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 April 2001.

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

- & nbsp; Confirm the identity of the Registrar for the contested Domain Name;

- & nbsp; Verify the Registrar’s Whois Database and confirm all the essential contact information for Respondent;

- & nbsp; Verify if the contested Domain Name resolved to an active Web page;

- & nbsp; Verify if the Complaint was administratively compliant.

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 compliant.

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 Paragraph2(a) in forwarding the Complaint to the Respondent, notifying theComplainant, the concerned Registrar and ICANN on 25 April 2001. This date is the official commencement date of the administrative proceeding.

All the faxes were successful.

The complaint, 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 this case.

On 25 May 2001, Diane Cabell, accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.

On 25 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 spencer@treetopsviews.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.

6. Conclusion

The Panel finds in favor of the Respondent and denies the request for a transfer.

7. Signature &nbsp ;

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