Complainant Royal Bank of Canada seeks the transfer of the domain name rbcinsurance.com from Respondent Xross to Complainant. The Panel finds that Complainant has not proved all of the elements of Paragraph 4(a) of ICANN's Uniform Domain Name Dispute Resolution Policy (the Policy). Accordingly, Complainant's request to transfer the domain name is hereby denied.

I. PROCEDURAL HISTORY

The electronic version of the Complaint form was filed on-line through eResolution's Website on February 24th, 2000. The hardcopy of the Complaint Form was received on February 25th, 2000. Confirmation of wire payment was received on February 25th, 2000.

Upon receiving all the required information, eResolution's clerk proceeded to:

The inquiry led the Clerk of eResolution to the following conclusion: the Registrar is Network Solutions Inc., the Whois database contains all the required contact information except for the billing contact, which was obtained by contacting directly the R egistrar. The contested Domain Name resolves to an active Web page and the Complaint is administratively compliant.

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 fulfilled all its responsibilities under Paragraph 2(a) in connection with forwarding the Complaint to the Respondent on February 29th, 2000. That date is the commencement date of the administrative proceeding.

On February 29th, 2000, the Clerk's office notified the Complainant, the Respondent, the concerned Registrar, and ICANN of the date of commencement of the administrative proceeding.

On March 21st, 2000 the Clerk's office received the response form from the Respondent. [Note : However, the Respondent failed to serve the response on the Complainant, as required.] In the same correspondence, the Respondent requested to have a panelist appointed from neither Canada, USA nor Tanzania, in order to ensure a fair and impartial hearing.

On March 25, 2000, the Clerk's office tried to contact a candidate panelist from Israel, but received no response.

To avoid any additional delay, on March 31st, 2000, the Clerk's Office contacted Mrs. Sandra Sellers, and requested for her to act as panelist in this case.

On April 3rd, 2000, Mrs. Sandra Sellers, accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.

On April 3rd, 2000, the Clerk's Office forwarded a user name and a password to Mrs. Sellers, allowing her to access the Complaint Form, the Response Form, and the evidence through eResolution's Automated Docket Management System.

On April 3rd, 2000, the parties, the Registrar and ICANN were notified that Mrs. Sellers had been appointed and that a decision was to be, save exceptional circumstances, handed down on April 17th, 2000.

On April 10, 2000, the Panel sent to the Clerk's Office a Preliminary Decision regarding the objections of the Respondent. The objections of the Respondent were overruled.

On April 12, 2000 the Clerk's Office received the final decision of the Panel.

On April 14, 2000 the Clerk's Office sent a copy of the decision to the parties, the Registrar and ICANN in accordance with the regulation.

On April 14, 2000 the Clerk's Office was informed by the Complainant that it had never received a copy of the response form by the Respondent as required by the rules.

On April 17, 2000 the Respondent admitted that he has never sent or transmitted a copy of the response form to the Complainant. This admission is in contradiction with the statement made by the Respondent in the response form and which indicates:

"Respondent has sent or transmitted a copy of the response to the Complainant."

In order to ensure that both parties are treated fairly, that each party is given a fair opportunity to present its case and that the proceeding is conducted in such a manner considered appropriate according to the regulation, eResolution required that th e decision rendered in the rbcinsurance.com on April 13, 2000 be cancelled for procedural deficiencies and not implemented by the Registrar.

This matter was discussed with the Panelist, Ms Sandra Sellers. The Panel notes that ICANN's Rules for Uniform Domain Name Dispute Resolution Policy do not grant the parties the right to submit rebuttal pleadings. Rule 12 states that the Panel may request further statements or documents. Indeed, several decisions have rejected replies because they had not been requested by the Panel (see, e.g., Easyjet Airline Co. Ltd. v. Steggles, WIPO No. D2000-0024; J.P. Morgan v. Resource Marketing, WIPO No. D2000-0035). However, the Panel believes that Respondent's failure to serve its Response on the Complainant, despite an explicit statement to the contrary, constitutes circumstances that support a decision to accept further pleadings following Complainant 's receipt and review of the Response. Additionally, the Panel believes that acceptance of another round of pleadings will preserve the integrity of ICANN's procedure and protect the rights of each party to be heard. Accordingly, the Panel granted the Com plainant additional time to file a rebuttal, and if filed, also granted the Respondent leave to file a sur-rebuttal.

Complainant filed a rebuttal on May 3, 2000, and Respondent filed a sur-rebuttal on May 11, 2000. The new decision of the Panel shall then be rendered by May 19, 2000.

II. PRELIMINARY DECISION OVERRULING RESPONDENT'S OBJECTIONS CONCERNING ALLEGED CONFLICTS

In its response to the complaint, the Respondent, Xross, objected to the jurisdiction of eResolution, alleging that there was a "conflict of interest since the complainant provides banking services to the arbitrator." Additionally, the Respondent requeste d to have a panelist appointed from neither Canada, USA nor Tanzania, in order to ensure a fair and impartial hearing. For the reasons set forth below, the Panel overrules Respondent's objections.

The complainant is based in Canada. The respondent, Xross, gives a postal address in Canada, and states that its business is registered in the country of Tanzania. The domain name Registrar is Network Solutions, Inc., which is based in the USA.

Respondent objects to the jurisdiction of eResolution due to the fact that eResolution has an account with Royal Bank to which bank transfers can be sent for purposes of paying arbitration fees. Additionally, in correspondence accompanying the response, R espondent requested to have a panelist appointed from neither Canada, USA nor Tanzania, in order to ensure a fair and impartial hearing.

Respondent's objection to the jurisdiction of eResolution is overruled. EResolution is the dispute-resolution service provider approved by ICANN to which the complaint was submitted. However, eResolution is simply an administrative entity and has no role in deciding the domain name dispute, so it is immaterial whether or not eResolution has an account with Royal Bank. Section 7 the Policy requires that the Panelist shall be impartial and independent, and shall disclose any circumstances givi ng rise to justifiable doubt as the the Panelist's impartiality or independence. As set forth in the Declaration of Independence and Impartiality, signed April 3, 2000, this Panel has no connection with either party nor the Registrar, and knows of no circ umstances that would impede its rendering an impartial and independent judgment in this dispute.

As to Respondent's request for a panelist from neither Canada, USA nor Tanzania, eResolution attempted to appoint a panelist from Israel, who did not respond. To avoid additional delay, eResolution then contacted a panelist in the USA. Seeing no specific reason why an American panelist cannot hear this matter, and reaffirming the Panel's independence and impartiality, Respondent's request is denied.

III. DECISION DENYING TRANSFER OF THE DOMAIN NAME

Information concerning RBC Insurance products and services may be found on the web site of Royal Bank of Canada at www.royalbank.com/rbcin surance (see Schedules 5 to 12 attached to the complaint.) Schedule 6, entitled "About us," gives the following brief description:

As the insurance specialists of Royal Bank Financial Group, RBC Insurance provides a complete range of insurance solutions to more than two million customers across Canada.

Throughout its initial Response, Respondent frequently referred to "the current domain name user," Rahim Bismillah Crop Insurance, or RB Crop Insurance. The acronym "rbc" in the domain name stands for Rahim Bismillah Crop Insurance. In its sur-rebuttal, R espondent clarified the relationship between Respondent Xross and Rahim Bismillah Crop Insurance. Xross is a partner of Rahim Bismillah Crop Insurance in development and maintenance of the web site, as well as registering the domain name. Xross has a non- related business presence in Markham, Ontario, Canada. The substantive expertise relating to the purpose of the web site rests solely with Rahim Bismillah Crop Insurance in Tanzania and Zambia. Unless otherwise identified, as used hereinafter, the term "R espondent" will refer collectively to Xross and Rahim Bismillah Crop Insurance.

Rahim Bismillah Crop Insurance registered to do business in the United Republic of Tanzania on January 7, 2000. (See Attachment #2 to Sur-Rebuttal of the Respondent.) In its Response, Respondent indicated that Rahim Bismillah Crop Insurance had plans to r egister to offer services in other countries in Africa and the Asian subcontinent. Since that representation, Rahim Bismillah Crop Insurance has incorporated in the Republic of Zambia, on April 18th, 2000. (See Attachment #1 to Sur-Rebuttal of the Respond ent.) The current domain name user has used the name RBC Insurance to exhibit its offering of agriculture and crop protection prior to and following its registration of RBC Insurance, both on the web and off.

Respondent registered the domain name "rcbinsurance.com" in November 1998. Respondent states that it posted its first version in February 1999 and that the site has been in constant use since that time. However, Complainant alleges that from December 1998 until at least June 1999, the web site bore only a "coming soon" message. Complainant notes that as of November 1999, Respondent's home page had changed so that the "Welcome to Really Big Crops?" message solicited ideas for development. In December 1999, Respondent states it changed its site to show it was going through restructuring and would not be able to offer its services any longer due to financial reasons, but secured funding in January 2000 and relaunched its site with the same focus. The site pr ovides information about agriculture and crop protection and offers links to related information.

Complainant contends that Respondent Xross, the registered owner of the domain name, is not the actual user of the domain name, and that the current domain name user, Rahim Bismillah Crop Insurance, is not a party to this proceeding, and that any use of t he domain name by Rahim Bismillah Crop Insurance cannot accrue to the Respondent Xross. Complainant contends that Respondent has never offered any services and/or products related to insurance, that Respondent has never made any bona fide use of RBC INSUR ANCE, and that Respondent's web site never provided any information about agriculture until after the complaint was filed. Complainant further contends that there is no justification for the Registrant having adopted the domain name rbcinsurance.com, and that Respondent's only intention in registering this domain name can only be to tarnish the trademarks of Royal Bank of Canada. Finally, Complainant submits that Respondent registered the domain name in bad faith either primarily for the prupose of sellin g or transferring the domain name for valuable consideration in excess of its costs, or to prevent Royal Bank of Canada from using the mark or to tarnish the marks.

Respondent contends that it has and still does offer information about agriculture and crop protection on its website, with reference to specific pages as examples. It states that the parties are not involved in the same business, since Complainant sells insurance services and/or products pertaining to home, life, health, business and travel insurance, but Respondent is involved in agriculture and crop protection. It states that the parties do not do business in the same markets, in that Complainant does business in Canada, and Respondent does business in Africa. Finally, Respondent denies any intent to tarnish the Complainant's trademarks, and states repeatedly that it has never approached Complainant to solicit the sale of the domain name.

Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:

The question before this Panel is whether the Complainant has satisfied the requirements of Paragraph 4(a) with respect to these three elements, all of which must be proved by Complainant.

1. This matter must be decided on the documents and statements made in this proceeding, which does not permit discovery to challenge the parties' assertions. As noted in other UDRP decisions, see, e.g., Eauto v. Triple S. Auto Parts d/v/a/King Fu Yea Ente rprises, Inc., WIPO Case No. D2000-00047, the lack of discovery and live testimony in UDRP proceedings makes it difficult to make credibility determinations. A court proceeding may be a more appropriate choice of forum for the complainant where bad faith cannot be clearly shown on the demonstrable facts in the record.