Decisión del Panel Administrativo nº D2009-1661 of WIPO Arbitration and Mediation Center, January 19, 2010 (case Inter-Continental Hotels Corporation, Six Continents Hotels, Inc. v. Daniel Kirchhof)
| Judge | John Swinson |
| Resolution Date | January 19, 2010 |
| Issuing Organization | WIPO Arbitration and Mediation Center |
| Decision | Transfer, denied in part |
| Dominio | Generic Domains |
1. The Parties
The Complainants are Inter-Continental Hotels Corporation and Six Continents Hotels, Inc. of Atlanta, Georgia, United States of America, represented by The Gigalaw Firm, United States.
The Respondent is Daniel Kirchhof of Leipzig, Germany.
2. The Domain Names and Registrar
The 1,542 disputed domain names, which are set out in Annex A to this decision, are (or were) registered with PSI-USA, Inc. dba Domain Robot.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 7, 2009. On December 7, 2009, the Center transmitted by email to PSI-USA, Inc. dba Domain Robot a request for registrar verification in connection with the disputed domain names. On December 7, 2009, PSI-USA, Inc. dba Domain Robot transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 10, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 30, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 31, 2009.
On January 4, 2010, the Complainant requested that 13 disputed domain names which had been included in the original Complaint and which the registrar advised had expired, and which the Complainant apparently was able to subsequently register, be withdrawn from the Complaint. On January 5, 2010, the Center communicated to the Parties that, further to the Complainant’s request and subject to any views the Panel may have on appointment regarding the issue, the 13 domain names would be regarded as withdrawn from the Complaint. The Center notes that the registrar of record for these 13 domain names is now MarkMonitor, Inc.
The Center appointed John Swinson as the sole panelist in this matter on January 5, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Communications occurring after Panel appointment
On January 11, 2010, the Respondent contacted the Center and made enquiries regarding the possibility of settlement of these proceedings. The Center, following consultation with the appointed Panel, referred both Parties to paragraphs 10 and 17 of the Rules, and asked that the Center be promptly notified of any settlement.
On January 12, 2010, the Complainant contacted the Center and requested that the Center re-confirm “independently and/or with the Registrar” that all of the disputed domain names remained locked and registered until the outcome of the proceeding.
On January 14, 2010, the Center forwarded a communication received from the registrar which seemingly concerned 782 of the disputed domain names. According to this communication from the registrar, the Respondent had requested deletion of those domain names. The Center requested that the domain names remain locked pending resolution of the matter, notified both Parties of the registrar’s communication, and invited the Complainant to comment on the matter prior to January 15, 2010 if it wished to do so.
On January 14, 2010, the Center received from the registrar a clarification of its earlier communication that an error had occurred, that the above-mentioned 782 domain names were not in fact under dispute in the present WIPO proceedings, and confirming that (other than the 13 disputed domain names in Annex A.3 which had been deleted prior to the dispute) the 1,529 disputed domain names in the present WIPO matter “will remain locked and registered until a decision has been reached.” The Center forwarded this communication to the Parties on January 14, 2010, and indicated that accordingly it would no longer be necessary for the Complainant to submit comments on the matters raised in the registrar’s earlier communication.
On January 14, 2010, Mr. Witzmann (on behalf of the Respondent) stated that the Respondent “is willing to give his consent to transfer, not to simply delete or release the domains in dispute” (original emphasis). The Center invited the Complainant to comment on Respondent’s communication of January 14, 2010. The Complainant did so on the same day advising that it wished to proceed with the Panel decision, but that the Respondent’s consent to transfer the disputed domain names should be taken into account in any decision.
The Panel deems it appropriate to consider all of these communications in its decision, as they are relevant to the issues and both Parties were given adequate opportunity to comment on the matters raised.
5. Preliminary issues
Withdrawn domain names
As mentioned above, the Complaint filed in this proceeding originally related to 1,542 domain names. See Annex A. On December 7, 2009, in its response to the Center’s request for registrar verification, PSI-USA, Inc. dba Domain Robot advised the Center that 13 domain names (see Annex A.3) could not be locked in accordance with normal procedures, because they had been deleted prior to the filing of the dispute. The Center advised both Parties of this fact on December 8, 2009, and invited both Parties to contact the registrar to resolve the issue, should they wish to do so, pursuant to the ICANN Expired Domain Deletion Policy.
All 13 domain names were later registered by the Complainant Six Continents Hotels, Inc. on or around January 4, 2010. As such, the Complainant requested that these 13 domain names be removed from the Complaint.
From the evidence available on the record, the Respondent did not attempt to contact the registrar in relation to these domain names.
The 13 disputed domain names now owned by the Complainant and accordingly requested to be withdrawn from the Complaint are set out in Annex A.3.
The Panel agrees that it is appropriate in the circumstances for the above-referenced 13 domain names to be removed from these proceedings, and their requested withdrawal is hereby formalized by the Panel as set out in Annex A.3.
Multiple complainants
Two companies have brought this Complaint: Six Continents Hotels, Inc and Inter-Continental Hotels Corporation. Six Continents Hotels, Inc. owns certain trade marks related to the dispute, while Inter-Continental Hotels Corporation owns others. The Complainants have requested that the disputed domain names be transferred to Six Continents Hotels, Inc. if they are successful.
The issue of multiple complainants was recently discussed in Fulham Football Club (1987) Limited, Tottenham Hostpur Public Limited, West Ham United Football Club PLC, Manchester United Limited, The Liverpool Football Club And Athletic Grounds Limited v. Domains by Proxy, Inc./ Official Tickets Ltd, WIPO Case No. D2009-0331. Reference was made in that case to the extent the Policy and Rules deal with this issue:
“Paragraph 3(c) of the Rules, provides that a complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder. Paragraph 4(f) of the Policy provides that where there are multiple disputes between a complainant and respondent, either party may petition to consolidate the disputes before a single administrative panel. Under paragraph 4(f) of the Policy the consolidation petition is made to the first administrative panel appointed to hear a pending dispute between the Parties, this administrative panel may consolidate before it any or all such disputes in its sole discretion, provided the disputes are governed by the Policy. Under paragraph 10(e) of the Rules it is for the panel to decide a request by a party to consolidate multiple domain name disputes in accordance with the Policy and Rules.
Neither the Policy nor the Rules expressly provides for the consolidation of multiple complainants in a single complaint. While both the Policy and Rules use the term ‘complainant’ throughout, the Policy and Rules do not expressly preclude multiple legal persons from falling within the term ‘complainant’.”
Moreover, in Mucos Emulsions, GmbH and Marlyn Nutraceuticals, Inc. v. Esex.org and Kim Taeho, WIPO Case No. D2000-1513 it was stated ten years ago:
“In Ken Done, Ken Done & Associates Pty Limited, and Ken Done Down Under Pty Limited v. Ted Gibson, eResolution Case No. AF-0638, the panel concluded that a complaint may be submitted by multiple related parties where there are common interests in a single domain name. In that case, the joint complainants failed to present their claim adequately as they obscured the trademark ownership interests among each of the parties, requested an ambiguous remedy by not stating to which of the Complainants the contested domain name should be transferred to, and avoided the identification of each party's stake in the remedy. That is not the situation here. The panel notes that a number of cases under the ICANN Policy have been decided in favour of the Complainant despite the fact that more than one Complainant instituted the proceeding. (See Bettina Liano and Bettina Liano Pty Limited v. Khanh Kim Huynh, WIPO Case No. D2000-0891; NFL Properties, Inc. et al. v. Rusty Rahe, WIPO Case No. D2000-0128).”
The Complainants submit that this is an...
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