|
1. Parties and Contested Domain Names
1.1 The Complainant is Quarterview, a sole proprietorship owned and operated by Joseph Kim of Mountain View, California, United States
of America.
1.2 The Respondent is Quarterview Co. Ltd. of Seoul, Korea.
1.3 The disputed domain names are quarterview.com and chatpop.com. The Registrar for both domain names is Network Solutions Inc.
of Herndon, Virgina, United States of America.
2. Procedural History
2.1 Based upon information provided by eResolution's Clerk's Office, the procedural history regarding this matter is as follows:
2.1.1 The electronic version of the complaint form was filed on-line through eResolution's Website on April 28, 2000. Between April
28, 2000 and May 26, 2000, numerous communications were exchanged between the Complainant and the Clerk's Office in order to modify
and update the complaint form. The hardcopy of the complaint form was received on May 26, 2000. Payment was received on May 23,
2000.
2.1.2 Upon receiving all the required information, eResolution's Clerk's Office proceeded to: (i) confirm the identity of the Registrar
for the contested Domain Names; (ii) verify the Registrar's Whois database and confirm all the required contact information for the
Respondent; (iii) verify if the contested domain names resolved to active Web pages; and (iv) verify if the Complaint was administratively
compliant.
2.1.3 The inquiry led eResolution's Clerk's Office to the following conclusions: (i) the Registrar is Network Solutions, Inc.; (ii)
the Whois database contained all the required contact information; (iii) the contested domain names resolve to active Web pages;
and (iv) the Complaint is administratively compliant.
2.1.4 On May 18, 2000, eResolution's Clerk's Office sent an email to the Registrar to obtain a copy of the Registration Agreement.
The requested information was received June 2, 2000.
2.1.5 The Clerk's Office then proceeded to send a copy of the complaint form and the required cover sheet to the Respondent, in accordance
with paragraph 2(a) of ICANN's Rules for Uniform Domain Name Dispute Resolution Policy.
2.1.6 The Clerk's Office fulfilled all its responsibilities under paragraph 2(a) of ICANN's Rules for Uniform Domain Name Dispute
Resolution Policy in connection with forwarding the complaint to the Respondent on June 2, 2000. That date is the commencement date
of this administrative proceeding.
2.1.7 On June 2, 2000, the Clerk's Office notified the Complainant, the Respondent, the Registrar, and ICANN of the date of commencement
of this administrative proceeding.
2.1.8 On June 17, 2000, the Respondent submitted its response via eResolution's Website. The signed version of the response was
received on June 20, 2000.
2.1.9 On June 21, 2000, the Clerk's Office contacted Bradley J. Freedman, and requested that he act as Panelist in this proceeding.
2.1.10 On June 23, 2000, Bradley J. Freedman agreed to act as Panelist in this proceeding and filed the necessary Declaration of
Independence and Impartiality.
2.1.11 On June 23, 2000, the Clerk's Office forwarded a user name and a password to Bradley J. Freedman, allowing him to access the
complaint form, the response form, and the evidence through eResolution's Automated Docket Management System.
2.1.12 On June 23, 2000, the parties were notified that Bradley J. Freedman had been appointed as Panelist in this proceeding, and
that a decision was to be, save exceptional circumstances, handed down on July 6, 2000.
2.1.13 On July 3, 2000, the Clerk's Office received a request from the Complainant to submit additional material for consideration
by the Panel. In response to the request, the Panel reviewed the additional materials and advised the Clerk's Office that, for reasons
to be stated in its decision, the Respondent need not reply to them.
3. Factual Background
3.1 For the reasons set forth below, the Panel concludes that this dispute clearly does not fall within the narrow scope of the Uniform
Domain Name Dispute Resolution Policy (the "UDRP"), and is beyond the Panel's limited jurisdiction. Accordingly, the factual background
of this dispute will be summarized only in general terms.
3.2 This proceeding arises out of a dispute between the Complainant and the Respondent and its principals regarding a failed Internet
business venture. There are significant factual disputes regarding the nature of the parties' former relationship and the reasons
for the termination of that relationship. In light of the Panel's determination that the complaint is not properly subject to the
UDRP, it is neither necessary nor appropriate for the Panel to attempt to resolve those factual disputes.
3.3 Joseph Kim is a businessman residing in Mountain View, California. He claims to have developed a plan to start a community web
portal site focussed on chatting in August 1998. Some time in late 1998 or early 1999 he met the principals of the Respondent, who
reside in Korea, and they agreed to work together to develop an Internet chatting business. Apparently, it was agreed that Joseph
Kim was to be Chief Executive Officer of the soon-to-be-incorporated Respondent. The Respondent was incorporated in June 1999.
3.4 According to Network Solutions Inc.'s records, Joseph Kim registered the quarterview.com domain name in October 1998 and the
chatpop.com domain name in April 1999. Both domain names were registered before the Respondent was incorporated. The domain names
were registered in the name of "quarterview", and Joseph Kim was the administrative contact, technical contact and mailing contact
for both domain names. Joseph Kim says that he registered the domain names on his own behalf for use in connection with his planned
Internet chatting business. The Respondent says that Joseph Kim registered the domain names at the request of the Respondent's principals
and for their joint benefit and use in connection with their Internet chatting business.
3.5 Some time in the fall of 1999, Joseph Kim and the principals of the Respondent parted ways. The parties disagree regarding the
reasons for that development.
3.6 By letter dated December 27, 1999, the Respondent requested that Network Solutions Inc. change the administrative, technical
and billing contact information for the quarterview.com and chatpop.com domain names. The Respondent told Network Solutions Inc.
that the domain names were registered in its name, and that Joseph Kim was a former employee who no longer worked for the Respondent.
Network Solutions Inc. complied with the Respondent's request, and changed the registration information for the quarterview.com
and chatpop.com domain names. The result was that registration and control over those domain names was transferred from Joseph Kim
to the Respondent.
3.7 In January 2000, Joseph Kim complained to Network Solutions Inc. about the change in registration information for the quarterview.com
and chatpop.com domain names, and requested that registered ownership and control of the domain names be returned to him. Network
Solutions Inc. either failed or refused to comply with that request.
3.8 The Network Solutions Inc. Domain Name Registration Agreement regarding the quarterview.com and chatpop.com domain names subjects
the registrant to Network Solutions Inc.'s Dispute Policy, which is currently the UDRP.
4. Parties' Contentions
4.1 Joseph Kim claims that he is the rightful registrant of the quarterview.com and chatpop.com domain names, and that Network Solutions
Inc. should not have complied with the Respondent's request to transfer registration and control of those domain names to the Respondent.
Joseph Kim requests that the Panel order the registration of the domain names be transferred to him.
4.2 The Respondent disputes Joseph Kim's claims, and says that it is the rightful registrant of the quarterview.com and chatpop.com
domain names.
5. Discussion and Findings
5.1 This complaint is made pursuant to the UDRP as incorporated by reference into the Network Solutions Inc. Domain Name Registration
Agreement applicable to the quarterview.com and chatpop.com domain names. The Panel's jurisdiction is derived from the UDRP and
is restricted to the limited kind of disputes covered by the UDRP. See Adaptive Molecular Technologies Inc. v. Priscilla Woodward
and others, Case No. D2000-0006, February 28, 2000.
5.2 The UDRP was adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") in October 1999. It is narrow in scope.
It applies only to disputes involving alleged bad faith registration and use of .com, .net, and .org domain names - conduct commonly
known as "cybersquatting" or "cyberpiracy". The UDRP does not apply to other kinds of domain name disputes. This reflects a cautious
approach to a novel form of Internet dispute resolution and the balancing of a wide range of perspectives regarding the regulation
of Internet conduct. See Educational Testing Service v. TOEFL, Case No. D2000-0044, March 16, 2000.
5.3 Further, as a practical matter, the UDRP procedure is not well suited to the resolution of the kinds of complicated factual disputes
that are presented by the parties to this proceeding. See Adaptive Molecular Technologies Inc. v. Priscilla Woodward and others,
supra.
5.4 The limited scope of the UDRP was discussed by the ICANN staff in its Second Staff Report on Implementation Documents for the
Uniform Dispute Resolution Policy, October 24, 1999, www.icann.org/udrp/udrp-second-staff-report-24oct99.htm, at paragraph 4.1(c)
as follows:
The Recommended Policy Is Minimalist in its Resort to Mandatory Resolution. In contrast to the policy currently followed by NSI, the policy adopted by the Board in Santiago, as set forth in the final WIPO
report and recommended by the DNSO and registrar group, calls for administrative resolution for only a small, special class of disputes.
Except in cases involving "abusive registrations" made with bad-faith intent to profit commercially from others' trademarks (e.g.,
cybersquatting and cyberpiracy), the adopted policy leaves the resolution of disputes to the courts (or arbitrators where agreed
by the parties) and calls for registrars not to disturb a registration until those courts decide. The adopted policy establishes
a streamlined, inexpensive administrative dispute-resolution procedure intended only for the relatively narrow class of cases of
"abusive registrations." Thus, the fact that the policy's administrative dispute-resolution procedure does not extend to cases where
a registered domain name is subject to a legitimate dispute (and may ultimately be found to violate the challenger's trademark) is
a feature of the policy, not a flaw. The policy relegates all "legitimate" disputes--such as those where both disputants had longstanding
trademark rights in the name when it was registered as a domain name--to the courts; only cases of abusive registrations are intended
to be subject to the streamlined administrative dispute-resolution procedure.
5.5 The limited scope of the UDRP is reflected in its provisions. UDRP section 4(a) provides that the UDRP applies only where a
complainant asserts that: (i) the registered domain name is identical or confusingly similar to a trademark or service mark in which
the complainant has rights; (ii) the registrant has no rights or legitimate interests in respect of the domain name; and (iii) the
domain name has been registered and is being used in bad faith. The burden is on the Complainant to prove each of those three elements.
The Complainant, by its own admission, has failed to do so.
5.6 The Complainant has expressly not alleged that the quarterview.com and chatpop.com domain names were registered in bad faith,
or that they conflict with the Complainant's trademarks. Rather, the Complainant claims that registered ownership and control of
the domain names was wrongfully transferred to the Respondent.
5.7 The Complainant has not asserted any registered or unregistered trademark rights as the basis of this complaint. In response
to the complaint form requirement to specify the trademark or service mark in question on which the complaint is based, the Complainant
stated: "N/A". Accordingly, the Complainant has not satisfied the requirement of UDRP s. 4(a)(i).
5.8 The Complainant has not asserted that the quarterview.com and chatpop.com domain names are identical or confusingly similar to
the Complainant's trademarks. In response to the complaint form requirement to describe the manner in which the domain names are
identical or confusingly similar to the Complainant's trademark or service mark, the Complainant stated: "N/A". Accordingly, the
Complainant has not satisfied the requirement of UDRP s. 4(a)(ii).
5.9 For these reasons, the complaint must be dismissed.
5.10 As previously indicated, on July 3rd the Complainant requested permission to submit additional materials for consideration by
the Panel. In order to determine whether the late-submitted materials should be accepted, the Panel reviewed the materials. The
additional materials consisted of an email message dated October 17, 1999 between Joseph Kim and a principal of the Respondent regarding
the dissolution of Joseph Kim's relationship with the Respondent. The email message includes, among other things, a limited discussion
regarding the future use of the quarterview.com and chatpop.com domain names. The Panel determined that the email message did not
have any bearing on the trademark conflict issues essential to the application of the UDRP, and would not affect the Panel's determination
that the complaint is not within the scope of the UDRP. Accordingly, the Panel concluded that it was unnecessary to determine whether
the late-submitted materials should be accepted by the Panel, and for that reason the Panel advised that the Respondent need not
reply to the additional materials.
6. Conclusions
6.1 The dispute that is the subject of the complaint is not within the narrow scope of the UDRP. The Complainant has not satisfied
the requirements stipulated in UDRP ss. 4(a)(i) and 4(a)(ii). Accordingly, the Panel dismisses the complaint and denies the Complainant's
request that registration of the quarterview.com and chatpop.com domain names be transferred to the Complainant.
6.2 The Panel's decision regarding this complaint is not a substantive decision on the merits of the dispute, and should not be construed
as either accepting or rejecting the position of either party regarding the substance of the dispute. Rather, this decision is based
upon a determination that the Complainant's claims are not within the narrow scope of the UDRP and are beyond the Panel's jurisdiction.
Unless and until the UDRP is amended to cover a broader range of disputes, complaints of this nature will have to be resolved through
court proceedings, mediation or arbitration.
7. Signature
7.1 Made in Vancouver, British Columbia, Canada, July 6, 2000.
(s) Bradley J. Freedman
Presiding Panelist
|
