Olympic Airways S.A. v. K. Papageorgopoulos
Claim Number: FA0308000180701
Complainant is Olympic Airways S.A., (“Complainant”), represented by Thomas J. Whalen Esq., of Condon & Forsyth LLP, 1016 16th St. N.W. Ste. 700, Washington DC, 20036. Respondent is Mr. K. Papageorgopoulos, (“Respondent”) representing himself, 24 Rue J. L’Aveugle, Luxembourg, L-1148.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <olympicairways.com>, registered with Names4Ever.
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.
Alan L. Limbury as Panelist.
PROCEDURAL HISTORY LEADING TO TERMINATION OF THIS PROCEEDING
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on August 6, 2003, requesting that the domain name be transferred from Respondent to Complainant. The Forum received a hard copy of the Complaint on August 11, 2003.
On August 26, 2003, Names4Ever confirmed by e-mail to the Forum that the domain name <olympicairways.com> was registered with Names4Ever and that Respondent was the current registrant of the name. Names4Ever verified that Respondent was bound by the Names4Ever registration agreement and had 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 August 26, 2003 the Forum drew to Complainant’s attention certain formal deficiencies in the Complaint and afforded Complainant an opportunity to amend it. On September 2, 2003 an amended Complaint was filed and on September 4, 2003, a Notification of Complaint and Commencement of Administrative Proceeding was transmitted by e-mail, post and fax by the Forum to Respondent and all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts. It was also sent by e-mail to firstname.lastname@example.org. The Notification set a deadline of September 24, 2003 by which Respondent could file a Response to the Complaint,
A Response was received in hard copy on September 23, 2003 and electronically the next day. It was determined to be complete on September 24, 2003. It took the form of a copy of a letter dated April 3, 2003 from Respondent’s lawyer instructing the Registrar “to cancel the subscription” of Respondent in relation to the domain name. Respondent has played no further part in this proceeding, although all relevant communications have been sent to him.
By letter dated September 23, 2003, James L. Bikoff Esq., of Silverberg Goldman & Bikoff, counsel to the International Olympic Committee (“the IOC”) notified the Forum that the IOC was one of three plaintiffs in proceedings commenced in 2000 in the U.S. District Court for the Eastern District of Virginia brought in rem against the domain name <olympicairways.com> and 1,799 others; that the domain name was under “registrar lock” pending “disposition of the domain name” and was under the control of the Court; and that an anticipated motion for default judgment against the domain name was expected to be granted, in which event it would be transferred to the plaintiffs by court order. Complainant was not a plaintiff in those proceedings.
Mr. Bikoff respectfully requested denial of Complainant’s request for transfer to it of the domain name and also requested termination of this administrative proceeding under ICANN Rule 18(a), citing Readygo, Inc. v. Michael Lerner Productions, D2000-0298; Innovative Merchant Solutions, LLC v. S and S Bankcard Systems, FA109721 (Nat. Arb. Forum June 4, 2002); NAT International v. Suez, FA105930 (Nat. Arb. Forum May 15, 2002) and BroadBridge Media, LLC v. HyperCD.com, 106 F. Supp. 2d 505.
On October 8, 2003 Complainant, through its Counsel, sought suspension of this administrative proceeding, saying “Complainant would like the opportunity to reinstate the proceedings in the event that the International Olympic Committee does not prevail in litigation in Virginia.”
On October 10, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury as Panelist.
Rule 18(a) provides:
“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.”
In ruling on the requests for suspension or termination, the Panel considered that the expression “a domain-name dispute that is the subject of the complaint” [emphasis added] appears to contemplate that the legal proceeding should be between the same parties. Indeed that was the situation in two of the cases cited by the IOC: Innovative Merchant Solutions, LLC v. S and S Bankcard Systems and NAT International v. Suez. In both cases the administrative proceeding was terminated under Rule 18(a).
However, Rule 18(a) has been applied in relation to litigation between a third party and the domain name registrant. In McNeil Ohio Corp. v. Nat’l Adver., Inc. D2001-0409 (WIPO June 21, 2001), in terminating the proceeding the learned panelists said:
“The circumstances involved in this case warrant exercise of our discretion. A third party with a prima facie valid claim to the mark LINCOLN has initiated a legal proceeding regarding the domain name at issue here, and the Registrar has transferred control of the disputed domain name to the Court in that case. What results is essentially a three-way dispute between two trademark owners and a domain name registrant which is not within the purview of the UDRP or this administrative proceeding. Moreover, the existence of the court order taking custody of the domain name in dispute and the Registrar Certificate would effectively prevent this Panel from transferring the domain name, which is the relief requested in this proceeding.”
Here the domain name registrant has disavowed any interest in the disputed domain name. The Panel considered that the proceeding should be suspended so that Complainant might have the opportunity to reinstate it should the IOCs litigation against the disputed domain name fail. Accordingly, on October 27, 2003, the Panel ordered:
“that the administrative proceeding be suspended, under Rule 18(a), until ten (10) calendar days after the conclusion of the litigation in Civil Action No. 00-1018-A (E.D. Va. 2000) in the U.S. District Court for the Eastern District of Virginia. If during this period, neither party requests that the proceeding be reinstated, the proceeding will be dismissed without prejudice”.
On or about January 26, 2005 the Forum received a copy of a Court order issued on March 15, 2004 in the Virginia proceedings, ordering that judgment be entered against the domain name <olympicairways.com> and that the domain name <olympicairways.com> be transferred or cancelled as the plaintiffs direct.
In light of this order, the Forum afforded the parties an opportunity to object to the dismissal of these proceedings. On January 27, 2005 Complainant objected to dismissal at this time, saying that subsequent to the Court’s order, the IOC “purportedly transferred” the domain name <olympicairways.com> to Complainant. However, the transfer is not satisfactory to Complainant, which contends that the contact information submitted to the Registrar is incorrect. Accordingly Complainant requests that this proceeding not be dismissed until the register is updated with the correct information.
There is no basis for continuing the suspension or for proceeding to a decision.
The Court’s order of March 15, 2004 leaves no issue to be decided between the parties to this administrative proceeding, which was suspended in October 2003 so that it might be reinstated if the IOC failed in its litigation against the domain name. The IOC having succeeded in that litigation over 10 months ago, it would be inappropriate for the suspension of this administrative proceeding to continue so as to facilitate completion of an arrangement between Complainant and the IOC for the transfer of the domain name to Complainant, something wholly outside the scope of the Policy.
It is ordered that this administrative proceeding be terminated without prejudice.
Alan L. Limbury, Panelist
Dated: February 1, 2005
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