Decisión del Panel Administrativo nº D2006-0534 of WIPO Arbitration and Mediation Center, July 28, 2006 (case vs. Future Media Architects, Inc.)

• Judge: Thomas Webster
• Resolution Date: July 28, 2006
• Issuing Organization: WIPO Arbitration and Mediation Center
• Decision: Complaint denied with dissenting opinion
• Dominio: Generic Domains

BAWAG P.S.K. Bank f¸r Arbeit und Wirtschaft und ÷sterreichische Postsparkasse Aktiengesellschaft v. Future Media Architects, Inc.

Case No. D2006-0534

1. The Parties

   The Complainant is BAWAG P.S.K. Bank f¸r Arbeit und Wirtschaft und ÷sterreichische Postsparkasse Aktiengesellschaft, Vienna, Austria, represented by Schˆnherr Rechtsanwalte GmbH, Austria.

   The Respondent is Future Media Architects, Inc., Tortola, United Kingdom of Great Britain and Northern Ireland, represented by Kenyon & Kenyon LLP, New York, United States of America.

2. The Domain Name and Registrar

   The disputed domain name [psk.com] is registered with Moniker Online Services, Inc.

3. Procedural History

   The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 27, 2006 by email and on May 1, 2006, by hardcopy. On April 28, 2006, the Center transmitted by email to Moniker Online Services, Inc. a request for a registrar verification in connection with the domain name at issue. On May 3, 2006, Moniker Online Services, Inc. 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. The Center verified that 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 on May 4, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 24, 2006. The Response was filed with the Center on May 24, 2006.

   On May 30, 2006, the Center received a Supplemental Filing from the Complainant responding to arguments that the Respondent submitted in its Response.

   On June 2, 2006, the Respondent filed with the Center a Reply to the Complainant's Supplemental Filing.

   The Center appointed Thomas Webster, Christian Gassauer-Fleissner and David W. Quinto as panelists in this matter on June 27, 2006. 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.

4. Ruling on the unsolicited Replies

   Paragraph 12 of the Rules provides that the Panel may, in its sole discretion, request further statement from either of the parties. Thus, no party has the right to insist upon the admissibility of additional evidence. Moreover, there is no right to file a Response to an unsolicited Reply admitted by the Panel. It is a matter for the Panel to decide in its discretion in each case whether fairness requires a Respondent to be afforded such an opportunity pursuant to paragraph 10(b) of the Rules.

   The Administrative Panel has considered the Supplemental Filings and, by majority decision, has decided to consider the Supplemental Filings in rendering the Panel's decision. This appears particularly appropriate where both Complainant and Respondent have made supplementary filings.

5. Factual Background

   The Complainant in these administrative proceedings is BAWAG P.S.K. Bank f¸r Arbeit und Wirtschaft und ÷sterreichische Postsparkasse Aktiengesellschaft. The Complainant was founded in October 2005 through a merger of the banks BAWAG and ÷sterreichische Postsparkasse Aktiengesellschaft. This merger created the biggest Austrian retail bank.

   The firm name of ÷sterreichische Postsparkasse Aktiengesellschaft, one of the banks that merged in October 2005, is commonly abbreviated as P.S.K. Founded in 1882, P.S.K. became one of the largest Austrian banks. It was and still is very well known all over the country as every post office also is a provider of banking services for P.S.K. Today approximately 1,300 post offices exist in Austria providing banking services under the sign "P.S.K".

   ÷sterreichische Postsparkasse Aktiengesellschaft is registered as the owner of the Austrian trademark AT 098654 "P.S.K." and the identical international trademark IR 816366 with protection in the Czech Republic, Hungary, Slovenia and Slovakia. The priority date of these trademarks is December 7, 1981. As a result of the merger of ÷sterreichische Postsparkasse Aktiengesellschaft with BAWAG forming the new company BAWAK P.S.K. Bank f¸r Arbeit und Wirtschaft und ÷sterreichische, Postsparkasse Aktiengesellschaft, the Complainant became the legal successor of ÷sterreichische Postsparkasse Aktiengesellschaft and thereby the owner of the mentioned registered marks.

   The Respondent is a company organized and existing under the laws of the British Virgin Islands but based in the State of Virginia in the United States. The Respondent's business is as an Internet development company specializing in the development of its own Internet properties, Internet portals and technology. The Respondent has a business of acquiring potentially attractive internet names, including names comprised only of several letters. The Respondent has used the domain name [psk.com] since July 17, 2003, when it purchased the disputed domain name from Pool.com.

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