CPR Institute for Dispute Resolution
Under the ICANN Uniform Domain Name Dispute
Resolution Policy
366 Madison Avenue • New York, NY 10017-3122
• Tel. (212) 949-6490 • Fax (212) 949-8859 • cprneutrals@cpradr.org • www.cpradr.org
COMPLAINANT
Robert Joseph
26 Palace View Road
London E4 9EN, UK
Telephone: +1‑44‑7904‑156697 and +1‑758‑715‑2680
Fax: +1‑44‑207‑681‑3462
E-mail: rodneybay@clara.co.uk
vs.
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File Number:
CPR 0402
Date of Commencement: February 10, 2004
Domain Name(s): rodneybay.com
Registrar: Network Solutions
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RESPONDENT
Robert Kisson
16 Cecil Park, Pinner
London HA5 5HH, UK
Telephone: +1‑44‑208‑429‑4593
Fax: +1‑44‑208‑429‑3745
E-mail: mail@ricardokisson.com
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Before Peter L. Michaelson, Esq., Arbitrator
PROCEDURAL HISTORY
The Complaint was brought pursuant to the Uniform Domain Name Dispute Resolution Policy (“the Policy”), which was
adopted by the
Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 and approved on October
24, 1999 and in accordance
with the ICANN Rules for Uniform Domain Name Dispute Resolution Policy (“the Rules”) as
approved on October 24, 1999 and the CPR
Institute for Dispute Resolution Supplemental Rules for Uniform Domain Name
Dispute Resolution Policy then in effect (“the Supplemental
Rules”).
The Complaint was filed with CPR on February 10, 2004 and, after review for administrative compliance, served on
the Respondent.
The Respondent filed its Response on February 25, 2004. On March 2, 2004, I was appointed as the
sole Arbitrator pursuant to the
Policy and the Rules.
Upon the written submitted record including the Complaint and its attached Exhibits 1‑7 and the Response, I find as follows.
FINDINGS
CONTESTED DOMAIN NAME
The contested domain name <RODNEYBAY.COM> was registered by the Complainant's UK company Netvision Software Ltd.
in 1998, renewed on October 5, 1999 and again renewed through
this company on the October 3, 2003 for 9 years to October
5, 2012 (see a copy in Exhibit 1 to the Complaint of a renewal order
confirmation e‑mail dated October 3, 2003 which the
Complainant received from the Registrar). A copy of the UK Certificate
of Incorporation for Netvision Software appears
in Exhibit 4 to the Complaint.
The record reflects that the Respondent and subsequently the Complainant attempted to modify the registration records,
specifically
the ownership, for this domain name registration. The Respondent also attempted to renew the registration
in his name. Inasmuch
as the Registrar was and still is faced with conflicting requests to modify the registration record
from these two individuals,
each of whom, from the perspective of the Registrar, appears to have apparent legal authority to
bind the registrant, the Registrar,
being unable to determine which individual, Complainant or Respondent, has actual
requisite legal authority to make this request,
has effectively frozen the state of the domain name until such time as
the ownership issue is appropriately resolved.
In initially registering the name and through both parties attempting to renew the registration, both parties agreed to
submit
to this forum to resolve any dispute concerning the domain name, pursuant to the UDRP, and is now so bound.
Paragraph 4(a) of the Policy provides that each of three findings must be
made in order for a Complainant to prevail:
i. | Respondent’s domain name is identical or confusingly similar
to a trademark or service mark in which complainant has rights; and
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ii. | Respondent has no rights or legitimate interests in respect of
the domain name; and
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iii. | Respondent’s domain name has been registered and is being
used in bad faith. |
BACKGROUND
As the reader will quickly appreciate, the present dispute does not concern whether the contested domain name
infringes the rights
of a trademark, be it registered or at common law, bur rather, as between two prior
shareholders/officers of a common corporate
venture who have since terminated their business relationship, which
of those parties now rightfully owns the name.
In particular, the Complainant states that it registered the contested domain name for use in selling various services,
which as
of the filing date of the Complaint have included villa rental, apartment rental, property sales and car
rental, all in the Rodney
Bay area of St Lucia in the Caribbean. He began his business in August 1998 by offering
short‑term holiday rentals of his
Villa Cleopatra property in St. Lucia. This business was conducted under the
Complainant's company "Rodney Bay Associates Ltd."
During June 2000 and through Rodney Bay Associates, the Complainant purchased a second property and embarked on a
project to renovate
the property into a small hotel, later called the Ginger Lily Hotel which opened on January 12, 2002.
According to the Complainant, during November 2000, the Respondent, Robert Kisson, obtained, from the Complainant,
an ownership
share in Rodney Bay Associates Ltd with the result being that the Complainant and Respondent became equal owners.
Apparently, various disputes later arose between the Complainant and the Respondent which resulted in both parties
terminating
their business relationship. The Complainant has instituted legal proceedings against the Respondent
in St. Lucia to determine
ownership of the corporate properties, including the contested domain name and its associated
web site. These proceedings are presently
on‑going.
FACTUAL REPRESENTATIONS and CONTENTIONS
While the facts, as presented in the pleadings and to the extent understood, are conflicting to some extent,
an easy way to appreciate
the situation between the parties is to simply list each of the Complainant's factual
representations and contentions, followed
by the Respondent's corresponding factual representations and
counter‑contentions. To assist the reader, each of the Complainant's
factual representations and allegations will be
preceded by "C:"; while those seemingly corresponding for the Respondent will be
preceded by "R:".
C:
The Complainant states that, during November 2000, the Respondent was added as a director to Rodney Bay Associates Ltd.
R:
The Respondent, in contrast, states the directors are the Respondent and Ms. Cheryl Gustave.
C:
The Complainant alleges that the Respondent proved to be a "sleeping partner" for the entire construction project
and
during the first year of operations, which led to internal disputes. Further, the Complainant alleges that the
Respondent attempted
a "ruthless" take‑over bid of the operating company by manipulating the share holdings;
this being a subject of the on‑going
legal proceedings.
R:
The Respondent denies this.
C:
The Complainant states that he is currently the undisputed owner of the Ginger Lily property. Also, his website,
<rodneybay.com>, covers three separate businesses all operating in the Rodney Bay area of St Lucia:
Villa/Apartment rental, Real Estate, and Hotel
rental. The Respondent has no interest or involvement in the Villa
or Real Estate business. As part of a possible settlement with
the Respondent, the Complainant states that he was
legally advised to put a claim in for his time spent on the hotel project, including
hosting the company’s hotel operations
on the Complainant's website. The Complainant alleges that "In order to weaken my claim
Mr. Kisson employed someone to
hijack my website to make it look like Rodney Bay Associates Ltd own the website, therefore his hijacking
of my website
has been very damaging to all my businesses". In that regard, the Complainant states that he alerted the Registrar
as
soon as he noticed the hijacking being perpetrated, and that the domain name <rodneybay.com> was then frozen pending an
arbitration decision on the rightful owner.
The Complainant avers that in an attempt to discredit the Complainant, the Respondent fraudulently hacked the
Complainant's
e‑mail account and proceeded to complete the Registrar's lost password form which automatically
re‑sends the user‑id
and password out to the Complainant's registered e‑mail address. Armed with
the Complainant's user‑id and password
from the Registrar, the Respondent accessed the Complainant's domain
registration record on November 19, 2003 and proceeded to
change all the Complainant's personal details to those of
the Respondent. See a copy of what the Complainant contends is the
"correct registration" record in Exhibit 2 to the
Complaint and the subsequent modified record shown in Exhibit 3.
The Complainant, on complaining to the Registrar, about the above fraud, was informed that the Registrar's telephone
records showed that the Respondent telephoned the Registrar on several occasions prior to the dispute, requesting the
Complainant's
registration record be changed and claiming that the Complainant had purchased the domain name for the Respondent.
The Complainant also avers that the Respondent also fraudulently obtained the Complainant's web site hosting server’s
(Hostway) user‑id and password, presumably by also completing the lost password from and eavesdropping on the
Complainant's
e‑mail account to capture the Complainant's user‑id and password when they were automatically
re‑sent to the
Complainant's registered e‑mail address. With access to the Complainant's Hostway account,
the Respondent proceeded to download
all the Complainant's web site files onto a desktop PC, which was then used to
tamper with the Complainant's files.
The Complainant has provided, in Exhibit 5 to the Complainant, a Hitslink web site statistics report, showing the
activity
recorded on a PC at the time the above act was taking place. The Complainant notes that there are many
references to a folder
named “Kisson” from where attempts were being made to run the Complainant's web site on a
local PC. Each page of the Complainant's
web site has statistics reporting code for reporting its location and
visitor details to the Hitslink server. Presumably somebody
was acting on behalf of the Respondent to have file
folders with the Respondent's name reference on it. During November 20, 2003,
the Complainant noticed an abnormally
low level of visitor traffic and had no incoming e‑mail that day. This, in turn, made
the Complainant
immediately investigate his web site reports.
Recorded details of the physical PC being used to manipulate and run the Complainant's web site files are shown in a
Hitslink report provided in Exhibit 6 to the Complaint.
R:
The Respondent asserts that it was the Complainant that was removed as a director of Rodney Bay Associates, Ltd. The
Respondent further asserts, that at a meeting at which this occurred, the Complainant defiantly drove off with the
Respondent's
Suzuki Escude "which was assigned to the manageress of the Ginger Lily and the following day, and on
divers subsequent days returned
to the premises of the Ginger Lily Hotel and behaved thereon in a disorderly manner
in the presence of guests of the hotel whereupon
he was asked to leave."
The Respondent states that, following the removal of the Complainant, various adjustments were made to the signatories
of the company's accounts to reflect the change of directorship.
The Respondent alleges that the Complainant represented to him that if the Respondent were to match the investment
of the Complainant that the Complainant would then convey his interest in the Ginger Lily building and land to the
Respondent who
would then own and operate a hotel thereon. The Complainant accordingly presented details of the
full financial extent of his
interest in the building and land to the Respondent, who then matched the Complainant's
investment. The Respondent alleges that
the Complainant failed and/or refused to execute the contemplated conveyance
to the Respondent although the Respondent has been
solely responsible for all loan payments ostensibly for the
Ginger Lily Hotel, as a consequence of which the Respondent has suffered
loss and damage.
The Respondent also alleges, that as part of his agreement with the Complainant and in exchange for his investment,
the Respondent would pay for the development of the <rodneybay.com> website and that the Complainant would relinquish
exclusive use of that site to the Respondent and would also remove all links
to the Complainant's personal and
competing guest‑house, Villa Cleopatra, from that site.
The Respondent states that it paid for the development of the web site, including the fees charged by a website
designer
but that the Complainant upgraded the Villa Cleopatra to a spot of prominence on that site and refused to
notify the Respondent
of the password to access that site so that this situation could be remedied.
The Respondent alleges that through the site, the Complainant also diverted business from the Respondent to the
Villa
Cleopatra by falsely representing to guests and would‑be guests that the Ginger Lily was full and
luring them away from the
Ginger Lily Hotel to the Villa Cleopatra by promising those quests more affordable accommodation.
Further, the Respondent states that the Complainant placed a credit‑card terminal at the premises of the
Ginger
Lily to process the Villa Cleopatra business that was being diverted from the front desk of the Ginger Lily.
The Respondent also alleges that the Complainant withdrew director funds for his own personal use in breach of a
loan
agreement with the Respondent's bankers that stipulated that the loan must be paid off first before director
loans are repaid.
The Respondent contends that this jeopardizes his position with his bankers and left Rodney Bay
Associates, Ltd. desperately starved
for cash at critical junctures. This, in turn, necessitated, as stated by
the Respondent, that he infuse of over ₤400,000
to keep Rodney Bay Associates Ltd. afloat.
Lastly, the Respondent also alleges, that the Complainant, after being ordered by the St. Lucia court not to use
the
<rodneybay.com> website, has opened another website called <rodney‑bay.com> on which
the Complainant continues to advertise the Ginger
Lily and the Villa Cleopatra.
JURISDICTION and CONCLUSION
It is axiomatic that any tribunal ‑‑ of which an ICANN panel is no exception, when faced with deciding a dispute,
begins
its task by assessing the limits of its jurisdiction and then ascertaining whether the issue being disputed and
for which a decision
is sought from the tribunal lies within those limits. Only after concluding that it has jurisdiction
to act should that panel then
proceed to the substance of the dispute and the remedies sought.
ICANN panels are tasked with very narrow and focused jurisdiction, namely to just decide issues of "abusive registration
of domain
names, or cybersquatting". Report of the WIPO Internet Domain Name Process, paragraphs 169, 170. See, e.g.,
Draw‑Tite, Inc. Plattsburgh Spring Inc. Case No. D2000‑0017 (WIPO March 14, 2000);
Weber‑Stephen Products Co. v. Armitage
Hardware Case No. D2000‑0187 (WIPO May 11, 2000). Matters beyond the narrow purview of an ICANN Panel are to be resolved
in courts
of appropriate jurisdiction. See Nintendo of America Inc. v. Alex Jones Case No. D2000‑0998 (WIPO November 17, 2000).
The present dispute has absolutely nothing to do with cybersquatting and is utterly devoid of any allegations, let alone
adequate
proof, of all the elements required to prove actionable cybersquatting under paragraph 4(a) of the Policy. In
the regard, an essential
element of any claim of cybersquatting, as set forth in paragraph 4(a)(1) of the Policy, is that
the contested domain name is either
identical or confusingly similar to a trademark in which a complainant has rights.
No such trademark has been raised here. Similar
failures of proof exist for showings of a lack of rights and legitimate
interests, and bad faith use and registration (paragraphs
4(a)(2) and (3) of the Policy, respectively).
This dispute, as its crux, concerns ascertaining the rightful ownership interests in and disposition of the assets of a
corporate
business, Rodney Bay Associates Ltd., as claimed by two individuals, the Complainant and Respondent, who were
both previously investors
and officers of that business but who have since dissolved their business relationship, and the
legal ability of either to exercise
control and dominion over those assets apart from the other. The contested domain
name is simply one such asset. Such questions
lie well outside the jurisdiction of this Panel and are best relegated to the courts.
Coloring this dispute as one involving cybersquatting and forcing its resolution under the Policy completely disregard
the highly
targeted purpose underlying the Policy, and effectively turn the Policy on "its head" by utterly misusing
it. See ITMetrixx, Inc. v. Kuzma Productions Case No. D2001‑0668 (WIPO August 2, 2001) where the panel, in denying the
complaint, stated: "This matter appears to be a
dispute between business partners over the ownership of the business
and its assets. This is not a case limited to cybersquatting,
which is the problem that the Policy was designed to
address." Also, see Latent Technology Group, Inc. v. Bryan Fritchie Case No. FA95285 (Nat. Arb. Forum September 1, 2000)
where the panel stated: "If, because of the nature of the claims Complainant
believes that it is entitled to own the
domain name it should pursue its claims in a forum (e.g., a court) that is more appropriate
for such claims"; and
Clinomics Biosciences, Inc. v. Simplicity Software, Inc. D2001‑0823 (WIPO August 28, 2001) where the panel in denying
the requested relief stated: "Prior decisions have rejected
complaints where the dispute is primarily contractual and
therefore outside the scope of the Policy."
Rule 15(a) states: "A Panel shall decide a complaint on the basis of the statements and documents submitted and in
accordance with
the Policy, these Rules and any rules and principles of law that it deems applicable". General
principles of jurisprudence mandate
that inherent in the power of any tribunal is its ability to dismiss a complaint
if the tribunal does not have the legal authority,
i.e., is incompetent, to hear it. Such a dismissal occurs before
and hence forecloses any consideration of the merits of the complaint
and any remedies sought there under.
Paragraph 4(i) of the Policy specifies the very limited remedies afforded to an ICANN Panel:
"The remedies available
to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring
the cancellation
of your domain name or the transfer of your domain name registration to the complainant". However, the award of
any
remedy, whether it be grant or denial of a request to transfer or cancel a registration as set forth in paragraph 4(i),
presupposes
that an ICANN Panel is competent to decide the underlying issue placed before it. In the present case,
this Panel clearly is not.
Hence, the Panel has no authority to consider and rule on the remedies sought, and hence declines to do so.
Therefore, the Panel, having concluded that it has no jurisdiction to decide the present dispute, has no alternative
but to dismiss
the Complaint.
Inasmuch as the Panel finds that the Complainant has put forth its Complaint in what appears to be a good‑faith, though
candidly
rather mistaken and misguided, attempt to gain clarification on the ownership of the contested domain name, the
Panel does not find
the Complainant has engaged in reverse domain name hijacking.
REMEDY
Accordingly, under paragraph 15 of the Rules, the Panel now DISMISSES the Complaint.
______________________________
March 16, 2004
Peter L. Michaelson, Esq., Panelist
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