Olympic Airways S.A. v. K.
Papageorgopoulos
Claim Number: FA0308000180701
PARTIES
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.
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.
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 postmaster@olympicairways.com. 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.
FINDINGS
There is no basis for continuing the
suspension or for proceeding to a decision.
DISCUSSION
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.
DECISION
It is ordered that this administrative
proceeding be terminated without prejudice.
Alan L. Limbury, Panelist
Dated: February 1, 2005
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