WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

AVENTIS v. S. Priost c/o Lark Computer Ltd

Case No: D2002-0895

 

1. The Parties

Complainant is Aventis, Espace Européen de līEntreprise, 67300 Schiltigheim, France. Complainantís authorized representative in this case is Maître Patrice de Candé, Selarl Marchais De Candé, , 75008 Paris, France.

Respondent is S. Priost c/o Lark Computer Ltd., Mildenhall, Suffolk, IP28 7DE, United Kingdom; HRH Security, Barnet, Hertfordshire, EN4 0LT, United Kingdom. The issue of Respondentís identity is further considered below.

 

2. The Domain Name and Registrar

The disputed domain name at issue is <aventis.eu.com>.

Registrar is CentralNic. Ltd., 163 New Kingís Road, Fulham, London SW6 4SN, United Kingdom.

 

3. Procedural History and the Authority of the Panel to Consider the Case

Procedural Events

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") in e-mail form on September 20, 2002, and in hardcopy form on September 24, 2002. On September 30, 2002, the Center issued an Acknowledgement of Receipt of Complaint.

On September 30, 2002, the Center transmitted by email to CentralNic a request for Registrar Verification in connection with the domain name at issue.

The Center received, on October 3, 2002, such a Registrar Verification. In that Verification the Registrar

- stated that it was in receipt of a copy of the Complaint sent by Complainant;

- confirmed that the domain name at issue is registered with that Registrar;

- stated that Respondent is S. Priost who is the current Registrant of the domain name but also mentioned: "we would like to point out that the domain name has been jointly registered in the name of Mr. Priost and Lark Computers Ltd. This would have been done for administrative purposes but we have written evidence from Lark Computers which states that Mr. Priost is the sole registrant of the domain name, which is attached to this email";

- stated that Administrative Contact, Technical Contact, Billing Contact is "Jason Elsom Lark Computers Ltd, Units 1&2 65 James Carter Road, Mildenhall, Suffolk, UK";

- stated: "CentralNic may at its sole option, cancel the registration or suspend registration of the domain name if following the ICANN Uniform Domain Name Dispute Resolution Policy, the name has been judged to infringe the trademark or other intellectual property of the complainant";

- confirmed that the domain name will remain locked during the proceedings, "would you please notify us of the exact date the proceedings will start";

- stated that the specific language of the registration agreement was English with a reference to where the agreement could be found on the Internet (http://www.centralnic.com/terms.php);

- furthermore stated that Respondent has agreed that "the terms and conditions are exclusively governed English law and by applying to register or renew the domain name you and CentralNic submit to the exclusive jurisdiction of the English courts."

On October 4, 2002, the Center issued a Complaint Deficiency Notification and received an Amendment to Complaint in e-mail and hard copy form on October 7, 2002, and 11, 2002, respectively.

On September 30, 2002 and October 4, 2002, there were some e-mail communications between Respondent and the Center.

On October 11, 2002, the Center completed a Formal Requirements Compliance Checklist in order to verify whether the Complaint, as amended, 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").

The same day the Center issued a Notification of Complaint and Commencement of Administrative Proceeding, which was communicated to Respondent by courier (Complaint with attachments) and by e-mail (Complaint without attachments). It was also sent to Complainant, to the Registrar and to ICANN.

As no Response had been received from Respondent, the Center issued, on November 5, 2002, a Notification of Respondent Default which was communicated to the Parties by e-mail.

Having invited Mr. Henry Olsson to act as Sole Panelist in this matter and having received, on November 14, 2002, Mr. Olssonís Statement of Acceptance and Declaration of Impartiality and Independence, the Center issued a Notification of Administrative Panel and Projected Decision Date under which Mr. Olsson was appointed as Sole Panelist. The Projected Decision Date was November 28, 2002.

The Sole Panelist considers that the Administrative Panel was properly constituted and appointed in accordance with the Policy, the Rules and the Supplemental Rules.

The Authority of the Administrative Panel to Consider the Case

First, as regards the identity of the Registrant of the domain name, the Panel has taken note of a telefax attached to the Registrar Verification from Mr. Jason Elsom at Lark Computers Ltd., to the Registrar. In that telefax Mr. Elsom declares: "I have wrongly been named as one of the co-registrants for the domain name aventis.eu.com. Please remove me as a registrant of the domain name. The domain name should only be registered to Mr. S. Priost." The fax then gave Mr. Priostís address as HRH Security with the mailing address as mentioned above. The Panel furthermore notes, however, that the Registrar Verification mentions Mr. Elsom as Administrative Contact, Technical Contact and Billing Contact.

Before going further into the considerations of the substance of this case, the Panel has to verify if it has competence to deal with the case. The question is whether the Registration Agreement in fact incorporates the Policy so that Respondent has to submit to a mandatory administrative panel proceeding as the one which is now initiated.

In this respect the Registrar has not submitted any clear reply and has in fact not, as the Center requested in its communication to the Registrar of September 26, 2002, confirmed that the Policy is applicable.

The Panel notes that, according to Complainant, CentralNic Ltd., is an ICANN-accredited Registrar and thus would be assumed to comply with the Policy. In order to verify the situation in this respect, the Panel has reviewed, on November 14, 2002, the "Terms and Conditions" to which the Registrar has made reference in the Registrar Verification. Its Clause 14 states: "CentralNic may at its sole option, cancel the registration or suspend registration of the domain name if a. ordered to do so by a court of competent jurisdiction; b. following the ICANN Uniform-Domain-Name-Dispute-Resolution-Policy the name has been judged to infringe the trademark or other intellectual property of the complainant; c. the use of the domain name is illegal; d. if there is a breach of these terms and conditions; including without limitation, clause 1; e. the continued use of a domain name could cause technical problems on the Internet."

There is no further documentary evidence available to the Panel which would concern the applicability of the Policy to the domain name registration at issue.

One might of course assume that the reference under "b." above to a finding under the Policy implies that the Policy is in fact applicable. There is, however, nowhere in the Terms and Conditions as they appeared on the Internet at the Panelís search on November 14, 2002, any explicit reference to the Policy nor to any obligation to submit to a mandatory administrative proceeding; on the contrary, the reference to the exclusive jurisdiction of the English courts seems to point to the contrary. Furthermore, the wording of the clause under b. seems to mean that the Registrar has the option to follow a decision or not, and in any case there is no mention of any possibility to transfer a domain name to a complainant, and, further, reference is made only to "infringement" of a trademark and not to the type of finding that Paragraph 4 of the Policy is concerned with. (See, for instance, also the findings by the Panel in J C Bamford Excavators Limited v. MSD (Darlington) Limited, WIPO Case No D2001-1484, involving the same Registrar).

This lack of legal clarity about the applicability of the Policy and about the resulting obligation for Respondent to submit to a mandatory administrative proceeding is a particularly serious matter in the context of the simplified written administrative procedure under the Policy, which, in the view of the Panel, must have a clear legal basis. The lack of legal clarity also applies the possibility to enforce any decision in relation to the domain name as this seems to be left to the discretion/option of the Registrar.

In view of those considerations the Panel must - regrettably and reluctantly - come to the conclusion that it has not been established that the Policy applies to the domain name at issue and that, consequently, it has not been established that the Panel is competent to consider the case. The Panel therefore has no choice but to dismiss the Complaint.

Under these circumstances, the Panel will not enter into any consideration of the substantive aspects of the case.

 

4. Decision

As it has not been established that the Policy applies to the domain name registration at issue, the Complaint is dismissed.

 


 

Henry Olsson
Sole Panelist

Dated: November 18, 2002