benefit to the Respondent. No duty is imposed upon the Panel to treat the allegation of reverse domain name hijacking as one that must be decided at the insistence of Respondent. A claim of reverse domain name hijacking is merely ancillary to a decision on the merits of a complaint.
Respondent’s claim of reverse domain name hijacking cannot be considered by a Panel where the Complaint was withdrawn with prejudice prior to appointment of the Panel.
Diane Cabell, Bruce Meyerson and Tyrus R. Atkinson, Jr., Panelists
Tyrus R. Atkinson, Chairman, for the Panel.
Dated: August 23, 2001
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