WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Inter-Continental Hotels Corporation v. Khaled Ali Soussi
Case No. D2000-0252
1. The Parties
Complainant is Inter-Continental Hotel Corporation ("Inter-Continental"), a Delaware corporation with its principal place of business in Atlanta, Georgia, U.S.A. The complaint names as the Respondent Khaled Ali Soussi, an individual located in Culver City, California, U.S.A. According to the response, Respondentís correct name is Khaled Ahmed Soussi.
2. Domain Name and Registrar
The domain names in issue are "INTER-CONTINENTAL.COM" and "INTERCONTINENTAL.COM" (the "Domain Names"). The registrar of the first domain name is Network Solutions, Inc. ("NSI"). The registrar of the second domain name is CORE Internet Council of Registrars ("CORE").
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received Inter-Continentalís complaint on April 3, 2000. The Center verified that the complaint satisfied the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy. Inter-Continental made the required payment to the Center.
The complaint (paragraph 5) identifies Khaled Ali Soussi as Respondent and as the Registrant for the domain name INTERCONTINENTAL.COM. The complaint (paragraph 6) identifies ISPTECH, a California fictitious corporation, as Registrant for the domain name INTER-CONTINENTAL.COM and Khaled Soussi as the Administrative, Technical, Billing and Zone Contact for ISPTECH (with an address in Buena Park, CA, which is different from the Culver City address for Khaled Soussi listed in the INTERCONTINENTAL.COM domain name registration (paragraph 7)). ISPTECH is not named as a party in this proceeding.
On April 10, 2000, the Center transmitted via email to NSI a request for registrar verification in connection with INTERCONTINENTAL.COM. On April 11, 2000, NSI transmitted via email to the Center NSIís Verification Response, confirming that the registrant is "isptech" and the administrative, technical, billing and zone contacts are "soussi, khaled", at the Buena Park, CA address, as averred in the complaint.
Also, on April 10, 2000, the Center transmitted via email to CORE a request for registrar verification in connection with INTER-CONTINENTAL.COM. On April 13, 2000, CORE transmitted to the Center COREís verification response, confirming that the registrant is "Khaled Soussi", at the Culver City, CA address.
On April 13, 2000, the Center transmitted via post/courier, fax and email to Mr. Khaled Ali Soussi and to ISPTECH its Notification of Complaint and Commencement of the Administrative Proceeding, together with a copy of the Complaint. The Center advised that the response was due by May 2, 2000 and that Inter-Continental had elected that the Administrative Panel consist of three members.
On May 2, 2000, the Center received Respondentís response via email. On May 4, 2000, the Center received a hard copy of the response.
On May 25, 2000, the Center advised the parties that David H. Bernstein, Esq., Professor Mohamed Hossam Loutfi, and David W. Plant, Esq. had been appointed as the panelists in this proceeding, with Mr. Plant as the Presiding Panelist. To accommodate the panelistsí schedules, some difficulties in arranging communications among this international panel, and the complexities of this case, the Panel notified the parties that, pursuant to Rule 15, it would require extra time for the completion of its decision.
4. Factual Background; Partiesí Contentions
A. The Complaint
The complaint (paragraph 16) is based on the service marks "Inter∑Continental" and "Inter-Continental", as registered in the U.S. Patent and Trademark Office ("USPTO") pursuant to two registrations, copies of which appear at Annexes D and E to the complaint, viz.
Inter∑Continental Reg. No. 890,271 April 28, 1970
Inter-Continental Reg. No. 1,635,689 Feb. 19, 1991.
The foregoing service marks are for inter alia (a) hotel services and consulting services to others in the development and planning of hotels, and (b) stenographic and typing services, conference center services, management and staffing of hotels, etc. for others, consultation services in construction, operation and management of hotels, restaurants and conference centers, development and organization of tour travel and packages for hotel guests, entertainment services for hotel guests, and restaurant, bar, cocktail lounge and concierge services. (paragraphs 18 and 19)
At paragraph 13, Inter-Continental avers that it owns and operates the "well-known" Inter-Continental hotel chain and owns the "well-known" service marks identified above.
At paragraph 14, Inter-Continental avers it maintains a "significant presence" on the Internet, with its website located at "www.interconti.com".
At paragraph 15, Inter-Continental avers that "Respondent Soussi" is neither licensed nor otherwise authorized to use any Inter-Continental mark, including the two in issue here.
At paragraph 20, Inter-Continental avers it has used its service marks in connection with its website.
At paragraph 21, Inter-Continental avers its marks have become "an identifier of genuinely-sponsored Inter-Continental Hotel Corporation goods and services."
At paragraphs 22 - 33, Inter-Continental purports to describe Respondentís "and/or" ISPTECHís activities:
At paragraph 22 -- Soussi and/or ISPTECH have registered the two Domain Names, which are "identical or confusingly similar to" the two Inter-Continental marks.
At paragraph 23, -- Soussi and/or ISPTECH have no rights or legitimate interests in the Domain Names.
At paragraph 24 -- Neither Respondent nor ISPTECH is known by either of the Domain Names.
At paragraph 25 -- On July 7, 1997, ISPTECH, on behalf of Respondent, registered the domain name INTERCONTINENTAL.COM. Thereafter, Respondent transferred the registration from NSI to CORE and placed the registration under his own name. Inter-Continental refers to Annexes A and F to the complaint. According to Annex A, the CORE record was created July 30, 1997. According to Annex F, the NSI record was last updated October 20, 1997.
At paragraph 26 -- On March 29, 1996, ISPTECH, on behalf of Respondent, registered the domain name INTER-CONTINENTAL.COM with NSI (Annex B).
At paragraph 27 -- On March 14, 1999, Inter-Continental received a fax from "Ali" (Annex G), claiming to be the owner of the two Domain Names, offering to sell them to Inter-Continental for US$50,000, and stating the offer was valid until March 23, 1999. (The fax is addressed:
"Dear Mr. John Kuhoman
The fax closes with:
At paragraph 28 -- On April 1, 1999, Marylee Jenkins, counsel for Inter-Continentalís parent Bass Hotels & Resorts, "sent a letter to Respondent Soussi" (Annex H). The letter was addressed to Khaled Ali Soussi at ISPTECH, acknowledged receipt of the March 14 letter, and stated (a) "your company, ISPTECH, without authorization from our client," registered the Domain Names, and (b) the registrations and offer to sell violated Inter-Continentalís trademark rights. Ms. Jenkins demanded that uses of the Inter-Continental name and mark cease and the registrations be transferred to Inter-Continental. Ms. Jenkins enclosed Registrant Name Change Agreements for Respondent to execute and return to Ms. Jenkins.
At paragraph 29 -- On April 7, 1999, Mr. Sermid D. Al-Sarraf wrote to Ms. Jenkins (Annex C) in reply to the April 1 letter, stating (a) "my client, Ali Soussi is the owner" of the two Domain Names, and (b) "if your client is interested in purchasing them from Mr. Soussi they may contact him" at the same email address and fax number set out in the March 23 letter. The letter also stated "Mr. Soussi has agreed to extend his offer to April 23, 1999."
At paragraph 30 -- On April 19, 1999, "Respondent Soussi" wrote to Ms Jenkins (Annex I). The letter is on ISPTECH letterhead and is signed by Khaled Soussi. It states in part:
"Please know the letter you received from Ali wasnít from our company and doesnít represent our company business approach.
"We chose the name for a special international non-profit project.... At this time the project is in the planning phase.
* * *
"... The Domain names ... where [sic] available for your client before we registered them to our company. Your client chose not to take them, I assume it made more sense ... to choose a shorter name INTERCONTI.COM.
"I have been a guest in your client hotels from the early 70ís ... . Please let Mr. John Kuhlman know that we are business people and our business is IT & Internet consulting. If there is an opportunity to work out some arrangement we will be more than happy to work with him or his representatives."
At paragraph 31 Ė
"Despite Respondent Soussiís alleged April 19th disaffirmance of the March 14, 1999 offer of sale, which Mr. Soussiís lawyer had confirmed on April 7, 1999, Respondent Soussi reconfirmed in a telephone conversation with Ms. Jenkins on April 21 [sic] his desire to sell the domain names for $50,000. Respondent Soussi also told Ms. Jenkins that he would make sure that no one else got the domain names for a lesser amount."
A copy of Ms. Jenkinsís April 21, 1999 memo of the telephone conversation is assertedly attached as Annex J. The memo states:
"On April 14 [sic], 1999, Mr. Soussi telephoned concerning the cease and desist letter that we sent to ISPTECH. He stated that an overzealous employee sent the letter received by our client asking for $50,000 for the domain names and that the letter should not have been sent. He, however, indicated that the amount in the letter was an accurate amount to request for the domain names and he would make sure that no one else got the domain names for less than that amount."
At paragraph 32 -- Respondent Soussiís bad faith registration of the Domain Names is demonstrated by (1) the April 7 offer from "his counsel", (2) Respondent Soussiís April 19th letter offering to work out "an arrangement," and (3) the April 21st [sic] telephone conference with Ms. Jenkins.
At paragraph 33 -- The April 19th letter and the April 21st [sic] telephone conference also demonstrate bad faith use of the Domain Names because Respondent Soussiís primary purpose in registering the Domain Names was to sell, rent or otherwise transfer them to Inter-Continental for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name.
At paragraph 35, Inter-Continental requests that the panel direct the Registrars to transfer the two Domain Names in issue to Inter-Continental.
At paragraph 41 (second number 41), Inter-Continental certified that the information in the complaint is complete and accurate.
B. The Response
In Section A of the response, "Respondentís" contact details are set out. They are the same as the Culver City, CA details set out in paragraph 7 of the complaint and in the CORE verification response with respect to INTERCONTINENTAL.COM.
In Section B (1), declarations of Respondent Khaled Ahmed Soussi and Ali Soussi, at Annexes 1 and 2, are said to provide the factual basis "in large part" for the response.
In Section B (2), Respondentís declaration is said to show that Respondentís wife, who uses ISPTECH as a fictitious business name, is the owner of INTER-CONTINENTAL.COM, and, with respect to this domain name,
"As such, Respondent is not subject to this dispute procedure."
Citing the Paragraph 4 of the Policy, Respondent contends that "the owner of a domain name is subject to these administrative proceedings.... As Respondent has no ownership rights in INTER-CONTINENTAL.COM, he cannot be subject to these proceedings. For the purpose of responding to this Complaint however, and without conceding that he is subject to this administrative proceeding with respect to INTER-CONTINENTAL.COM, Respondent responds to the substantive points of the Complaint as if he were so subject."
In Section B (3), Respondent urges that the two Domain Names are neither identical nor confusingly similar to a mark in which Inter-Continental has rights. Respondent distinguishes between INTERCONTINENTAL and INTER-CONTINENTAL, stating that Inter-Continental has no rights to the former and only limited rights in the latter. The separate registrations of these terms shows the USPTO "recognizes the obvious fact" that the terms are distinguishable. Further, Inter-Continental has no registration in the USPTO for INTERCONTINENTAL. As allegedly shown in Annex 3 "the mark INTERCONTINENTAL" (without a hyphen) has been registered by other parties, including Intercontinental Software Solutions, Inc., Intercontinental Coffee Service Inc., and Intercontinental Financial Corporation. Accordingly, Inter-Continental has no rights to INTERCONTINENTAL. In addition, the terms are merely descriptive, and INTER-CONTINENTAL is "extremely weak." Inter-Continentalís rights are "clearly strictly delineated to its current registrations and by no means to any of the uses which Respondent envisages, namely the international promotion of the Internet to the developing world." Unless Respondent were to open a chain of hotels, any use "they" make of the domains are clearly descriptive or generic. Respondent has not infringed and is not reasonably likely to infringe and marks owned by Inter-Continental, and there is no risk of confusion. "Respondent is not even using the domain at the moment." Finally, Inter-Continental did not trademark or register the Domain Names, thus indicating "their lack of ownership of the name." Inter-Continental is using the URL www.interconti.com.
In Section B (4), Respondent asserts that it "has and has always had legitimate rights in the domain names." The Domain Names were registered for a specific purpose, viz. educating people in the developing world about the Internet. Respondent has been offered at least $10,000 for the names and has refused to sell them.
In Section B (5), Respondent asserts that the attached declarations show Respondent registered "the name" for a legitimate purpose. "The names" were chosen because they reflected the international, "inter-continental" nature of the service "they wished to offer." Further:
"Their information service was quite literally inter-continental in that it wished to address the information gap between the continents. The names were certainly not registered to resell to Complainant. Indeed, contrary to what is stated in the Complaint they still have not been offered to Complainant for a price or at all for that matter."
Respondent avers that Inter-Continental does not understand the correspondence and is confused about the chain of events, e.g. (1) the telephone conference occurred on April 14, not April 21, 1999, and (2) Ali Soussi, not Respondent, offered the domains to Inter-Continental.
Respondent asserts that the circumstances covered by the Policy at paragraph 4(b) are not present here.
In Section G, Respondent certifies that the information in the response is complete and accurate.
C. The Declarations
The declaration of Khaled Ahmed Soussi, dated May 1, 2000 and apparently signed by him, appears at Annex 1 to the response. It is said to be based on personal knowledge of the facts "to which I declare hereunder."
In paragraph 2, Khaled Ahmed Soussi states his name is not Khaled Ali Soussi. He owns INTERCONTINENTAL.COM, but not INTER-CONTINENTAL.COM. His wife, Njela Elmukhtar, who does business under the fictitious business name ISPTECH, owns the INTER-CONTINENTAL.COM domain name. He registered the name for and on behalf of his wife. He also registered INTERCONTINENTAL.COM on behalf of his wife, but when he transferred the registration from NSI to CORE (to save on the annual fee), he mistakenly named himself as the registrant.
In paragraph 3, Khaled Ahmed Soussi states his current residence is in Buena Park, California. He is currently employed as a manager for in ISP provider (Q-ROUTE). He originally registered INTER-CONTINENTAL.com in March 1996. At the time, he and his wife wished to establish on-line businesses and ventures. His wife provided both the money and "creative impetus" to invest in new on-line ventures.
In paragraph 4, they "essentially wished to start a non-profit service that could provide information about the Internet to individuals and entities in the developing world.... We wished to use a domain name which reflected the global reach of the Internet and also our target audience. The word ĎInter-continentalí and variations thereof was an obvious choice."
In paragraph 5, Soussi registered INTERCONTINENTAL.COM in about July 1997 "to cover both spelling variations of the word INTER-CONTINENTAL."
In paragraph 6, Soussi states that when Soussi registered INTER-CONTINENTAL.COM, "I remember thinking that Complainant had not registered this name for the reason that they obviously did not want it. I also considered the names to be truly generic... my wife had no intention of entering the hotel business.... Neither my wife or I had any intention of reselling the name to Complainant or any one else for that matter nor diverting business from Complainant."
In paragraph 7, Soussi agrees with the declaration of his brother Ali, recounts his call to Marylee Jenkins where he allegedly informed her that Ali had "no right to act as he had," and describes confronting his brother and his anger with his brother. He states he did not offer to sell the names to Ms. Jenkins for $50,000, but, rather, as her memo allegedly confirms Ė
"merely stated that that was what I thought they were worth and would not sell them for less. Ms. Jenkins misunderstood me if she believed that I was actually offering to sell them."
In paragraph 8, Soussi stands by his April 19, 1999 letter and states that Inter-Continental misunderstands it Ė
"All the final paragraph of this letter means is that I was in the Internet business and was in fact was [sic] offering our services as Internet consultants and was not offering to sell the names."
Soussi adds that in the past "we received three [offers for the names], one of which was for $10,000. Of course we did not sell the names."
In paragraph 9, Soussi states that neither his wife nor he has "ever offered to sell any of the other domain names we own." Soussi lists those domain names in Exhibit A to his declaration and states every one has been selected for legitimate reasons 1. Also, "We are not in the habit of selecting names that infringe on otherís trademark rights and which are to be resold at a profit."
In paragraph 10, Soussi states:
"In short, I registered the domain names for legitimate purposes and charitable ones at that. The names lend themselves to the service we hoped, and still hope, to provide. My brother ALI was the one who solicited Complainant and not I. My wife and I have acted in good faith throughout and simply want to retain our own domain names."
The declaration of Ali Soussi, at Annex 2, appears to have been executed by the declarant on April 29, 2000, in Sanaa, Yemen.
In paragraph 1, Ali Soussi states "I am the brother of the Respondent KHALID [sic] AHMED SOUSSI,í and states he has personal knowledge of "all facts to which I declare hereunder."
In paragraph 3, Ali Soussi states that he has never owned the two Domain Names in issue. "To my knowledge these names are owned by my brother KHALID [sic] AHMED SOUSSI or his wife."
In paragraph 4, Ali Soussi states he attempted the sell the names to Inter-Continental in order to get a firm offer, and
" ... thereupon try to persuade KHALED to sell the name to me so that I could make a profit. Although I knew that KHALED has registered the names for some kind of international on-line business I thought that if I might be able to make an offer he could not refuse. I knew he did not really want to part with these names."
In paragraph, 5, Ali Soussi acknowledges writing the March 14, 1999 letter. He used his then current email address and his brother MANSOURís fax number. "KHALID [sic] had no idea what I was doing. It was of course me, not KHALED, who hired the attorney ... to further contact Complainant."
In paragraph 6, Ali Soussi states:
"When KHALED learned of what was going on, he was very disturbed and upset."
In paragraph 7, Ali Soussi states:
"In short, it was I and not my brother KAHLED who solicited Complainant to purchase the domain names as is described in the Complaint."
5. Discussion and Findings
Paragraph 4(a) of the Policy directs that Inter-Continental must prove, with respect to each domain name in issue, each of the following:
(i) The domain name in issue is identical or confusingly similar to Inter-Continentalís service marks, and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which for purposes of Paragraph 4(a)(iii) above shall be evidence of the registration and use of a domain name in bad faith.
Paragraph 4(c) of the Policy sets out three illustrative circumstances which, if proved by respondent, shall demonstrate respondentís rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii) above.
Complainant has named "Khaled Ali Soussi" as the Respondent. Apparently, there is no such person ó rather, this is a combination of the names of the brothers Khaled Ahmed Soussi and Ali Soussi. Nevertheless, Khaled Ahmed Soussi, the registrant of INTERCONTINENTAL.COM, has received notice of and actively participated in this proceeding. Accordingly, Khaled Ahmed Soussi has consented to the jurisdiction of this Panel and is properly treated as the Respondent in this proceeding. See Plaza Operating Partners, Ltd. v. Pop Data Technologies, Inc. and Joseph Pillus, Case No. D2000-0166 (WIPO June 1, 2000) (finding jurisdiction proper where Respondent, although not named in the Complaint, voluntarily subjected himself to the jurisdiction of the panel).
The more difficult question is whether Respondent also is the registrant of INTER-CONTINENTAL.COM. The registrant of this domain name is listed as ISPTECH, which Respondent alleges is a business owned by his wife. Registrant, however, also appears to be affiliated with ISPTECH ó it was he, and not his wife, who responded to Inter-Continentalís counselís April 1, 1999 letter (which was addressed to Khaled Ali Soussi at ISPTECH), he did so on ISPTECH letterhead, and he referred to ISPTECH as "our company." Moreover, Respondent concedes that he personally registered the domain name (albeit for and on behalf of his wife), lists the name in Annex A to the response as one of the "domain names owned by myself and my wife ó ISPTECH" (emphasis added), and is personally listed as the administrative, technical, billing and zone contact for this domain name. In these circumstances, although it is a close question, the Panel finds by the preponderance of the evidence that Respondent appears to have has at least some ownership interest in or affiliation with the fictitious entity ISPTECH, or at the minimum is its authorized agent. Thus the INTER-CONTINENTAL.COM domain name properly is before the Panel. In reaching this determination, the Panel notes that it need not be concerned about whether ISPTECH received actual notice; not only is Respondent personally the sole contact for this domain name, but also, the Center expressly notified ISPTECH of the commencement of this proceeding. 2
b. Identity or Confusing Similarity
Complainant must prove that the Domain Names in issue are either "identicalí to or "confusingly similar" to its service marks. The Panel finds that Complainant has met that burden. The INTERCONTINENTAL.COM and INTER-CONTINENTAL.COM Domain Names are, for purposes of this dispute, identical or nearly identical to the Inter-Continental service marks. Separate registrations in the USPTO of the two marks on which this complaint is based do not in any material sense distinguish those marks from the Domain Names. Nor does the Panel accept Respondentís arguments that the INTER-CONTINENTAL mark is generic or merely descriptive. Although "intercontinental" may be an English language word and may be the subject of third party trademark registrations for other goods and services, Complainantís trademark registrations are themselves prima facie evidence that the mark is distinctive. EAuto, L.L.C. v. Available-Domain-Names.com, Case No. D2000-0120 (WIPO April 13, 2000), ß 6. Thus, Inter-Continental has carried its burden of proof on this factor.
c. Rights or Legitimate Interests
Proper analysis of factor two of the Policy (at paragraph 4(a)(ii)) involves a shifting of the burden of production from the Complainant to the Respondent. The Complainant first has the burden to make a prima facie case that Respondent has no rights or interests in the domain name. If it does so, the burden of production then shifts to the Respondent to offer demonstrative evidence of his rights or legitimate interests, although the burden of proof remains on the Complainant. As explained in Document Technologies, Inc. v. International Electronic Communications Inc., Case No. D2000-0270 (WIPO June 6, 2000):
This "burden shifting" is appropriate given that Paragraph 4(c) of the Policy, which is entitled "How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint," discusses the kind of evidence a Respondent should provide to show that it has rights to or legitimate interests in the domain name. The burden of proof, however, does not shift as the Policy makes clear that "the complainant must prove that each of these three elements are [sic] present." Policy, paragraph 4(a).
Although the task of proving a negative may be a difficult one, in order to make a prima facie case against the Respondent, the Complainant must at least make some assertions regarding Respondentís lack of rights or interests. Complainant may make this showing with reference to the non-exclusive factors detailed in paragraph 4(c) of the Policy, or with other evidence showing that the Respondent has no rights or legitimate interests. Here Complainant asserts in paragraph 23 of the Complaint that "Respondent Soussi and/or ISPTECH have no rights or legitimate interests in the domain names" and in paragraph 24 that "Neither Respondent Soussi nor ISPTECH is known (either as an individual, business, or other organization) by the names INTER-CONTINENTAL.COM or INTERCONTINENTAL.COM". Although minimal, these statements along with the rest of the evidence in the record, are sufficient to make out a prima facie showing of no rights or legitimate interests. See EAuto, Inc. v. Available-Domain-Names.com, ßß 5-6.
Respondent has not met the shifted burden of production. All Respondent offers is affidavit testimony of an intention to offer services; Respondent has not, however, provided documentary or other demonstrable evidence of his or ISPTECHís supposed plans to create a legitimate non-profit website at the URLs in question (nor, curiously, has ISPTECHís alleged owner, Respondentís wife, submitted an affidavit). The Policy plainly requires such demonstrable evidence, paragraph 4(c)(i), and therefore mere assertions of intent are insufficient to meet the burden.
Because Respondent has failed to provide sufficient demonstrable evidence to rebut Complainantís prima facie showing of no rights or legitimate interests, Complainant has met its burden of proof with regard to factor two of the Policy.
d. Bad Faith
Registration and use of the Domain Names in bad faith are matters of the appropriate inferences to draw from circumstantial evidence. In this case, Complainant and Respondent have provided contradictory evidence on the question of bad faith. On the one hand, Respondent offers the sworn testimony of Khaled Soussi and Ali Soussi that Khaled Soussi registered the names for his wifeís business and never authorized Ali Soussi to offer the names for sale. On the other hand, Complainant certifies that Respondent himself noted in a discussion with Complainantís counsel $50,000 was "an accurate amount to request" and that "he would make sure that no one else got the domain names for less." 3
In the face of this contradictory evidence, and in the absence of a live hearing where the Panel can make credibility determinations based on the witnessesí oral testimony, the Panel must determine whether Complainant has proven bad faith by a preponderance of the evidence.
One coherent and plausible version of the events can be construed based on the affirmations of Khaled Soussi and Ali Soussi. It is plausible that Respondent registered the Domain Names for the business reasons stated and with no intention of trespassing on any rights of Inter-Continental 4. It is plausible that the letters of March 14 and April 7, 1999 were unauthorized offers to sell the Domain Names. It is plausible that Respondentís April 14, 1999 telephone conference and his April 19, 1999 letter were not intended as offers to sell the Domain Names and may properly be construed as only an evaluation of the worth of the Domain Names (April 14 conference) and as an offer of Respondentís Internet services (April 19 letter).
It also is possible, though, that Ali and Khaled Soussi (and perhaps also Respondentís wife) conspired to offer to sell the names, and that Ali Soussiís offer was made with Respondentís (or his wifeís) approval. On balance, though, the Panel concludes that Complainant has not proved (by a preponderance of the evidence) that this is what happened. Not only is the Panel reluctant to reject the two sworn statements submitted by Respondent, but also, a conspiracy theory is inconsistent with the evidence that Ali Soussi took steps to keep his offer secret from his brother Khaled, including the use of his personal email account and the fax machine of his other brother, Mansour Soussi.
Nevertheless, the Panel notes that this is a close question. Among other things, there is no explanation in the record for why Ali Soussiís counsel responded on April 7 to Complainantís April 1 letter 5 even though the letter was sent to Respondent at ISPTECH, nor is there an explanation for why Respondent himself did not respond to that letter until April 14, one week after Mr. Al-Sarrafís letter.
In sum, we acknowledge our concern that Khaled and Ali Soussi are trying to avoid a finding of cybersquatting by using Ali Soussi as a shill, but must conclude that there is insufficient evidence in this record to allow the Panel to make that finding. This determination, based as it must be on this truncated record, does not preclude Complainant from seeking to prove such a conspiracy or some other basis for a finding of cyberpiracy in another forum, especially one like a court that permits for discovery, cross examination, and a searing search for truth among disputed facts. See Document Technologies, Inc. v. International Electronic Communications Inc., Case No. D2000-0270 (WIPO June 6, 2000) ("This proceeding is not conducive to such credibility determinations given the lack of discovery and, in the normal course, the lack of live testimony."); Eauto L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., Case No. D2000-0047 (WIPO March 24, 2000).
In light of the foregoing, the Panel decides that Respondent is the owner of the domain name INTERCONTINENTAL.COM and is an alter ego of or an authorized agent for ISPTECH, the owner of the domain name INTER-CONTINENTAL.COM.
The Panel further decides that, Complainant has carried its burden of proof with respect to the first and second factors of the Policy -- namely that the Domain Names are identical or confusingly similar to a trademark in which Complainant has rights, and that Respondent lacks any rights or legitimate interests in the Domain Names -- but that Complainant has not satisfied its burden of proof on the third factor, Respondentís bad faith registration and use of the Domain Names. Accordingly, the relief sought by Complainant with respect to the Domain Names is denied.
David W. Plant
David H. Bernstein Prof. Mohamed Hossam Loutfi
Dated: July 5, 2000
1. Exhibit A is entitled "DOMAIN NAMES OWNED BY MYSELF AND MY WIFE -- ISPTECH." The domain names are: Isptech.com, Isptech.net, Space-net.net, Space-net.com, Soussi.net, Soussi.org, Soussi.com, Intercontinental.com, Inter-continental.com, q-route.net, q-route.com, and q-route.org.
2. Notwithstanding this decision, the Panel notes that the better practice would have been for Complainant to have named the actual registrant in the Complaint. This would avoid any issue as to whether the registrant properly was before the Panel.
3. The Panel relies for this point on the telephone notes taken by Ms. Jenkins and attached to the complaint, although it would have preferred declaration testimony from Ms. Jenkins concerning the precise details of her conversation with Respondent.
4. Both letters are apparently entirely incorrect in attributing ownership of the two Domain Names to Ali Soussi.
5. In this connection, the Panel notes that it would have been useful to have received declaration testimony from Mr. Al-Sarraf as to his role in these events.