World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

DeTeMedien Deutsche Telekom Medien GmbH v. Registrant [2828625] Laura Mouck /Moniker Privacy Services

Case No. D2010-0955

1. The Parties

Complainant is DeTeMedien Deutsche Telekom Medien GmbH of Frankfurt am Main, Germany, represented by Bird & Bird, Germany.

Respondent is Registrant [2828625] Laura Mouck of Belize City, Belize and Moniker Privacy Services of Pompano Beach, Florida, United States of America, represented by Stopp & Stopp, Germany.

2. The Domain Names and Registrar

The disputed domain names <gelbesbranchenbuch.com>, <gelbesbranchenbuch.info>, <gelbesbranchenbuch.net> and <gelbesbranchenbuch.org> (“the Domain Names”) are registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 10, 2010. On June 11, 2010, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the Domain Names. On the same day, Moniker Online Services, LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on June 21, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on June 25, 2010, in which Complainant also requested to add another two domain names to the proceedings. The Center received a couple of emails in Response to the Complaint from a Dr. Stopp on June 27 and June 28, 2010.

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” 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 Respondent of the Complaint, and the proceedings commenced July 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response July 26, 2010. The Center received an email communication from Dr. Stopp objecting to Complainant’s request regarding adding another two domain names to the proceedings on July 8, 2010.

The Center appointed Clive L. Elliott, Gerd F. Kunze and David E. Sorkin as panelists in this matter on August 23, 2010. 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 August 16, 2010, Complainant requested that the proceedings be terminated. Dr. Stopp, who purports to act for Respondent, filed a submission, dated August 17, 2010 responding to the request for termination. Respondent, through Dr. Stopp, accepts that in principle termination of a proceeding by a complainant is possible but Respondent requires certain conditions to be placed on termination (if any). Respondent also asserts that a decision of the Panel is needed in order to effect any such termination.

There is some dispute between the parties as to whether Respondent is properly represented in the proceeding and that the legal counsel purporting to represent Respondent is authorised to do so. Accordingly, there is a dispute as to whether Dr. Stopp has proper standing. The Panel has agreed to determine this matter on the supposition that Dr. Stopp is authorised to act and that Respondent has proper standing, although ultimately it does not materially impact on the Panel’s assessment of the record, and its conclusion in this particular case. That is, because we are entitled to consider, and give appropriate weight to, the August 17, 2010 filing whether or not it is from Respondent.

The Panel accepts Complainant’s argument that it should be entitled to request withdrawal of the Complaint or termination of the proceeding at any time before a decision is made. Typically, as a matter of terminology, a Complaint that is discontinued prior to formal commencement of proceeding under Rule 4(c) would be described as a “withdrawn” complaint, whereas proceedings commenced and then discontinued would be “terminated”. And, as a practical matter, especially where such request is forthcoming only after formal commencement of the proceeding, it may fall to the duly appointed panel to determine whether such request should be granted. Equally, the Panel considers that if it decides to do so, this should be subject to the interests of Respondent being taken into account.

Rule 17 of the UDRP Rules reads:

17. Settlement or Other Grounds for Termination

(a) If, before the Panel's decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding.

(b) If, before the Panel's decision is made, it becomes unnecessary or impossible to continue the administrative proceeding for any reason, the Panel shall terminate the administrative proceeding, unless a Party raises justifiable grounds for objection within a period of time to be determined by the Panel.

It is clear to the Panel in this case that subparagraph (a) above does not apply. We do however apply subparagraph (b) and conclude that in light of the above circumstances it is “unnecessary” to continue the proceeding and we make an order permitting the Complaint to be withdrawn and terminating the proceeding.

We do so however having taken into account the points raised by Respondent in its August 17, 2010 submission.

We hereby grant Respondent’s first request, that we publish our decision to allow withdrawal of the Complaint and order termination of the proceeding. However, we do not consider that it is appropriate to rule definitively that the Complaint (which has not been the subject of a substantive determination by the Panel) cannot be re-filed (effectively, to dismiss with prejudice). Further, we do not consider that we have the jurisdiction to require Complainant to reimburse Respondent for the Center or attorney fees it has incurred, as contended for by Respondent. We do however record that Dr. Stopp's client (whether that be the correct respondent or not) has paid the fee for a three-member panel in this proceeding. We simply record this so that any future panel considering a dispute between the same parties may wish to take these facts into consideration.

For all the foregoing reasons, the Panel orders that the proceedings be terminated forthwith.

Clive L. Elliott
Presiding Panelist

Gerd F. Kunze
Panelist

David E. Sorkin
Panelist
Dated: September 5, 2010

 

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