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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Eric Haddad Koenig v. All Ltd, Selena Kovalski

Case No. D2008-0322

 

1. The Parties

The Complainant is Eric Haddad Koenig, Florida, United States of America, represented by Agustin Rios Aguilar, Mexico.

The Respondent is All Ltd, Selena Kovalski, Seychelles represented by Traverse Legal, PLC, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <all.com> is registered with Bizcn.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 3, 2008, naming “C. Selena Kovalsky” as “the Defendant”. On March 7, 2008, the Center transmitted by email to Bizcn.com, Inc. a request for registrar verification in connection with the domain name at issue. On March 10, 2008, Bizcn.com, Inc. transmitted by email to the Center its verification response confirming All Ltd, Selena Kovalski as the registrant and providing the contact details. In response to a request by the Center that the Complaint be amended, the Complainant filed an amendment to the Complaint on March 28, 2008 which, inter alia, named “ALL, LTD. C. Selena Kovalsky” as “the Defendant”. 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 took steps formally to notify the Respondent of the Complaint by courier (with enclosures) and by email (without attachments), and the proceedings commenced April 1, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 21, 2008.

According to tracking results provided by the courier to the Center on April 16, 2008, the Miami address provided by Bizcn.com, Inc. was incorrect and incomplete and the package containing the Complaint was not delivered.

On April 11, 2008, Counsel for the Respondent sought an extension of time until May 14, 2008 within which to file the Response, on the ground that the owner of All Ltd., Selena Kovalski, was in the hospital and that, because of her illness, her email account had been inactive for 60 days, during which time it appeared these proceedings had commenced. Counsel said the Respondent did not have a copy of the Complaint. On April 16, 2008, the Complainant objected in detail to any extension of time and submitted that, if any extension were granted, the Complainant should be permitted to add to its Complaint material that had come into its possession since the Complaint was filed.

The Center granted an extension of time until May 1, 2008, subject to ultimate consideration at the discretion of the Panel on appointment. The Response was filed with the Center on May 1, 2008. That day the Complainant filed an unsolicited submission stating that the contact address details for the Respondent had been changed on April 28 and 29, 2008 from the Miami address shown at the date of the filing of the Compliant to an address in Seychelles. The Complainant asked the Center to deny this modification of domain name owner information.

On May 14, 2008, the Complainant sought leave to file a Reply.

The Center appointed Alan L. Limbury, Reynaldo Urtiaga Escobar and M. Scott Donahey as panelists in this matter on May 26, 2008. 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.

On May 29, 2008, at the request of the Panel, the Center informed the parties that the Panel was prepared to receive a Reply from the Complainant within a week, without at that stage deciding whether or not to have regard to it. The Panel also extended the time for its decision commensurately.

On June 6, 2008, the Complainant filed its Reply. The Exhibits to the Reply were received some days later and were forwarded to the members of the Panel by the Center.

 

4. Factual Background

The disputed domain name <all.com> was first registered on September 27, 1995. On August 17, 2005 it was transferred to the Complainant. At that time the Registrar was GoDaddy.com Inc.

On August 9, 2007, the Complainant obtained registration in Mexico of the stylized trademark ALL.COM and design, No.997180 in class 38, upon application filed on December 14, 2005. On February 12, 2008, the Complainant obtained registration in Mexico of the same mark in class 41 (No.1023624) upon application filed on April 11, 2006.

On July 6, 2006, the Complainant applied to the United States Patent and Trademark Office to register the word mark ALL.COM on the Principal Register in international classes 9, 35 and 41. That application (serial No.78923609) remains pending.

As of January 19, 2008, the domain name was registered with GoDaddy.com Inc. in the name of all.com as registrant, with the Complainant shown as Administrative Contact and all contact addresses shown as “200 South Biscayne Blv, Miami, Florida 33131, United States”.

As of January 22, 2008, the domain name was registered with Bizcn.com with All Ltd Kovalski Selena as registrant t and Kovalski Selena as Administrative, Technical and Billing Contact. All the contact addresses were shown as “123 South Biscayne Blv 112, Miami Florida 33235, US”. As mentioned above, the courier seeking to deliver a copy of the Complaint reported that this was an incorrect and inadequate address.

 

5. Parties’ Contentions

A. Complainant

The Complainant seeks the transfer of the disputed domain name to him and relies upon his Mexico registered trademark No.997180, saying the domain name <all.com> is similar or identical to that mark.

He says that as the former owner, he used the domain name since at least 2005 and that on January 21, 2008, it was stolen from him.

He says the Respondent has no rights or legitimate interests in the disputed domain name, which was registered and is being used (passively) in bad faith.

B. Respondent

The Respondent denies all the elements required to be established by the Complainant in order to obtain relief and says the Complaint fails to mention that the parties had a substantial business relationship dating from 2005, when the Respondent financed the purchase by the Complainant of the domain name <all.com>, which the Complainant was supposed to register in both his and Mrs. Kovalski’s names and to develop into a “search engine” web site.

The Respondent relies upon correspondence in 2005 and on a document entitled “Domain Name Purchase Agreement” made as of January 10, 2008 between the Complainant as “Seller” and the Respondent (represented by its President, Selena Kovalski), as “Buyer” under which the Seller agreed to transfer to the Buyer his entire right, title and interest in and to the domain name <all.com>, together with other rights, for $80,000, of which $40,000 was said to have been paid in 2005. The document provided:

“Immediately upon delivery of Full Payment, Seller will take any actions that may be necessary or desirable to protect and perfect Purchaser’s title to the Property, including but not limited to, authorizing the change of registered ownership of the Domain Name with InterNic or other authorized entity.”

The document is dated January 10, 2008 and appears to be signed by Selena Kovalski for All Ltd as Buyer and by the Complainant as Seller.

The Respondent produces another document dated January 10, 2008 and apparently signed by the Complainant, being an invoice for $40,000 “for the domain name all.COM”, nominating Haddad Web Solutions Ltd as Beneficiary and providing its bank details. The Respondent also produces a document which appears to be a payment order confirmation dated January 11, 2008, showing the transfer of US$40,000 to Haddad Web Solutions Ltd for “Domain Name Purchase Agreement 01102008ALLDOTCOM minus paid in March 2005 40000USD […]”

The Respondent says the Complainant now controls the proceeds from the sale of the domain name and is using these proceedings in an attempt to steal the domain name which he sold only a few months ago.

The Respondent says that the proper forum for the resolution of this dispute is the courts, citing The Thread.com, LLC v. Jeffrey S. Poploff, WIPO Case No. D2000-1470 and other cases.

The Respondent says that it was the Complainant who changed the registrant information to the incorrect Miami address after receiving the purchase price for the domain name as part of his effort to retake control of it, knowing that the Respondent would not receive the hard copy of the Complaint at that address. The Respondent says it was by sheer luck that she had her email account checked despite her illness, to receive notice of this proceeding. Otherwise, in the absence of a Response, the domain name would have been transferred to the Complainant as a result of his fraud. The Respondent says the Complaint was filed in bad faith and is an abuse of the Policy procedure.

C. Complainant’s Reply

Under the Rules, paragraph 12, the Panel may in its sole discretion request further statements or documents from either of the parties. Thus, no party has the right to insist upon the admissibility of additional evidence: SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092. It is appropriate to consider the circumstances of each case before deciding whether to admit additional submissions: Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd., WIPO Case No. D2000-0802.

If the Respondent is to be believed, nothing in the Response would be news to the Complainant. If the Complainant is to be believed, the Response raises arguments and produces material in evidence that the Complainant could not reasonably have anticipated: see Goldline International, Inc. v. Gold Line, WIPO Case No. D2000-1151.

In order to appreciate the contested issues between the parties, the Panel admits the Reply insofar as it addresses those arguments and that material.

In brief, the Complainant denies engaging in the 2005 correspondence, of the genuineness of which he says there is no proof; he denies the facts asserted in that alleged correspondence; he denies any prior business relationship with the Respondent All Ltd and with Mrs. Kovalski; he denies any agreement to register the trademark ALL.COM in joint names; he denies entering into any agreement for the sale of the domain name to the Respondent and says his purported signatures on the document and on the invoice and banking instruction are forgeries; he produces a report of a graphoscopic and documentoscopy expert to that effect; he denies having received any money either in 2005 or in 2008 for the purchase of the domain name and says the wire transfer documents are false; and he denies having instructed GoDaddy.com Inc. to transfer the domain name to the Respondent since he never agreed to do so. The Complainant says the party engaging in falsehoods is the Respondent, not the Complainant and that treating this Complaint as a commercial dispute outside the scope of the Policy would give the Respondent unlawful possession of the domain name.

 

6. Discussion and Findings

The jurisdiction of this Panel is limited to providing a remedy in cases of “abusive registration of domain names”, also known as “cybersquatting”: Weber-Stephen Products Co. v. Armitage Hardware, WIPO Case No. D2000-0187.

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” The proceeding is a summary one, without the benefit of confrontation of the witnesses or of a hearing: Jason Crouch and Virginia McNeill v. Clement Stein, WIPO Case No. D2005-1201.

This case requires the Panel, based on the limited material before it and without hearing evidence on oath or affirmation, tested by cross examination, to determine issues of fraud, theft and forgery, involving the credibility of the Parties. Such issues go beyond the usual relatively simple and straightforward questions that are within the scope of the Panel’s limited jurisdiction under the Policy. In particular, the Panel would have to determine whether or not the signatures purporting to be those of the Complainant on the Domain Name Purchase Agreement of January 10, 2008 and the invoice and banking instruction of the same date are forgeries and whether or not payment for the domain name was ever made by the Respondent or received by the nominated beneficiary.

The panel in Family Watchdog LLC v. Lester Schweiss, WIPO Case No. D2008-0183 (April 23, 2008), considered that such disputes are more appropriately decided by traditional means, as they turn on questions of fact that cannot be resolved on the basis of the Parties’ statements and documents. See also Clinomics Biosciences, Inc. v. Simplicity Software, Inc., WIPO Case No. D2001-0823.

In Music Plus Television Network, Inc. v. Dennis Tzeng, WIPO Case No. D2007-1486, the learned panelist said: “Except in perhaps the most obvious cases of manufactured documentary evidence where there may be implications for a finding under the UDRP, the assessment of a forgery claim is not a suitable matter for UDRP panels”, citing Yandex Technologies Ltd (1), Comptek International Ltd (2), Yandex Inc (3) v. Law Bureau of Moscow City Collegium of Advocates, WIPO Case No. D2001-1486, and the concurring opinions in Edward G. Linskey v. Brian Valentine, WIPO Case No. D2006-0706.

The concurring opinion of panelist Richard G. Lyon in Linskey recognized that cybersquatters or their counsel might attempt to “complicate” Policy proceedings with far-fetched or apparently outright fraudulent contentions or evidence, then claim that these “complications” raise issues that cannot and were not intended to be resolved in Policy proceedings. Panelist Lyon expressed the emphatic opinion, with which his fellow panelists agreed, that “the claim of unsuitability of the Policy to resolve a dispute that rests on forged evidence may certainly be disregarded in the proper circumstances”.

In considering whether or not to proceed with the usual UDRP analysis in this case, despite the allegations of forgery, the Panel notes that neither the Complainant nor the Respondent have sworn their statements to be true and that the issues of legitimacy and bad faith depend upon a finding as to whether or not the purchase agreement and banking instruction have been shown to be forged.

Although the First Expert’s Report (Ex 5 to the Complainant’s Reply) says it is “Duly Sworn” and it is clear, even to the members of the Panel, that the signatures purporting to be of the Complainant on the purchase agreement and invoice and banking instruction are significantly different from those the expert calls the Complainant’s ten “unquestioned” signatures, there is no evidence, sworn or otherwise, to establish that it was indeed the Complainant who appeared before the expert to make those “unquestioned” signatures. The expert does not say that she knew the Complainant beforehand nor that she checked some form of ID eg. a passport, of the person who attended before her. For that reason the Expert’s Report does not satisfy the Panel that the signatures on the purchase agreement and the invoice and banking instruction are forgeries.

The purchase agreement and invoice and banking instruction were amongst those documents examined in the Second Expert’s Report (Exhibit 6 to the Complainant’s Reply), which found them to have been edited, digitalized and manipulated, concluding that their validity was lacking “until the same are corroborated or compared with their supposed originals [...]” It is precisely because the originals are not before the Panel that the Panel is unable to draw any conclusion as to their authenticity.

Under these circumstances, having regard to Edward G. Linskey v. Brian Valentine, WIPO Case No. D2006-0706 (concurring opinions) and Music Plus Television Network, Inc. v. Dennis Tzeng, WIPO Case No. D2007-1486, and recognising that an unscrupulous respondent could manufacture a dispute beyond the reach of the UDRP in order to retain a stolen domain name, the Panel does not consider this to be the exceptional kind of case in which, despite an allegation of forgery, the Panel should nevertheless proceed to an analysis of the UDRP elements. The Panel is unable to come to a conclusion on the forgery issue merely on the materials submitted by the Parties, as required by the Rules, paragraph 15(a) and in the absence of the kind of full hearing, with cross examination of witnesses and consideration of the original documents, that is available in court proceedings.

The Panel notes that the issues raised range far beyond forgery of the purchase agreement and invoice and banking instruction, since the Complainant has disputed virtually every assertion of the Respondent, including the very existence of its principal, its incorporation in the Seychelles and (by means of the Second Expert’s Report) the genuineness of the 2005 correspondence. But these issues are as nothing compared to whether there was or was not a genuine purchase agreement, followed by payment at the Complainant’s direction, in January 2008.

As in Family Watchdog, in rendering this decision the Panel expresses no view on the respective merits of the Parties’ cases as presented in this dispute. For that reason, the Panel denies both the Complaint and the Respondent’s request for a finding of Reverse Domain Name Hijacking.

 

7. Decision

For all the foregoing reasons the Panel states, in accordance with paragraph 15(e) of the Rules, that this dispute is not within the scope of Paragraph 4(a) of the Policy. Accordingly the Complaint is denied.