WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Metalife AG v. Metalife Information Systems Inc.
Case No. D2002-0468
1. The Parties
1.1 The Complainant is Metalife AG of Baseler Str 115 D-79115 Friedburg, Germany. The Respondent is Metalife Information Systems Inc. 4131 Highway 52 N Ste B221, Rochester NM5590, United States of America. It is convenient to say at this stage that the Complainant alleges that the Respondent does not exist (see below).
2. The Domain Name and Registrar
2.1 The domain names in issue is (the "Domain Name"). The Registrar is Network Solutions, Inc. The takeover of Network Solutions Inc. by Verisign Inc. has led to material that has been filed referring to Verisign. For convenience the Panel adopts the term �Verisign� to refer to the Registrar.
3. Procedural History
3.1 The Complaint was received by WIPO Arbitration and Mediation Center ("the Center") by e-mail on May 16, 2002, and in hard copy on May 24, 2002. An amendment to the Complaint was filed on 5 June, 2002 (see below.
3.2 On May 22, 2002, the Center transmitted via e-mail to Verisign a request for Registrar verification in connection with the Complaint. On May 24, 2002, Verisign transmitted via e-mail its verification response confirming that Metalife Information Systems Inc. is the registrant of .
3.3 The Complaint was notified to the Respondent on June 7, 2002, in accordance with the rules applicable to the Uniform Policy for Domain Name Dispute Resolution ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"). No Response to the Complaint was received by the Center by the due date (June 27, 2002). Communication was however received from a different entity, Metafile Information Systems Inc., on June 13, June 14, and July 9, 2002 (see below). Notification of Respondent Default was served on June 18, 2002.
3.4 A Panel was constituted on July 18, 2002, with a single panelist, Nick Gardner. A Statement of Acceptance and Declaration of Impartiality and Independence has been filed by the Panelist.
3.5 The date scheduled for the Panel to render its decision is August 1, 2002.
3.6 The Complainant is represented by André Haug of Rechtsanwalte Rowedder Zimmerman Hass of Augustaanlage 59, D-68165, Mannheim, Germany. The Respondent is unrepresented.
4. Factual Background
4.1 This Complaint arises out of what appears to be some form of administrative error in the allocation of the Domain Name. Although the Complaint is very difficult to follow the relevant facts can at least in part be discerned from the Complaint, its annexes, and the other papers making up the case file. They are summarised briefly below.
4.2 The Complainant establishes that it is a German business with the name Metalife AG. It is the proprietor of German Trademark Number 30057207 in respect of the word "Metalife".
4.3 In September 2001 it (or representatives acting on its behalf), arranged to purchase the Domain Name from a third party for a consideration of $4000. No complaint is made about this third party or its previous ownership of the Domain Name.
4.4 It would appear from the papers annexed to the Complaint that details were provided to an intermediate agency to effect the change of registration. However the next thing that appears to have happened is that the registration was transferred into the name of the Respondent, Metalife Information Systems Inc.
4.5 The Complainant alleges that no such company exists. The Complaint states "the Complainant found out that a Metalife Information Systems Inc. does not exist and that they have no interest in the domain. The Complainant is of the opinion that there has happened a mistake at the Registrar. But as Verisign is obviously not willing to see it�s mistake and transfer the domain back to the Complainant he sees this as his only chance in getting back his domain name in this Complaint."
4.6 Papers received by the Centre include, as indicated in paragraph 3.3 above, correspondence from a company with the name Metafile Information Systems Inc. On June 13, 2002, Mr Boe responded to the Centre in the following terms "My name is Jeff Boe of Metafile Information Systems Inc. (Metafile). I�m responding to a communication from Metalife AG and their attorney from Germany. The Complaint references my company as using and enjoys [sic] ownership of � Metafile Information Systems Inc. is NOT the registrar [sic] of . Unfortunately a typographical error has occurred linking Metafile�s partial company name and a four year old address with "Metalife Information Systems Inc." Metafile has no interest in domain name. Metafile did not register therefore has no ownership whatsoever. I would suggest the Metalife AG contact Verisign directly to file a change in the record."
4.7 Further correspondence followed which cumulated in Mr. Boe�s e-mail of July 9, 2002, in the following terms "This case is between Michael Schoenemann CEO of Metalife AG in Germany, he owns , and Verisign. I have been in contact with Mr Schoenemann and he informed me to ignore the situation. I am ignoring the situation."
4.8 It would appear that there has been correspondence between the Complainant and Verisign. The Panel does not appear to have been provided with all of this but annexed to the Complaint is an e-mail of May 2, 2002, sent to Verisign by the Complainant which reads "It is really unbelievable. Six weeks you have not done anything. For what do I need this phone number where nobody answers my question. I spoke with so many people like Mr Pham with NO result. The facts are clear you do not want to do anything!!! As I told you I will sue you because I do not see any other way. Every day I miss my domain will cost you more money."
5. Parties� Contentions
Complainant
5.1 The Complaint�s contends that it has rights by virtue of its name and its German trademark "Metalife". It contends that the Respondent has no rights or legitimate interests in the Domain Name because it does not exist.
5.2 In the Complaint as originally filed no indication was given by the Complainant as to why the Domain Name should be considered as having been registered and being used in bad faith. The Center served notice of deficiency in this regard identifying paragraph 3(b)(ix)(3) of the rules. By e-mail dated June 5, 2002, the Complainant�s representative supplemented the Complaint in the following terms:-
"The Respondent, the Metalife Inc. registered and uses the Domain Name in bad faith. The domain was, as I already mentioned in the Complaint, usually registered with the Complainant. It seems that the Respondent could not accept this and despite the Complainant was earlier in registering therefore is the only legitimate holder of the domain managed somehow to get the domain transferred to himself. Such a transfer is normally impossible without the consent of the holder and as such a consent is not given the transfer must have been achieved with criminal means. That shows the registration was done in bad faith. The bad faith of the Respondent gets even more obvious by the fact that he uses a wrong address which is the address of a "Metafile Inc" which has nothing to do with the case. I would appreciate a hint if you are of the opinion that the deficiency is not cured with this filing."
Respondent
5.3 No submissions are made by the Respondent.
6. Discussion and Findings
6.1 The Panel has reviewed the Complaint and documents annexed to the file and the case file and in light of this material finds as set out below.
6.2 The Complaint is not clearly drafted and the Panel has clearly not been provided with all relevant information as to the history of this domain name.
6.3 The Panel has not been able to reconcile the contents of the June 5, 2002, e-mail from the Complainant�s representative to the remainder of the Complaint. The Complaint appears to indicate that what has happened in some sort of administrative error where the transfer of the domain name which should have occurred to the Complainant, Metalife AG has been wrongly associated with a non-existent company, Metalife Information Systems Inc. which has been allocated the address and details of a real, but unrelated company Metafile Information Systems Inc. It seems feasible that the error results from a typographical transposition given the similarity of the names.
6.4 The Panel does not understand the Complainant�s representative�s e-mail of June 5, 2002. It is inconsistent with the Complainant�s own allegation that Metalife Inc. does not exist at all. There does not appear to be any evidence that the Domain Name was ever registered into the name of Complainant before being wrongly transferred to the name of the Respondent. What appears to have happened is that the transfer which should have occurred when the Complainant purchased the domain name did not take place but instead the Domain Name was wrongly registered in the name of a non-existent company which has now become the Respondent to these proceedings. Metafile Information Systems Inc. find themselves innocently involved in these events.
6.5 In these circumstances it seems to the Panel that this Complaint is fundamentally flawed. This is a matter between the Complainant and Verisign. The Policy is not intended to deal with matters of this nature where an error has occurred in the registration process.
6.6 This is readily apparent from the Policy. It is clear that the Domain Name is identical to the mark in which the Complainant has rights. It is also clear that the Respondent, on the assumption it is non-existent, cannot have any rights or legitimate interest in respect of the Domain Name. To that extent the grounds of the Policy (paragraphs 4(a)(i) and 4(a)(ii)) are satisfied. However it does not seem to the Panel that the Complainant can then satisfy the requirement of paragraph 4(a)(iii) of the Domain Name having been registered and been used in bad faith. The original Complaint was deficient in identifying the grounds relied upon in this regard. The attempt to cure this deficiency affected by the e-mail of June 5, 2002, does not, in the Panel�s view, overcome the difficulty. Indeed it advances a case (that a company called Metalife Inc procured the transfer out of the Complainant�s name by means of a criminal act) which is inconsistent with the primary case of the Complaint, which was to the effect that the Respondent did not exist.
6.7 Whilst the Panel has sympathy for the difficulties that the Complainant has apparently experienced it seems quite clear that its remedy has to be sought with Verisign and not through the mechanism of the Policy.
7. Decision
7.1 In the light of the above findings, the Panel's decision is set out below.
7.2 The Panel concludes that the Domain Name is identical to a trademark which the Complainant has rights (Metalife).
7.3 The Panel concludes that the Respondent (which on the material before the Panel does not appear to exist at all) does not have any rights or legitimate interests in respect of the Domain Name.
7.4 The Complainant has not established that the Domain Name has been registered and is being used in bad faith. The material before the Panel (so far as can be determined) indicates that the Domain Name has wrongly, as a result of an administrative error, been mis-registered to a non-existent entity. That is a matter for the Complainant to take up elsewhere and not through the mechanism of the Policy. Such an administrative error does not constitute registration or use in bad faith within the meaning of the Policy.
7.5 The Panel therefore declines to find that the Domain Name should be transferred or cancelled.
Nick Gardner
Sole Panelist
Dated: July 24, 2002
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