Decisión del Panel Administrativo nº D2003-0643 of WIPO Arbitration and Mediation Center, December 24, 2003 (case Fiji Rugby Union vs. Webmasters Limited)

• Judge: Clive Elliott, Andrew Brown QC
• Resolution Date: December 24, 2003
• Issuing Organization: WIPO Arbitration and Mediation Center
• Decision: Transfer
• Dominio: Generic Domains

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Fiji Rugby Union v. Webmasters Limited

Case No. D2003-0643

1. The Parties

   The Complainant is Fiji Rugby Union, of Suva, Fiji, represented by Fiona Ey, Samoa.

   The Respondent is Webmasters Limited, of Suva, Fiji, represented by Sheridan Ross, P.C., United States of America.

2. The Domain Name and Registrar

   The disputed domain name is registered with Tucows Inc, of Toronto, Ontario, Canada

3. Procedural History

   The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 15, 2003. On August 15, 2003, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On August 18, 2003, Tucows transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.

   In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 21, 2003, the Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 September 4, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response September 24, 2003. The Response was filed with the Center September 24, 2003. On September 30, 2003, the Respondent requested if it could file a supplementary submission.

   The Center appointed Clive Elliott, Andrew Brown QC and Richard Hill as Panelists in this matter on October 21, f3. The Panel finds that it was properly constituted. Each member of 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.

   On making its own review of the evidence and in particular viewing extracts from the disputed domain name at "www.archive.org" the Panel issued a Procedural Order seeking further submissions from the Complainant and Respondent. In particular, this was directed to the Respondentøs claims to have registered the domain name "at least as early as 1999" when in fact the contemporaneous extracts on "www.archive.org" showed use by a party apparently associated with the Complainant.

   On November 20, 2003, the Complainant filed a supplementary submission and on November 27, 2003, the Respondent filed its supplementary submission.

   The Panel felt that, after considering the Respondentøs supplementary response that there were still some questions about the alleged use of the Respondentøs site after November 15, 2000, because the archived records of the site immediately after that date showed that it resolved to use by MSI Lodging Systems Inc., which appeared to have nothing to do with Fiji Rugby or indeed the Respondent. The Panel also wished to receive further information on when the Respondent first used the domain name and whether this was before or after it received notice of the Complainantøs allegations of rights in the domain name and/or the complaint itself.

   The Panel also felt that it was at least a possibility that there was arguable bad faith in the way that the Respondent is or was using the domain name to divert traffic to its "wwwfijilive.com" site ø even though this had not been argued by the Complainant.

   As a result and an Administrative Panel Procedural Order was issued on December 3, 2003, in the following terms:

   The Panel is currently considering the above matter. It notes that:

1. Respondent asserts that it registered the disputed domain name prior to November 15, 2000.

2. According to web archives at "www.archive.org", during 2001, the disputed domain name was used by or for "MSI Lodging Systems", which doesn't seem to have any relation to either Complainant or Respondent.

   In accordance with Rule 12, we request the President, Chief Executive Officer, Principal, or equivalent officer of Respondent to file an affidavit (not further submission or argument) sworn under penalties of perjury within 7 (seven) days of notification of this order responding to the questions below:

   1. To the best of your personal knowledge, who owned the disputed domain name during 2001?

   2. If it is the Respondent, why was Respondent using the disputed domain name for purposes, which appear to be completely unrelated to Fiji and/or Rugby?

   3. If the Respondent was using the disputed domain name during 2001 to promote "MSI Lodging Systems", at what date and why did it change the website at the disputed domain name to refer to rugby in Fiji?

   4. If Respondent did not own the disputed domain name during 2001, then at what date, from whom, and for what reason did it acquire the disputed domain name?

   5. Did Respondent register or acquire the disputed domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant for valuable consideration in excess of the Respondentøs out-of-pocket expenses incurred directly in relation to the domain name?

   6. By using the domain name, has Respondent intentionally...