ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution Policy
1. Parties and Contested Domain Name
The Complainant is David
Spence. The Respondent
is Domains in Escrow (Debbie Miller). The
contested domain name is amorebythesea.com and the remedy sought is a transfer.
2. Procedural History
The electronic version of
the Complaint form was filed on-line through eResolution’s Website on 12 April
2001. The hardcopy of the Complaint Form and annexes were received on 17 April
2001. Payment was received on 19
Upon receiving all the
required information, eResolution’s clerk proceeded to:
Confirm the identity of the
Registrar for the contested Domain Name;
Verify the Registrar’s Whois
Database and confirm all the essential contact information for Respondent;
Verify if the contested Domain
Name resolved to an active Web page;
Verify if the Complaint was
This inquiry lead the Clerk
of eResolution to the following conclusions: the Registrar is Tucows , the Whois
database contains all the required contact information, the contested Domain
Name resolves to an active Web page and the Complaint is administratively
An email was sent to the
Registrar by eResolution Clerk’s Office to obtain confirmation and a copy of
the Registration Agreement on 12
April 2001. The requested
information was received on 17 April 2001.
The Clerk then proceeded to
send a copy of the Complaint Form and the required Cover Sheet in accordance
with paragraph 2 (a) of the ICANN’s Rules for
Uniform Domain Name Dispute Resolution Policy.
The Clerk’s Office fulfilled all its
responsibilities under Paragraph
2(a) in forwarding the Complaint to the Respondent, notifying the
Complainant, the concerned Registrar and ICANN on 25 April 2001.
This date is the official commencement date of the administrative
All the faxes
official notification and all the annexes were sent via registered mail with
proof of service, to the respondent. According
to the Canada Post tracking system, all were delivered.
On 15 May 2001,
the Respondent submitted, via eResolution Internet site, his response.
The signed version of the response was received on 15 May, 2001.
On 24 May,
2001, the Clerk’s Office contacted Diane
Cabell, and requested that she acts as panelist in
May 2001, Diane Cabell,
accepted to act as panelist in this case and filed the necessary Declaration of
Independence and Impartiality.
May, 2001, the Clerk’s Office forwarded a user name
and a password to Diane Cabell, allowing her to
access the Complaint Form, the Response Form, and the evidence through
eResolution’s Automated Docket Management System.
On 25 May, 2001, the parties were notified that Diane Cabell had been appointed and that a decision was to be, save exceptional circumstances, handed down on 8 June, 2001.
3. Factual Background
Complainant appears to have registered the
domain name under dispute (amorebythesea.com) on December 1, 1999 for use in
conjunction with a new Bed & Breakfast enterprise that was established at
the same time. Approximately three
months later, he discovered that the domain name registration had been
transferred without his knowledge or permission.
The original registrar reported to Complainant that the transfer was
effected by a request sent from the authorized email address of the domain’s
administrative contact and was therefore processed as a legitimate transfer.
4. Parties' Contentions
The Complainant claims that
when he registered the domain name under dispute (amorebythesea), he used the
contact address email@example.com.
He subsequently allowed the treetopsviews.com registration to lapse.
The person who thereafter acquired the treetopsviews.com domain used it
to forge a transfer of the disputed domain away from Complainant.
He claims that this was done by a business competitor who used it to
issue the fraudulent transfer request.
Respondent denies the
allegations, disclaims any knowledge of how the transfer was effected, and
asserts that its client (for whom it presumably holds the registration in trust)
does not compete with the Respondent and has no intention of “using” the
domain. Respondent implies that the
Complainant is somehow indebted to a bankrupt third party in Canada in some
manner which bears on this dispute, although no reasons why this is information
is relevant to the case are supplied.
5. Discussion and Findings
Complainant has unfortunately failed to provide
sufficient evidence to prove his case. He
alleges that he used the term in a manner that might establish common law
trademark rights (in advertising and on goods for sale), however he supplies no
supporting evidence such as copies of the brochures or photographs of the goods.
Thus, he merely asserts his mark right but does not meet the additional
requirement under Section 4(a) of the Policy of proving it.
The Panel finds in favor of the Respondent and denies the request for a transfer.