World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Andrew Prince v. Registrant [3197190]: Sven Echternach / Moniker Privacy Services (2579748)

Case No. D2010-1661

1. The Parties

The Complainant is Andrew Prince of London, United Kingdom of Great Britain and Northern Ireland, represented by himself.

The Respondent is Registrant [3197190]: Sven Echternach of Frankfurt, Germany; Moniker Privacy Services (2579748) of Pompano Beach, Florida, United States of America, represented by counsel.

2. The Domain Name and Registrar

The disputed domain name <prince.com> is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 1, 2010. On October 1, 2010, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On October 1, 2010, Moniker Online Services, LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 5, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 5, 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 the Respondent of the Complaint, and the proceedings commenced on October 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 26, 2010. The Response was filed with the Center on October 27, 2010.

The Complainant submitted the supplemental filings to the Center respectively on October 31, 2010, November 4, 2010 and November 7, 2010. The Center received the corresponding supplemental filings from the Respondent respectively on November 3, 2010 and November 5, 2010.

The Center appointed Wolter Wefers Bettink, M. Scott Donahey and Richard G. Lyon as panelists in this matter on November 12, 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.

4. Factual Background

The Complainant is the co-owner of the registered UK trade mark PRINCE (word and device), filed on February 11, 1997.

Prior to this, on February 28, 1995, the Complainant registered the domain name <prince.com> (the "Domain Name").

The Domain Name was registered in the name of the Respondent Moniker Privacy Services between March 30 and April 2 , 2010. The Respondent Sven Echternach is the current beneficial owner of the Domain Name registration.

5. Parties’ Contentions

A. Complainant

According to the Complainant, the Domain Name was transferred to the Respondent Moniker Privacy Services at the beginning of April 2010 without his knowledge or consent. The Complainant contends that he only found out about this transfer when he received a letter on September 22, 2010 from counsel for the registrar of the Domain Name demanding that he pay a commission on the sale of the Domain Name, based on an exclusive brokerage agreement between the Complainant and the registrar. The Complainant then inquired with the previous registrar of the Domain Name which informed him that it had received on March 24, 2010 an e-mail from the Complainant's e-mail address with the request to transfer the Domain Name to the Respondent Moniker Privacy Services. After verifying the Complainant's password with him, the previous registrar transferred the Domain Name to the Respondent.

The Complainant submits that he "never sought to sell the Domain Name to anyone". According to the Complainant, the purpose of the Complaint is "simply to recover my stolen property".

The Complainant contends that, since the Domain Name has been transferred without his consent, there is no legitimate interest on the part of either the Respondent and the Domain Name was registered and is being used in bad faith.

B.Respondent

The Respondent Sven Echternach submits that he purchased the Domain Name for the amount of USD 235,000 through an escrow service, after the Domain Name had been offered at a public auction and failed to sell. According to the Respondent, the facts suggest that the Complainant authorised the sale and received payment through the escrow service.

According to the Respondent, the Domain Name is not confusingly similar with the trade mark, since the latter is a device mark including the word PRINCE which refers to a standard technology which in itself is not a trade of service mark of the Complainant.

The Respondent submits that he has a legitimate right in the Domain Name since it was purchased by him through a Domain Name broker, Mr Andrew Rosener of Media Options, for an amount of USD 215,000 which allegedly would have been paid to the Complainant via Escrow.com. According to the Respondent, this transaction followed a failed public auction of the Domain Name which had been announced by Moniker Online Services on August 17, 2010.

The Respondent submits that it has a legitimate right and interest to the Domain Name since - on the basis of the information from both the registrar and the licensed escrow agent - he purchased the Domain Name from the Complainant.

On the same basis, the Respondent contends the Domain Name was not registered, nor is being used in bad faith.

6. Discussion and Findings

The Panel does not accept the supplemental filings since they were unsolicited and are not necessary to decide the case.

The contentions of the Parties indicate that this is not a case to be decided under the Policy.

The Policy was designed to combat cyber squatting, the abusive registration and use of a domain name which is identical or confusingly similar with a trade mark to which the Complainant has rights.

This case, however, concerns the question who is the rightful owner of the Domain Name. As the Complainant has put it, the purpose of his Complaint is to recover "his stolen property". The Respondent, on the other hand, takes the position that he purchased the Domain Name in a completely legitimate manner from an agent of its rightful owner. The Policy was not designed nor is it equipped to decide whether the Domain Name was taken without the Complainant's knowledge or consent, involving as it does legal issues outside the Policy and credibility of competing testimony that a Policy panel is incapable of resolving.

This clearly is a case for the courts and the Complaint must therefore be dismissed.

For the same reasons, the Panel wishes to remark that under the Policy it is not suitable for the Complainant to accuse the Respondent of theft, and for the Panel to be expected to assess and enter a finding on such allegation under the Policy. Similarly, it is not suitable for the Respondent to suggest that the Complainant may have managed a scheme in which he uses the Policy to get a Domain Name back after selling it to a third party like the Respondent for substantial consideration.

Such accusation and suggestion are not only difficult in such cases to assess within the ambit of the Policy process but – as is true in nearly every case in which such conduct has occurred – unhelpful to the Panel, as they clutter the record and divert attention from the Policy issues necessary to decide the case.

7. Decision

For all the foregoing reasons, the Complaint is denied.

Wolter Wefers Bettink
Presiding Panelist

M. Scott Donahey
Panelist

Richard G. Lyon
Panelist

Dated: November 26, 2010

 

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