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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Samar Beverage Industries S.A. v. Paul Foody

Case No. D2007-1185

1. The Parties

Complainant is Samar Beverage Industries S.A., Lugano, Ticino, Switzerland, represented by Sjoerd Stouten, Dubai, United Arab Emirates.

Respondent is Paul Foody, Roberts Creek, British Columbia, Canada.

2. The Domain Name and Registrar

The disputed domain name <yesplease.com> is registered with Network Solutions, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 9, 2007. On August 14, 2007, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On August 14, 2007, Network Solutions, LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on August 20, 2007.

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”), 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 on August 22, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 11, 2007. The Response was filed with the Center on September 11, 2007.

The Center appointed Richard G. Lyon as the sole panelist in this matter on September 24, 2007. The Panel finds that it was properly constituted and has jurisdiction over this proceeding. The Panel has submitted his 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

Complainant has provided supporting materials indicating that it holds a trademark for the phrase YESPLEASE registered in Switzerland in International Classes 11, 29, 30, 32, and 43 with a listed registration date of October 30, 2006. Complainant has registered YES PLEASE in twenty other countries, including Canada. All of these registrations have a listed registration date of November 2006. Complainant asserts, without supporting evidence, that it uses these marks in connection with the sale of professional hot beverage machines, as well as, coffee, tea, and chocolate-related products.

Respondent is an individual who resides in the province of British Columbia, Canada. He registered the disputed domain name in November 1998. He has never used the disputed domain name for an active website. Currently the disputed domain name resolves to an “under construction” page.

5. Parties’ Contentions

A. Complainant

Complainant contends as follows:

The disputed domain name is identical to Complainant’s registered mark.

Respondent has never been known by the disputed domain name and has never made any use (bona fide or otherwise) of the disputed domain name. There is no other apparent basis for his ownership of the disputed domain name.

Bad faith in registration and use is made out by the fact that Respondent “has registered the domain name but has not made any legitimate use of it. Accordingly, the Complainant believes that Respondent registered the [disputed] domain name with the intention of preventing a legitimate right holder from exercising its right to use the [disputed] domain name or extracting commercial gain solely on the basis of charging for the transfer of the [disputed] domain name at a premium”.

B. Respondent

Respondent contends as follows:

Complainant had no trademark rights in 1998, when Respondent registered the disputed domain name. In the nine years following 1998 adding a top-level domain such as “.com” makes the disputed domain name distinctive from and not confusingly similar to Complainant’s service mark. Respondent has never used the disputed domain name in any of the trademark classes for which Complainant has a registered mark.

“YES PLEASE” is a common phrase with “universal appeal”. Respondent registered the disputed domain name with the intention of creating a website dedicated to the general public and the development of a safer, user-friendlier Internet. He has registered a number of other domain names for this purpose.

Complainant has not proven that Respondent registered or used the disputed domain name in bad faith, or intended in any way to profit from it, at the expense of Complainant or anyone else. In fact Respondent has turned down a substantial offer from an unrelated third party to purchase the disputed domain name.

6. Discussion and Findings

The merits of this proceeding are easily resolved. There is nothing in the record beyond the allegation of Complainant’s counsel, quoted above, to establish that in 1998 Respondent registered the disputed domain name in bad faith. According to the provided evidence Complainant had no registered mark in 1998, and Complainant has furnished no evidence at all of any use of the phrase “YES PLEASE” at that time (or, in fact, any other time). Without evidence of facts from which the Panel could infer otherwise, there is nothing even to suggest that in 1998 Respondent selected the disputed domain name to take advantage of Complainant’s mark or indeed that Respondent knew or should have known of Complainant or its business.

The Policy and the Rules require proof, not just allegations. Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755. The only proof in the record is that Complainant obtained various trademark registrations in 2006, more than eight years after Respondent registered an everyday phrase as a domain name. While bad faith in use and registration may sometimes be inferred by a long period of nonuse, see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, there still must be some factual basis for inferring bad faith at the time of registration.¹ There is no such factual basis here. The provisions of paragraph 4(a) of the Policy are conjunctive, so the Panel need not consider any other Policy element.

Another aspect of this proceeding is not so easily resolved. The record in this case reveals that, following notification of this proceeding, Respondent bombarded the Center and this matter’s Case Manager in particular with unsolicited telephone calls and email inquiries. The Panel has reviewed the voluminous email correspondence submitted by Respondent, and notes that almost all of their content is utterly irrelevant to the Policy and Rules, the present proceeding, or the merits of this case. In fact, many of these communications derogate or belittle the Center or its personnel. Such emails have continued even after appointment of the Panel. Respondent did not send a copy of many of his emails to Complainant’s representative, as required by paragraph 2(h)(iii) of the Rules and as expressly directed by the Center. The sheer volume of these emails alone suggests intentional harassment.

The Panel inquired of the Case Manager and other personnel at the Center about Respondent’s telephone calls and was informed that they were of a similar nature to the correspondence described above. Respondent’s conduct was such that the Center was forced to screen the Case Manager from such telephone calls regarding this proceeding. Respondent continued his telephone calls after the Center informed Respondent that no further telephone contact would be accepted and directed that all further communications be in writing.

While paragraph 8 of the Rules prohibits a party from communicating unilaterally with the Panel, nothing in the Policy, the Rules, or the Supplemental Rules expressly prohibits a party’s communicating with the applicable provider. Some communication is appropriate and necessary, and the Center, as part of its function offers prompt responses to reasonable inquiries about “the procedural aspects of the Policy and Rules and Supplemental Rules”. See WIPO Guide to the Uniform Domain Name Dispute Resolution Policy (UDRP), paragraph H. As is obvious from its websites, the Center invests a substantial amount in making available information and resources for the benefit of Complainants and Respondents alike.

When a party takes advantage of the Center’s general willingness to be of assistance in procedural matters by initiating a flood of frivolous and unsolicited communication, as occurred in this matter, several underpinnings of the Policy may be threatened. It may be difficult to preserve the appearance of the Center’s neutral role of provider. Furthermore, such correspondence may unduly delay a process intended to be quick and expedient. The Panel may also be forced to deal with imagined claims of bias or other matters not pertinent to the proceeding. See, e.g., AVN Media Network, Inc. v. Hossam Shaltout, WIPO Case No. D2007-1011 (alleged bias); Classmates Online, Inc. v. John Zuccarini, individually and dba RaveClub Berlin, WIPO Case No. D2002-0635 (alleged lack of jurisdiction).

What is particularly troubling about this situation is that the Panel lacks jurisdiction or the power to prevent such unwarranted conduct. While the undersigned could ignore the unauthorized communications in rendering this decision, the Center and its personnel have already had to endure Respondent’s verbal assaults. The Panelist records his strong disapproval of Respondent’s conduct and finds that the Center would be entirely justified in putting in place appropriate procedures in relation to communications with such a party in a Policy proceeding administered by the Center were similar circumstances to arise. In exceptional cases within the limits of the Policy and Rules a Panel should feel entirely free to treat as it deems fit any communications from an ill-mannered abuser of Policy procedure.

7. Decision

The Complaint is denied.

Richard G. Lyon
Sole Panelist

Dated: October 1, 2007

¹ The factual basis in the Telstra-type warehousing cases comes from registration of a distinctive or famous mark, Respondent’s knowledge of which the panel may infer.