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ARBITRATION BEFORE THE NATIONAL ARBITRATION FORUM REGARDING AN INTERNET DOMAIN NAME DISPUTE
Sociedad Papiros Ltda, COMPLAINANT, vs. Iván Rico, RESPONDENT. Forum File No.: FA 0003000094365
FINDINGS OF FACT AND CONCLUSIONS
The above entitled matter came on for an Administrative Hearing this date, before the undersigned on the Complaint of Sociedad Pipiros Ltda, a Columbian corporation ("Complainant"), against Iván Rico ("Respondent"). This matter has been brought under the Uniform Domain Name Dispute Resolution policy adopted by the Internet Corporation for assigned names and numbers ("ICANN") and the rules for Uniform Name Dispute Resolution policy adopted by ICANN on October 24, 1999. Complainant’s legal representative is Maria Clara Mondragón, whose address is Carrera 43A #22-09, Bogotá, Columbia, telephone number (571) 244-2838, facsimile no. (571) 268-2528; e-mail address: papiros@axesnet.com. The name of the representative authorized to act for the Complainant in these proceedings is Mauricio Patiño, whose address is Carrera 9 #74-08 Off.403, Bogotá, Cund., Colombia; telephone number (571) 540-0240; facsimile no. (571) 545-9255; e-mail address is mpatino@pgclaw.com.co which is Complainant’s preferred and required method for receiving electronic and hard-copy materials. See Rule 2(b)(iii). The address of Respondent Iván RICO is given as Carrera 10A #69-41, Santafe de Bogota, Columbia, S.A.; telephone number (571) 347-7707; facsimile number (571) 313-3130; e-mail address Ivanrico@web.com. Respondent’s representative is Alvaro RAMIREZB, whose address is given as Carrera 7 No. 45-48 Of. 1501, Santafe de Bogota, Columbia, S.A.; telephone number (573) 335-2634; facsimile number (571) 285-0293. Finding the Complaint to be in administrative compliance in accord with paragraph 4(a) of the Rules for Uniform Domain Name Dispute Resolution, paragraph 4 of the Supplemental Rules for Uniform Domain Name Dispute Resolution policy, and in accordance with Rules paragraph 4(c), the formal date of commencement of the administrative proceedings was established as April 4, 2000. The domain name which is the subject of the instant Complaint is papiros.com. Complainant was incorporated in Bogotá, Columbia, on August 11, 1998. The nature of Complainant’s business is the providing of publications of literature in the Columbian market. The Respondent, an individual who is domiciled in Columbia, and who was developing a web based business different from the Complainant, registered "some domain names for future use." The record fails to reflect the nature of Mr. Rico’s business except as noted above. Complainant, in compliance with its own business plan, developed a Columbian virtual library by means of an internet web site enabling it to solicit domestic and international sales. Its domain site was and is papiros.com.co which on September 15, 1998, was registered at the University of the Andes, at which time the mark papiros.com was owned and registered by an individual referred to as an "Italian person who had purchased it before." Complainant contends that the domain name papiros.com is confusingly similar to both Sociedad Papiros Ltd., the name of its commercial establishment, and its service mark papiros.com.co. The record reflects that in September of 1998, the Complainant endeavored to purchase the domain papiros.com which it considered an important aspect in the international service that it intended to provide. That effort failed by reason of the fact that that domain was unavailable because it had been purchased by another individual who is not a party to this proceeding. The record does not reflect any contention that Complainant had asserted any claim that the publication and use of the domain name "papiros.com" by either the Italian person or its subsequent purchaser was violative of any right of the Complainant. Indeed, the record reflects that "the domain was not available. . . ." and that AXESNET, its provider who powered its website "was instructed to monitor the name permanently (emphasis added) in order to purchase it if it were eventually released and made available." In short, the Complainant asserted no claim until the Respondent had acquired the domain "papiros.com" and offered it for sale. The name became available and though Complainant wished to purchase it, it was on January 25, 2000, acquired by the Respondent. On February 10, 2000, Respondent advertised it for sale for $50,000 (American). The offer to sell was not specifically directed to the Complainant but was as Respondent represents, "parked in GreatDomains . . . because it is free and reduce registration fees." GreatDomains.com is self-described as "The Internet’s marketplace for Domain Names and Websites." The published offer to sell contained the words Listed Price: $50,000 followed by a sentence that read, "To make an offer on this domain name, please enter an amount below (in U.S. Dollars)." The record reflects that the Respondent had purchased it subsequent to having been shown a copy of Complainant’s website, www.papiros.com.co, by AXESNET, Ltd., the company that powers that website. At that showing by AXESNET who was soliciting the Respondent for business, it was represented that www.papiros.com.co was one of its most successful sites. The record reflects that the domain name was registered by the Respondent prior to the Complainant filing an application for registration of the disputed domain name. Though between August, 1998, and May 1999, Complainant expended much effort in developing its contemplated library, the operation was not officially introduced (one presumes for business) until May 24, 1999. The evidence tendered by the parties reflects that Complainant’s business was directed to potential customers who were residents and/or entities of Columbia. The first contact between the parties was initiated by a representative of Complainant who conferred with the Respondent in reference to purchasing the name, followed by a letter dated March 1, 2000, from Complainant’s representative offering a purchase price of "250 U.S. dollars" followed, on March 22, 2000, by a published offer by Respondent’s agent similar to that of the one dated February 10, 2000, offering to sell the name for U.S. $52,000 and soliciting offers to purchase. On January 25, 2000, Respondent caused the domain name in issue to be registered to himself. For Complainant to prevail in this proceeding, it must establish as required by paragraph 4(a) of the Policy each of the following: 1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and 2) that the respondent has no rights or legitimate interests in respect of the domain name; and 3) that its domain name has been registered and is being used in bad faith. On the record, which establishes as a fact that no specific overture on the part of the Respondent to sell the mark in issue to the Complainant, the undersigned concludes that the Complainant has failed to establish that the name in issue is being used by Respondent in bad faith. Paragraph 4(b) of the Policy tells us that evidence of bad faith may be established by: (i) circumstances indicating that a respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided you have engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) the respondent has intentionally attempted to attract, for commercial gain, Internet users to his website or other on-line location, by creating a likelihood of confusion with the complainant’s mark, as to the source, sponsorship, affiliation, or endorsement of his website or of a product or service of his website or location. Rule 15(a) mandates that an arbitrator shall decide a Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that the arbitrator deems applicable. A guiding principal of law is that a Complainant must prove his, hers, or its claims by the greater weight of the evidence, in short by a preponderance — it follows of course that a decision must be based on evidence — devoid of speculation or conjecture. In the instant matter, eliminating any speculation or conjecture, I conclude the following: Complainant has failed to establish material aspects of the Uniform Domain Name Dispute Resolution Policy as required by paragraph 4(a)(ii) and 4(a)(iii) of said Policy. For the reasons herein stated and pursuant to the authority vested in the undersigned who has acted independently and has no known conflict in serving as the arbitrator in this proceeding, it is DIRECTED THAT COMPLAINANT’S PRAYER FOR RELIEF IN THE FORM OF DIRECTING THE TRANSFER OF THE DOMAIN NAME papiros.com FROM MR. IVAN RICO TO SOCIEDAD PAPIROS LTDA BE, AND THE SAME IS HEREBY DENIED.
Dated: May 16, 2000 Judge Robert R. Merhige, Jr., Arbitrator
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