WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Auconet GmbH v. Frank Winter
Case No. D2020-2651
1. The Parties
The Complainant is Auconet GmbH, Germany, represented by NORDEMANN DE, Germany.
The Respondent is Frank Winter, Germany, represented by BPM Legal, Germany.
2. The Domain Name and Registrar
The Disputed Domain Name <auconet.com> is registered with Network Solutions, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 12, 2020. On October 12, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 13, 2020, the Registrar transmitted by email to the Center its verification response from which it results that the registrant of the disputed domain name is actually Frank Winter (with email address under the Respondent’s other domain name <auconet-solutions.com>).
The Center verified that 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 26, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 15, 2020. The Respondent was granted a 10 calendar day extension to submit the Response under paragraph 5(e) of the Rules, the due date for Response was therefore extended to November 25, 2020. The Response was filed with the Center November 25, 2020. On December 8, 2020, the Center received an unsolicited supplemental filling from the Complainant. On December 22, 2020, the Center received an unsolicited supplemental filling from the Respondent.
The Center appointed Tobias Malte Müller, Stefan Abel, and Gabriela Kennedy as panelists in this matter on February 17, 2021. 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
(1) The Complainant Auconet GmbH is a limited liability company established under the laws of Germany and having its business address in Berlin. It was incorporated in 2012 under the company name Beta GRC Consulting GmbH and changed its company name into its current name on March 9, 2018 recorded on April 9, 2018.
(2) According to the Registrar verification response the Disputed Domain Name was created on October 12, 1998 by the Respondent and is currently registered by him. It further results from the undisputed evidence that the Disputed Domain Name was subsequently registered – on September 28, 2001 – by a company bearing the same name as the Complainant’s current company name, i.e., Auconet GmbH (hereinafter: “First Auconet GmbH”). This First Auconet GmbH and the Complainant are legally different entities even though they bear the same company name. On January 31, 2018 the Disputed Domain Name was transferred from the First Auconet GmbH to Auconet Solutions GmbH. It is unknown to the Panel, at which point in time, the Disputed Domain Name was transferred from Auconet Solutions GmbH to the Respondent.
(3) It results from the undisputed allegations brought forward by the Complainant that the First Auconet GmbH filed an application for the opening of insolvency proceedings over its assets on November 15, 2017. These insolvency proceedings were opened formally on February 1, 2018, i.e., one day after the Disputed Domain Name had been transferred from the First Auconet GmbH to the Auconet Solutions GmbH.
(4) The Complainant is the registered owner of national German figurative trademark AUCONET no. 39933920, filed on June 14, 1999 by the First Auconet GmbH and registered on December 2, 1999 for goods and services in classes 9, 37, 38, and 42 (hereinafter: “Trademark”). The Trademark was transferred to the Complainant following a request filed on July 18, 2018. It has duly been renewed and is in force.
(5) The Disputed Domain Name resolves to a site that offers Information Technology (“IT”) services.
5. Parties’ Contentions
The Complainant’s allegations are summarized as follows:
Firstly, the Complainant submits that the Disputed Domain Name is identical to the Complainant’s trademark since the Disputed Domain Name is identical to the verbal element AUCONET of that figurative trademark, which is registered in Germany and has a priority date of June 14, 1999.
Secondly, the Complainant alleges that Respondent is lacking a right or legitimate interest in respect of the Disputed Domain Name for the following reasons:
It results from the evidence submitted with the Complaint, that at the time when the Complaint was filed, the Disputed Domain Name was privacy protected. However, based on additional searches the Complainant alleges that it was initially registered on September 28, 2001 by the First Auconet GmbH and is currently registered in the name of Auconet Solutions GmbH. Consequently, the Complainant filed the present Complaint against this company.
Furthermore, the Complainant contends that by a Purchase Agreement dated January 31, 2018 (“Purchase Agreement”) with the Complainant (acting at that time under the company name Beta GRC Consulting GmbH) it purchased all assets from the First Auconet GmbH, including the above trademark, the Disputed Domain Name, and related website.
Despite the conclusion of the purchase agreement on January 31, 2018, the First Auconet GmbH did not transfer the Disputed Domain Name to the Complainant. The parties engaged in further negotiations regarding the transfer of the disputed domain name, but without any outcome.
The managing director of Auconet Solutions GmbH, the Respondent, was also the managing director of the First Auconet GmbH.
The Respondent is currently using the Disputed Domain Name for illegitimate purposes, namely misleading consumers: in particular, it should have been transferred to and owned by the Complainant pursuant to the Purchase Agreement. In addition, the website to which the Disputed Domain Name resolves presents content that belongs to the Complainant, i.e., product names, trademarks, and customer names. In addition, the contact email displayed on the website under the Disputed Domain Name does not lead to the Complainant’s email account but to the Respondent’s.
Thirdly, the Complainant contends that the Disputed Domain Name is being used in bad faith. In particular, it should have been transferred to and owned by the Complainant pursuant to the Purchase Agreement. In addition, the Respondent is primarily using the Disputed Domain Name for the purpose of disrupting the Complainant’s business by creating a likelihood of confusion with the Complainant’s actual business, since it is currently using it to resolve to a website showing misleading content (see above).
On July 11, 2019 the Complainant sent a cease-and-desist letter to the Respondent qualifying the use of the Disputed Domain Name as misleading consumers and explaining that this use constitutes infringement of trademark, copyright, and unfair competition laws.
The Respondent’s factual allegations are summarized as follows:
The managing director of the Respondent invented the AUCONET trademark and logo in August 1998 and immediately afterwards established First Auconet GmbH. The Respondent started a business under the company name of the First Auconet GmbH on September 10, 1998 in Berlin.
The Disputed Domain Name was registered by the Respondent on October 12, 1998, and the registration date provided by the Complainant (i.e., September 28, 2001) is wrong.
On June 14, 1999, the Respondent applied for the Trademark in the name of his company, the First Auconet GmbH.
Furthermore, the Respondent submits undisputed evidence (from which it results that he owned several Auconet companies in 2012 and in 2020, namely
- AUCONET GmbH (the First Auconet GmbH);
- AUCONET Verwaltungs GmbH;
- AUCONET Mobility GmbH & Co. KG;
- AUCONET Technologies GmbH & Co. KG
- AUCONET Systems + Services West GmbH & Co. KG, and
- AUCONET Solutions GmbH.
It results from an affidavit given by the Respondent, that these Auconet companies owned by him have been using the Trademark and the Disputed Domain Name with his explicit consent. The Respondent has continuously used the Disputed Domain Name for nearly all of his private email correspondence from 1998 until today. He further declares in his affidavit that he was not involved in the negotiations with the insolvency administrator after January 26, 2018 and had no idea what assets the Complainant had bought.
Until the insolvency of First Auconet GmbH, the Respondent’s use of the Trademark and Disputed Domain Name had always been legitimate.
The Purchase Agreement to which the Complainant refers involves an asset deal between the insolvency administrator and the Complainant. It is however merely a notarized “offer to purchase” and the copy provided is neither signed nor complete. Furthermore, it is not evident from the documents that a contract was actually concluded on the basis of this notarized offer.
The fact that the Trademark was transferred to the Complainant does not suggest that the Disputed Domain Name should also be assigned to the Complainant. This is supported by the fact that from February until end of June 2018 the Complainant negotiated with the Respondent, aside and independently from the insolvency proceedings, for the transfer of the Disputed Domain Name.
The transfer of the Disputed Domain Name from the First Auconet GmbH of the Disputed Domain Name to the Respondent on January 31, 2018 was independent from the Complainant’s negotiations with the insolvency administrator, in which he was no longer involved at that point in time.
At the time of transferring the Disputed Domain Name to the Respondent (i.e., January 31, 2018), the Complainant had not acquired any rights to or become the registered owner of the Trademark. The Complainant became the proprietor of the Trademark only on July 18, 2018. Furthermore, at that point in time, the Complainant did not have any rights related to Auconet resulting from the company name either since it only changed its company name to “AUCONET GmbH” on April 9, 2018.
Consequently, the registration of the Disputed Domain Name in 1998 and its transfer to the Respondent in 2018 predates all rights the Complainant has in the company name “AUCONET GmbH”, the Trademark and other assets.
The Respondent’s legal allegations resulting from the Response can be summarized as follows:
This is ultimately a complex contractual dispute between the parties resulting from the (partial) takeover of assets, which is not appropriate for resolution under the UDRP Policy. The Policy was rather adopted in order to deal with cases of cybersquatting. According to paragraph 170 of WIPO’s Final Report of the WIPO Internet Domain Name Process of April 30, 1999, the scope of the process is limited to cases of “deliberate, bad faith abusive registration of a domain name in violation of rights in trademarks and service marks”. ICANN’s adoption of WIPO’s recommendations provides panelists with limited latitude, in what is intended to be a summary proceeding.
With regard to the three elements the Respondent states the following:
Firstly, it explicitly accepts that the Disputed Domain Name is confusingly similar to the Trademark. In fact, the Disputed Domain Name fully includes its verbal element, and the trademark is recognizable in the Disputed Domain Name.
Secondly, the Respondent claims to have rights or legitimate interests in the Disputed Domain Name for reasons stated above. In the Respondent’s view, the Disputed Domain Name has been used in connection with a bona fide offering of goods and services and it is well established that a successor in interest inherits its predecessor’s good faith registration. Today, the Disputed Domain Name is still used by the Respondent’s group of companies and in connection with the same services the Respondent offered ever since.
In addition, the Respondent relies on paragraph 4(c)(ii) of the Policy, as the Disputed Domain Name corresponds to the Respondent’s company name, which predates all of the Complainant’s rights resulting from the Trademark.
Thirdly, the Respondent contends that the Disputed Domain Name has not been registered or used in bad faith.
The Complainant failed to argue that the Disputed Domain Name was actually registered in bad faith and it is well established that the use of a domain name in bad faith alone is insufficient to meet the criterion under para 4(a)(iii) of the Policy.
Where a Respondent registers a domain name before the complainant’s trademark rights accrue, panels will not normally find bad faith on the part of the respondent.
The subsequent acquisition of the Trademark by the Complainant cannot invalidate the Respondent’s good faith registration of the disputed domain name.
Under the circumstances, whether the disputed domain name was used in bad faith has become irrelevant.
The Respondent did reply to the Complainant’s letter with an email dated July 24, 2019 asking for documents relating to the acquisition of the First Auconet GmbH but the Respondent’s request remains unanswered.
The Respondent’s use of the Disputed Domain Name does not disrupt the Complainant’s business by misleading Internet users as claimed by the Complainant.
Finally, the Respondent requests the Panel to issue a decision that the Complainant has engaged in Reverse Domain Name Hijacking in that it used the Policy in bad faith in order to attempt to deprive the Respondent of the disputed domain name.
C. Complainant’s supplemental filings
In its unsolicited supplemental filing, the Complainant contends that the Response contains a number of incorrect and misleading statements.
The Complainant states that trademark has never been registered for nor has it ever belonged to the Respondent personally. It was initially owned by the now-insolvent First Auconet GmbH and subsequently sold and transferred to the Complainant by way of the Purchase Agreement. In this context the Complainant provides a number of further documents dating back to 2017-2019 to prove that the Disputed Domain Name and the Trademark have been effectively acquired by the Complainant.
At no point in time was the Respondent personally in the position to grant licenses in respect of the use of the Disputed Domain Name, let alone the Trademark.
The Disputed Domain Name is being used illegally as the Respondent is maintaining a website that reproduces contents belonging to the Complainant to create a false impression that the website is operated by the Complainant.
The Respondent has not been using the Disputed Domain Name for all of his companies under the Auconet Group as claimed.
The now-insolvent First Auconet GmbH had no right to transfer the Disputed Domain Name to the Respondent after the insolvency proceedings were commenced. Only the insolvency administrator has the right to dispose of any assets of that company. The transfer of the Disputed Domain Name was void as any disposal of the assets of the now-insolvent First Auconet GmbH was prohibited under two court orders issued by the Insolvency Court unless the explicit permission of the insolvency administrator had been obtained.
The Disputed Domain Name was registered in bad faith by the Respondent on the date of transfer as the assumption of ownership of a domain name by a new holder is considered a new “registration” for the purposes of the Policy, and the Respondent knew that the Disputed Domain Name was part of the assets sold to the Complainant and was subject to the court orders that prohibited any disposal of such assets. The Respondent has in fact been involved in the negotiation of the Purchase Agreement.
The Respondent’s claim of reverse domain name hijacking is untenable as the Disputed Domain Name was registered and has been used in bad faith.
D. Respondent’s supplemental filings
In its unsolicited supplemental filing, the Respondent points out the following:
The Complainant admits that the Complaint was incomplete and is trying to add a missing piece in the supplemental filing.
Such supplemental filing is inappropriate as it is well established that supplemental filings are only to be accepted under limited circumstances, which may include the existence of new pertinent facts that did not arise until after a party filed its last writ.
The documents provided by the Complainant may be able to prove that it had acquired the AUCONET trademarks, but not the Disputed Domain Name.
If the Complainant had acquired the Disputed Domain Name, it would not be necessary to offer to purchase it from the Respondent.
The Respondent’s use of “Auconet” is not illegal per se given that he is the owner of the Auconet companies.
The information shown on the website (to which the Disputed Domain Name resolves) is not misleading.
The email provided by the Complainant to prove that the Respondent was in fact involved in the negotiation on January 23, 2018 confirms the Respondent’s statement in the Response that it was not involved in the negotiation after January 26, 2018.
Due to its complexity, this dispute is not appropriate for resolution under the Policy.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements in order to obtain an order that the disputed domain name should be transferred or cancelled:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Before the Panel will proceed to analyze the merits of the case, it addresses the following three procedural aspects:
A. Procedural Aspects
a) Identification of the Respondent
Under the Rules, the Respondent “means the holder of a domain-name registration against which a complaint is initiated.” While the Disputed Domain Name was privacy protected, the Complaint was filed against Auconet Solutions GmbH, represented by its Managing Director Frank Winter and the Response was submitted in the name of Auconet Solutions GmbH. However, the registrar verification revealed that Frank Winter and not Auconet Solutions GmbH is the current registrant of the Disputed Domain Name.
The Panel finds it appropriate to apply its discretion to record only the underlying registrant Frank Winter as the named Respondent against which the case should proceed. In fact, it results from section 4.4.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) that in cases involving a privacy or proxy service and irrespective of the disclosure of any underlying registrant, the appointed panel retains discretion to determine the respondent against which the case should proceed. In the present case, there appears to be no dispute amongst the parties that there is a tight relationship between the underlying registrant and Auconet Solutions GmbH. This results on the one hand from the email address that Mr. Winter uses for the registration of the Disputed Domain Name (i.e., under the domain name <auconet-solutions.com>) and on the other hand from the undisputed facts that he is materially the sole shareholder of Auconet Solutions GmbH. Ultimately, however, given the disposition of this case, nothing hinges on a determination here.
b) Admissibility of supplemental filings
Secondly, the Panel notes that both parties filed unsolicited supplemental filings.
Neither the Rules nor the Supplemental Rules make provision for supplemental filings, except at the request of the panel (see Rules, paragraph 12). However, on the one hand, Paragraph 10 of the UDRP Rules vests the panel with the authority to determine the admissibility, relevance, materiality and weight of the evidence, and also to conduct the proceedings with due expedition. On the other hand, Panels have repeatedly affirmed that the party submitting or requesting to submit an unsolicited supplemental filing should clearly show its relevance to the case and why it was unable to provide the information contained therein in its complaint or response (e.g., owing to some “exceptional” circumstance) (see section 4.6 of WIPO Overview 3.0). Where unsolicited supplemental filings are admitted, it is usually because the material corrects some error or addresses an issue raised in a Response which could not reasonably have been anticipated or which was not otherwise appropriate to deal with until a respondent’s position on a particular point was clear (see e.g., Sarten Ambalaj San. Ve Tic. A.S. v Stanley Pace, WIPO Case No. D2015-1790).
Having reviewed the supplemental submissions by the parties in this case, the Panel is of the opinion that they contain the responses to points respectively raised by the other party. However, the Panel is of the opinion, that such supplementary filings by a party merely to respond or reply to issues or points raised by the other party which could have otherwise been raised in the complaint or response is not reason enough to allow supplemental filings (see e.g., Mejeriforeningen Danish Dairy Board v. Cykon Technology, WIPO Case No. D2010-0776). Furthermore, as the Respondent correctly points out, the Complainant did not explain why it was unable to provide the information contained therein in its original pleadings and such a reason does not seem plausible either for the Complainant taking into account that refers to further documents related to the insolvency proceedings and the alleged asset deal dating back to 2017-2019. In light of the above, the Panel does not see any exceptional circumstances in this case that necessitates allowing the supplemental submissions filed by the parties to be admissible.
Pursuant to Paragraph 11 of the UDRP Rules, unless otherwise agreed by the parties, the default language of the proceeding is the language of the registration agreement, in the case at hand, English. Consequently, the Complainant correctly filed its Complaint in the English language. Nevertheless, the Complainant filed many of its enclosures to the Complaint and the unsolicited submission, in particular the enclosures referring to the insolvency proceedings and the alleged asset deal, in the German language only and did not request that the proceedings be conducted in German. The Respondent, despite providing an address in Germany and using German counsel, who provided its own enclosures with English translations, complains about this.
According to Paragraph 11(b) of the Rules, the Panel may order that any documents submitted in languages other than the language of the administrative proceeding be accompanied by a translation in whole or in part into the language of the administrative proceeding.
In this case, it is to be noted that the parties and their representatives seem to be familiar with the German and English languages. Furthermore, given the disposition of the case, nothing hangs on a final determination here and the Panel need not exercise its power under Paragraph 11(b) of the Rules for the reasons explained hereinafter.
B. Dispute outside the scope of the UDRP
The Panel considers the dispute presented to it primarily as part of a broader contractual and commercial dispute that falls outside the scope of the UDRP Policy. In the Panel’s view, it seems to be clear that the Disputed Domain Name had been legitimately created and used by the Respondent and/or his Auconet-companies from 1998 until the opening of the insolvency proceedings in 2018. It is unclear, if this original use and registration changed in connection with or as a result of the insolvency proceedings opened on the assets of the First Auconet GmbH. In fact, the Complainant contends that the transfer of the Disputed Domain Name from the First Auconet GmbH to Auconet Solutions GmbH on January 31, 2018 was void since it was prohibited under court orders issued by the Insolvency Court. Furthermore, it alleges that during the course of the insolvency proceedings, it purchased the Disputed Domain Name and other assets from the First Auconet GmbH. However, the details of this Purchase Agreement and of its valid conclusion are disputed between the parties. In this context, the Respondent remarks that the notarized document with Annexes which the Complainant contends to be the Purchase Agreement is provided in German, it is incomplete and only contains an “offer” for the acquisition of the assets of Auconet GmbH but not a valid Agreement. In addition, the Panel notes that this document submitted by the Complainant is incomplete since the copy ends with Sect. 1.3 in the middle of a sentence and the Exhibit 2 to which it refers is not provided either. This dispute inter alia involves legal questions relating to the validity and content of the Purchase Agreement that the Complainant had entered into with the insolvency administrator of the First Auconet GmbH as well as details of German insolvency proceedings.
In this regard, the Panel notes that in the past several Panels have denied cases not based on the UDRP merits but on the narrow grounds that the relevant dispute between the parties exceeds the relatively limited “cybersquatting” scope of the UDRP, and that such dispute would be more appropriately addressed by a court of competent jurisdiction (see section 4.14.6 of the WIPO Overview 3.0). In the Panel’s view, the UDRP jurisprudence, its governing instruments and legislative background, are all clear that the Policy was designed to prevent extortionate or abusive behavior commonly known as ‘cybersquatting’ and cannot be used to litigate all disputes involving domain names (see Philippe Dagenais designer inc. / Philippe Dagenais v. Groupe Dagenais MDC inc. (formerly Philippe Dagenais Mobilier Décoration Conseils Inc.) / Mobilier Philippe Dagenais, WIPO Case No. D2012-0336).
The Panel is not in a position on the present record to make findings with respect to the validity and content of the Purchase Agreement, which is beyond the Panel’s jurisdiction and would require a far more complete evidentiary record than which has been provided. On the one hand, the Panel recognizes that there seem to be prima facie valid arguments in support of the Complainant’s position under the UDRP-merits: (i) it owns the trademark, which is currently used on the website to which the Disputed Domain Name resolves; (ii) its company name is named on that website which may create the misleading impression that the Complainant is responsible for this website; (iii) the Respondent did not explain why he/it is actually using the Disputed Domain Name for this content; (iv) the Disputed Domain Name transfer from the First Auconet GmbH to Auconet Solutions GmbH took place just one day before the insolvency proceedings over the assets of the First Auconet GmbH had formally been opened. On the other hand, the Panel also notes that important information which is necessary to decide in this case is missing: (i) In particular, taking into account that the Respondent was the owner of the First Auconet GmbH, the Panel cannot exclude from the outset that he might be using the Disputed Domain Name legitimately in connection with that company. The Panel notes that there is no evidence in the record on the current status of these insolvency proceedings, in particular, if these insolvency proceedings have meanwhile been concluded and if the First Auconet GmbH still exists, or on the current status of the shareholders and – finally – if there are any legal or contractual provisions excluding such a use by the Respondent. (ii) Furthermore, there has been no explanation of why there have been negotiations between the parties until end of June 2018 on a possible purchase of the Disputed Domain Name, if the Disputed Domain Name transfer was supposed to be part of the prior Purchase Agreement. However, even if the Panel had all this information in the records, it would have to examine the possible legal effects of German insolvency proceedings and the validity/content of the Purchase Agreement for the transfer of assets within such proceedings in order to come to a conclusion on this case. Yet, this analysis would not fall within the scope of UDRP-proceedings nor is the Panel qualified to make such an assessment
The Panel therefore concludes that while there are aspects of the Respondent’s use of the Disputed Domain Name which might raise certain issues (from a UDRP perspective), the present case does fall outside the scope of the Policy in light of the complex factual matrix that underlies the dispute and which the Panel believes has not been fully disclosed, even if unintentionally. Therefore, it is for a court of competent jurisdiction with greater inquisitorial powers to determine the nature of the relationship between the parties, the status of the insolvency proceedings, the validity and content of the Purchase Agreement, and how these factors might brought to bear inter alia on the ownership or disposition of the Disputed Domain Name (cf. e.g., Private Media Group v. Anton Enterprises Inc., d/b/a Private USA, WIPO Case No. D2002-0692; Run-Time Consulting Inc. v. BetterMarketing Inc. o/a Agito Internet Marketing, WIPO Case No. D2008-1062).
Therefore, the Panel holds that the current dispute is not suitable for resolution under the UDRP and accordingly there is no need to consider the UDRP merits.
C. Reverse domain name hijacking
The Respondent has requested that the Panel state in its decision that the Complainant brought this action in bad faith, constituting Reverse Domain Name Hijacking (“RDNH”) under the Policy.
Paragraph 15(e) of the UDRP Rules provides that, if “after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding”. RDNH is furthermore defined under the UDRP Rules as “using the UDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name.” Panels have also referred to paragraphs 3(b)(xiii) and (xiv) of the UDRP Rules in addressing possible RDNH scenarios.
The Panel rejects the request for the same reasons as it also rejects the Complaint: In order to assess whether or not the complaint was brought in bad faith, it will be necessary to determine the nature of the relationship between the parties, the status of the insolvency proceedings, the validity and content of the Purchase Agreement and how these factors might bear on the ownership or disposition of the disputed domain name. Since this analysis falls outside the scope of the UDRP, also the analysis of whether or not the Complainant brought its Complaint in bad faith and constitutes an abuse of the administrative proceeding falls outside the scope of these proceedings.
For the foregoing reasons, the Complaint is denied.
Tobias Malte Müller
Date: March 3, 2021