WIPO Domain Name Decision D2005-0056 for camper.net

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

CAMPER, S.L. v. Detlev Kasten

Case No.�D2005-0056

1. The Parties

The Complainant is CAMPER, S.L., of Inca Baleares, Spain (the�“Complainant”), represented by Abril Abogados, Spain.

The Respondent is Detlev Kasten, of M�nchen, Germany (the�“Respondent”), represented by ODR Dietmar Hankte, Germany.

2. The Domain Name and Registrar

The disputed domain name (the�“Domain�Name”) is registered with PSI-USA, Inc. (“the�Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on January�17,�2005. On January�18,�2005, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January�18,�2005, PSI-USA, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the�“Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the�“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the�“Supplemental�Rules”).

In accordance with the Rules, paragraphs�2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January�27,�2005. In accordance with the Rules, paragraph�5(a), the due date for Response was February�16,�2005. The Response was filed with the Center on February�16,�2005.

The Center appointed Tony�Willoughby as the Sole Panelist in this matter on February�21,�2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph�7.

4. Factual Background

The Complainant, Camper SL, is a well known Spanish company which manufactures and sells footwear and leather products. It has been trading since about 1975.

The Complainant is the proprietor of a large number of trademark registrations of or including the word CAMPER, the earliest of which seem to date back to the early 1970s.

The Complainant is also the proprietor of a large number of domain names featuring the word CAMPER including , , , , , and .

The Respondent is an individual, based in Germany, engaged in the provision of Internet services of one kind or another. The Respondent registered the Domain Name on October�16,�1997. The Domain Name does not appear to be connected to an active website, although the Respondent claims to be using the Domain Name for email addresses.

On March�15,�2004, the Complainant filed a complaint against the Respondent in respect of the Domain Name in WIPO Case No.�D2004-0192. The events leading up to the filing of that complaint are set out in the factual background in that decision and read as follows:

“Complainant contacted [Respondent] on November 14 and 19 2003 through its authorised representative in order to acquire the said domain name.

No response having been received, on November�25,�2003, Complainant informed Respondent of its prior rights over the name “Camper” and of its intent to try and settle the dispute amicably.

On December�1,�2003, Respondent’s Counsel answered that he didn’t believe that the domain name at issue could interfere with the Complainant’s rights for the Respondent’s intent was not to sell shoes or leather items through his domain name but only to promote camping activities, adding that Complainant’s rights were only “picture trademarks” which excluded confusion.

Complainant answered, on December�2,�2003, that Respondent’s attitude was stalling for time and repeated its intention to acquire the domain name at issue.

On January�29,�2004, Respondent refused the proposal but indicated that he could supply only information or services through this name but not products.

Later, Respondent asked Complainant to give him an answer in two other emails dated February 16 and March�8,�2004, vainly.

The attempts of settlement came to an end, as on March�15,�2004, Complainant filed the Complaint.”

On May�25,�2004, the Panelist in WIPO Case No.�D2004-0192 decided the Case in favour of the Respondent. The Panelist found that the Domain Name was identical or confusingly similar to trademarks in respect of which the Complainant had rights and the Panelist found that the Respondent had no rights or legitimate interests in respect of the Domain Name. However, the Panelist found that the Complainant had failed to prove that the Respondent had registered the Domain Name and was using it in bad faith within the meaning of paragraph�4(a)(iii) of the Policy.

On July�22,�2004, the Complainant’s representative sent an email to the Respondent in the following terms:

“Dear Mr Kasten

We are contacting you in the name of our client Camper SL and in connection with the domain name “”.

In this sense, please be informed that our client is still interested in acquiring the above mentioned domain name. In any case, please let us have your comments about this proposal as soon as possible.

Yours sincerely”

On July�27,�2004, the Respondent’s representative responded in the following terms:

“Mr Kasten has forwarded to us your information of July�22,�2004.

You will already know of the WIPO procedure that our client never sold or was or is interested in transferring one of its domain names.

Nevertheless and without any obligation to do so, our client might consider your client’s interest. Insofar, please keep in mind the efforts and costs our client had in order to establish its domain name, the efforts and costs which will arise to find and make public a new domain name and, finally, the costs of our legal representation, which might be comparable to yours representing this case since last Autumn and including the WIPO procedure.

Consequently, please, give us a financial indication and an amount your client would be ready to pay to our client for the intended transfer of the domain name.

Please address your further correspondence to us exclusively.

Yours sincerely”

On July�29,�2004, the Complainant’s representatives responded:

“Dear Colleagues

Thank you very much for your email in connection with the above indicated matter.

In this sense, please be informed that the amount that our client would be ready to pay to your client for the intended transfer of the domain name is €3000.

Please, revert to us your client’s comments on such proposal as soon as possible.

Thank you in advance for your kind attention.

Sincerely yours”

On September 27, 2004, the Respondent’s representative, responding to an email of September 21, 2004, which is not in the papers before the Panel, stated:

“Dear Colleagues

The price you have mentioned in your email of September�21,�2004 [as indicated, there appears to be a gap in the evidence before the Panel - however neither party seems to regard the missing email(s) as being of any relevance] the transfer of our client’s domain name is far away from any discussion. It is especially far away compared with all what you have said in your WIPO request of March�15,�2004.

We have mentioned several times that our client has no special interest in selling its domain name but in case it will be sold you should consider that the actual market value of the domain will be around €20,000 or €25,000. You can check this yourself if you refer to “”. Another €10,000 concerned the costs of our client to build up this domain name, to maintain it, and may be, to build up a new domain. Another €10,000 cover the cost of our legal representation among others in the WIPO procedure. This means that the minimum price our client would consider would amount to €45,000.

We kindly ask your answer as soon as possible whether you are prepared to accept this offer or whether we will better finalise our correspondence in this matter.

Yours sincerely”

There then followed two ‘chasers’ dated November�11,�2004, and November�18,�2004, to which the Respondent’s representative receives no reply.

On November�24,�2004, the Respondent’s representative sends a further email to the Complainant’s representative indicating that the Respondent is keen to retain the Domain Name, but is prepared to reduce the price to the Complainant to €40,000. On November�29,�2004, the Complainant’s representative responds saying that the new offer of €40,000 is still abusive and seeks an explanation as to why the Respondent puts such a high price on the Domain Name. On December�1,�2004, the Respondent’s representative responds by saying that the answer is to be found in his email of September�27,�2004.

5. Parties’ Contentions

A. Complainant

Re-Filed Complaint

The Complainant acknowledges that this is a re-filed Complaint and that there are now accepted rules as to how re-filed Complaints should be dealt with. The Complainant refers to the decisions in Grove Broadcasting Co Limited v. Telesystem Communications Limited (WIPO Case No.�D2000-0703) and Creo Products Inc v. Website In Development (WIPO Case No.�D2000-1490).

The Complainant contends that this Complaint falls into the second category of complaint identified by the Panelist in WIPO Case No.�D2000-1490, namely a complaint which concerns acts which have occurred subsequent to the decision in the original complaint. The Complainant accepts that in such a complaint “the subsequent acts must related to new acts which should not be, in substance, the acts of which the previous complaint was based”.

The Complainant relies upon seven sets of new ‘acts’, which have occurred subsequent to the decision in the original complaint, namely:

1. Respondent’s offer to sell the Domain Name for €45,000;

2. the fact that the Respondent appears to have suffered reversals in four challenges made to “.info” registrations of his during the Sunrise period;

3. continued non-use of the Domain Name;

4. the Respondent’s general pattern of conduct evidencing bad faith;

5. the application by the Respondent on April�13,�2004, to register the mark CAMPER in the German Trademark Registry in Classes 38 and 42 for services unrelated to campers or camping activity;

6. a change of message on the website. The Complainant contends that when the earlier complaint was filed the message on the Respondent’s website was “the asked for page web is not available at this moment” whereas at present it is said to read (in translation) “the domain ‘www.’ is at present without public web presentation. Possibly under these domain only different Internet services e.g. email or forums are operated”. The Complainant appears to be saying that this is indicative of a device to make it appear that some use is being made of the Domain Name when in fact it is not.

7. Investigations conducted by the Complainant show that the Respondent has several other inactive domain names, which relate to a wide variety of activities, none of which, according to the Complainant, have any bearing on the Respondent’s business. The Complainant is effectively contending that the Respondent is a domain name dealer and has no particular interest in any of the activities to which his domain names might be thought to relate.

Identical or Confusingly Similar

The Complainant contends that the Domain Name is identical or confusingly similar to trademarks in respect of which the Complainant has rights.

Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant summarises its position under this head as follows:

“1. The Respondent has no relevant trademark registrations of the name CAMPER.

2. The Complainant’s rights pre-date the registration of the Domain Name.

3. The Respondent has never used the Domain Name.

4. Nobody, except manufacturers of campers or camping service providers can use the Domain Name without trading off the Complainant’s goodwill.

5. The Respondent has not offered any bona fide goods or services using the Domain Name.

6. The Respondent is not known by the Domain Name.

7. The Respondent has not made non-commercial or fair use of the Domain Name and there appears to be no other basis on which we could find that Respondent has rights or a legitimate interest in the Domain Name”.

Bad Faith

Finally, the Complainant contends that the Domain Name was registered and is being used in bad faith. In support of this allegation the Complainant claims that paragraph�4(b)(i) of the Policy is applicable and points to the Respondent’s offer to sell it for €45,000.

The Complainant also contends pursuant to paragraph�4(b)(ii) of the Policy that the Respondent acquired the Domain Name for the purpose of blocking the Complainant. The Complainant asserts that the Respondent has done this to push the Complainant to accept its offer of €45,000. The Complainant points to the fact that there has been no use of the Domain Name since it was registered in 1997, and notwithstanding the Respondent’s allegation previously that he was developing and testing his website. The Complainant contends that this is a passive holding of the Domain Name and constitutes bad faith of the kind articulated in Telstra Corporation Limited v. Nuclear Marshmallows (WIPO Case No.�D2000-0003). The Complainant goes on to assert that the Respondent has registered the Domain Name in order to prevent the Complainant from reflecting its trademark in a corresponding Domain Name.

The Complainant asserts that the Respondent is diverting consumers away from the official site of the Complainant “because the site gives the consumers especially those that are abroad the impression that the Complainant does not have a website ‘does not have public web presentation’ and making it difficult for the Complainant’s customers and the general public to locate the Complainant’s official website”.

The Complainant effectively goes on to contend that the Respondent is using the Domain Name in bad faith contrary to paragraph�4(b)(iv) of the Policy.

Finally, while the Complainant accepts that the Respondent is not a competitor of the Complainant, the Complainant nonetheless asserts that the Respondent falls foul of paragraph�4(b)(iii) of the Policy (namely “you have registered the domain name primarily for the purpose of disrupting the business of the competitor”). The Complainant argues that if the Respondent was to sell the Domain Name to a competitor, that competitor would be likely to use it to disrupt the business of the Complainant and cause a substantial likelihood of confusion.

B. Respondent

The Respondent has responded and has taken issue with the Complainant in relation to all aspects of the Complaint. However, for reasons which will become apparent, the Panel does not find it necessary to detail the Respondent’s arguments here. That said, it is to be noted that the Respondent contends that in lodging this re-filed complaint, the Complainant has acted in bad faith. The broad basis of the allegation is that when re-filing the Complaint the Complainant must have known that the application was unmeritorious. Moreover, the Complaint is littered with false/overstated claims both as to the Complainant’s rights and as to the Respondent’s motives. A specific allegation of bad faith relates to the fact that the email exchanges following the earlier decision, which were exhibited to the Complaint, omitted the opening email. The Respondent’s complaint is that by omitting this email the Complainant sought to obscure the fact that it was the Complainant, not the Respondent, which started the purchase/sale discussions.

6. Discussion and Findings

According to paragraph�4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that

(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in bad faith.

If the Complaint fails, the Panel has to have regard to paragraph�15(e) of the Rules and in particular the following sentence namely:

“If after considering the submissions the Panel finds that the Complaint was brought in bad faith, for example in an attempt at reverse domain name hijacking or was brought primarily to harass the domain name holder, the Panel shall declare in its Decision that the Complaint was brought in bad faith and constitutes and abuse of the Administrative Proceeding.”

Reverse Domain Name Hijacking is defined in paragraph�1 of the Rules as meaning “using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name”.

Re-Filed Complaints

Before dealing with the individual elements of paragraph�4(a) of the Policy which the Complainant is required to prove in order to succeed in the Complaint, it is first necessary to consider whether this re-filed Complaint should be considered at all.

It is a re-filed Complaint in the sense that it is a second Complaint filed in respect of the same Domain Name and against the same registrant by the same Complainant.

The rules in relation to re-filed Complaints are now reasonably well established in UDRP case law and notwithstanding that the Policy makes no express reference to any limit on the number of Complaints which may be filed by the same Complainant against the same Respondent in relation to the same Domain Name.

The two principal ‘authorities’ on the matter of re-filed Complaints are Grove Broadcasting Limited v. Telesystems Communications Limited (WIPO�Case�No.�D2000-0703) and Creo Products Limited v. Website in Development (WIPO�Case No.�D2000-1490).

The Panelist in the latter case distinguished between, on the one hand, re-filed complaints that concern the acts which form the basis of the original complaint and, on the other hand, re-filed complaints that concern acts which have occurred ‘subsequent’ to the decision in the original complaint. The Complainant contends that this case is in the latter category.

The Panel approaches this complaint on the basis that it is a re-filed complaint in the latter category. It is based mainly on new evidence relating to an issue which was not contended for by the Complainant last time around. The Panel in the present case is prepared to assume in favour of the Complainant that this is not a case of res judicata.

On the basis of the reasoning in the above ‘authorities’, the Panel takes the view that for a re-filed complaint in this category to be accepted for a decision, the new evidence:

(a) Must be material to an issue falling to be decided under the Policy;

(b) Must not have been readily available/discoverable at the time of the earlier complaint;

(c) Must be prima facie credible;

(d) Must not be ‘more of the same’ (i.e. additional evidence of a kind already before the panelist in the earlier complaint).

As indicated above, it does not appear from the Complainant’s contentions first time around or from the factual background set out in the original decision that there had been any suggestion that the Respondent registered the Domain Name in order to sell it at a profit to the Complainant. The evidence now put forward by the Complainant was obtained after the earlier decision and certainly demonstrates that the Respondent was at that stage prepared to divest himself of the Domain Name for €40,000 – €50,000. Evidence of a willingness to sell at a large profit can in certain circumstances constitute evidence of registration and use in bad faith within the meaning of paragraph�4(a)(iii) of the Policy.

In WIPO Case No. D2000-0703 at paragraph�6.14 the Panelist had this to say about re-filed complaints in this category:

“In relation to the second type of Re-Filed Complaint, namely those that concern acts which have occurred subsequent to the decision on the original Complaint, it seems to this Administrative Panel that a different approach is warranted. With a Re-Filed Complaint of this type, the concept of res judicata does not arise. Because the subsequent complaint concerns acts which occurred after the original decision, it is not an action upon which an adjudication has already taken place; subsequent complaint is truly a new action under the Uniform Policy. It follows that, subject to one exception, the merits of a Re-Filed Complaint of this type should be determined in the same manner as any new complaint under the Uniform Policy. The exception is that the acts on which the Re-Filed Complaint is based should not be, in substance, the same as the acts on which the previous complaint was based (even if those previous acts would likely be included as part of the facts and arguments asserted in the new complaint). That is to say, the acts on which the Re-Filed Complaint is based need be such as to mean that the Re-Filed Complaint is truly a new action under the Uniform Policy, not just an application for re-adjudication of the previous complaint. (When properly applied, this exception would preclude an unsuccessful complainant from lodging, in the hope that the subsequent panel will come to a different conclusion on the facts, a Re-Filed Complaint based on subsequent acts that are either a repetition of or substantially the same as the acts on which the previous Complaint was based.)”

It is to be noted that in any such case the re-filed complaint might well include a wide variety of material, some of it being a repeat of what was in the original complaint, some of it being ‘more of the same’ (i.e.�additional new material of a similar type to material in the original complaint) and some of it being entirely new. In addition, some of the new/additional material will be material which could have been discovered with reasonable endeavour at the time of the original complaint and some of it will not. Having decided that the complaint should be entertained, to what extent if at all should the Panel seek to distinguish between these different strands of material in coming to a decision, ignoring some and, as to the rest, giving more weight to some than to others?

The Panel believes that a broad, common sense approach is called for. The Panel proposes to approach the case before it on the basis that such new evidence, which was not available and could not reasonably have been anticipated to have been available at the time of the original complaint, is the core evidence by reference to which the decision will be arrived at. After all, it was this evidence which has led to the Complaint being accepted for hearing. Had the Complaint merely contained the original material supplemented by ‘more of the same’ and material which could have been discovered earlier and ought to have been included in the original complaint, the Complaint would have been rejected out of hand. If following examination of that core evidence, the Panel is in any doubt as to what the correct decision should be, the Panel will look at that evidence in the context of the rest of the evidence to seek to resolve the doubt. If the Panel is still in any serious doubt, the Complaint must fail.

A. Identical or Confusingly Similar

While, as the Respondent points out, many (if not all) of the Complainant’s registered marks are device marks, the most prominent element of those registrations is the word CAMPER. The Panel suspects, although it is not entirely clear from the exhibits to the Complaint, that some of the registrations are CAMPER word mark registrations.

Either way, however, the Panel is satisfied that the Domain Name, which comprises the word CAMPER and the generic domain suffix, is at the very least confusingly similar to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

Given the Panel’s views in relation to bad faith (below) and without making any specific finding in the matter, the Panel is prepared to accept for the purposes of this decision that the Respondent has no rights or legitimate interests in respect of the Domain Name.

The Panel notes that while the Respondent makes a number of assertions as to his use/proposed use of the Domain Name, none of those assertions is supported by hard evidence. Offering the Panel access to the Respondent’s online materials without offering to make those materials available to the Complainant is not a satisfactory method of adducing evidence for an administrative proceeding of this kind.

C. Registered and Used in Bad Faith

The Complainant contends that one way and another all four of the examples of bad faith registration and use set out in paragraph�4(b) of the Policy are applicable in this case.

The primary claim is that the Respondent registered the Domain Name with a view to selling it at a profit to the Complainant (paragraph�4(a)(i) of the Policy). Allied to that contention is the Complainant’s assertion that the Respondent deliberately blocked the Complainant from registering it (paragraph�4(a)(ii) of the Policy) in order to encourage the Complainant to agree to pay more for the Domain Name.

Essential to these allegations is the evidence provided by the email exchanges between the parties since the original decision. Those exchanges (to the extent that they are before the Panel) are set out in full in the Factual Background above.

When the Panel first read the papers a paragraph�of the Complaint which stood out was the following:

“Since it is not possible to conceive of any actual or contemplated use of the Domain Name that would not be illegitimate, it is obvious that the Respondent’s primary and true motive was speculatively to register the Domain Name with a view to selling it for a profit.”

If it is obvious now, why was it not obvious at the time that the earlier Complaint was filed? Why was this claim not included in the original complaint?

Be that as it may, the Panel does not accept the Complainant’s assertion. There are any number of legitimate uses that the Respondent could make of the Domain Name which would not infringe any rights of the Complainant. At the time that the first complaint was filed it was far from obvious that the Respondent’s motive for registering the Domain Name was to sell it. The Complainant did not allege such a motive, the Respondent showed no signs of wanting to let the Domain Name go and the panellist saw no signs of any money-making motive on the part of the Respondent.

Following the dismissal of the first complaint and after the Complainant had approached the Respondent to find out whether the Respondent would be prepared to sell the Domain Name and after the Complainant had nominated a figure well in excess of the Respondent’s out-of-pocket registration expenses, the Respondent nominated a much higher figure. Why, the Panel wonders, should this not be a reasonable perception on the part of the Respondent as to what a commercial entity desiring the Domain Name would be prepared to pay for it? After all, by this time, the Respondent was aware of the lengths (or some of them) that the Complainant was prepared to go to in order to obtain the Domain Name and he had in his favour a UDRP decision confirming that he was a legitimate holder of the Domain Name.

The matter can be approached another way. What would the Complainant have done if the Respondent had accepted the Complainant’s offer of €3,000 for the Domain Name? Would the Complainant have sought to use the Respondent’s acceptance as an indication of bad faith registration and use? If €3,000 was a proper offer to make to the Respondent, why was €45,000 not a proper riposte from the Respondent? Where would it have been appropriate to draw the line?

In the Panel’s view, there is no sensible line that can be drawn. In the circumstances of this case, the mere pricing of the Domain Name at a very high level cannot in itself indicate bad faith at the time of registration.

What else is there to suggest that the Respondent was acting in bad faith when he registered the Domain Name? The Complainant points to the lack of use. That was not something which impressed the original panelist and it does not impress this one.

The Complainant points to the Respondent’s trademark application for CAMPER for services having nothing to do with camping. The Complainant’s point is that at an earlier stage the Respondent had said that he wanted to use the Domain Name for matters related to camping. However, the document, which the Complainant has exhibited, simply indicates that the mark applied for is for ‘communications services’ in class 38 and for ‘miscellaneous service marks’ [sic] in class 42. The Respondent asserts that those services will be particularly directed to campers. The Panel understands the inference which the Complainant is seeking to draw, but is not satisfied that it is a fair inference to draw on the material before the Panel and in the face of the Respondent’s explanation.

Likewise, without more evidence, the Panel is not prepared to read particular significance in the fact that, as asserted in the Complaint, the legend on the Respondent’s webpage has changed. The change seems to the Panel to be a relatively innocuous change.

Finally, the Complainant points to other issues involving the Respondent and domain names. The Respondent is said to have made fraudulent applications in the ‘.info’ Sunrise period and to hold various other domain name registrations, which have nothing to do with his Internet service activities. The suggestion appears to be that he is a serial cybersquatter. However, the Complaint does not provide detailed particulars of those events, thereby making it difficult for the Panel to decide, for example, whether the Respondent’s contested registrations were for generic domain names or domain names featuring the trademarks of others.

While the Respondent might have been aware of the Complainant’s trademark rights when he registered the Domain Name, there is nothing before the Panel to suggest that he registered the Domain Name with the Complainant or its trademark in mind.

The allegations that the Respondent registered the Domain Name to deceive Internet users or to disrupt the business of the Complainant or to sell to a competitor of the Complainant are speculative. They are unsupported by any hard evidence.

The fundamental problem for the Complainant, as the previous panelist observed, is that the Complainant’s trademark, while it is well-known as a trademark for the Complainant’s goods, is an ordinary dictionary word capable of many entirely innocent uses. For the Complainant to succeed in this complaint, the Complainant needed cogent evidence to demonstrate that the Respondent’s motives were other than entirely innocent at time of registration of the Domain Name. Nothing of that kind has been put before the Panel.

The Complainant’s eagerness to acquire the Domain Name, combined with the expense to which the Respondent was put to defend the original complaint, may have been among the factors that led to the Respondent putting a very high price upon the Domain Name. At all events, the Panel is of the view that there could have been several reasons why the Respondent priced the Domain Name as he did and that it cannot fairly be inferred from that that the Respondent’s motives at the time of registration over seven years ago must have been mala fide.

The Panel finds that the Complainant has failed to prove that the Domain Name was registered and is being used in bad faith within the meaning of paragraph�4(a)(iii) of the Policy.

7. Decision

For all the foregoing reasons, the Complaint is denied.

8. Reverse Domain Name Hijacking

While the Panel is sympathetic to the Respondent’s evident anger at having been put to further unnecessary expense in defending the Complaint and while there are aspects of the Complaint which the Panel regards as most unfortunate (in particular the failure to include the opening email from the Complainant in the latest email exchange), the Panel is ready to accept that it was as a result of carelessness rather than a deliberate attempt to deceive the Panel. Insofar as the missing opening email is concerned, the second email, which was exhibited, made it clear that it was a follow-up to an opener from the Complainant.

The Panel declines to find that this complaint was brought in bad faith.

Tony Willoughby
Sole Panelist

Dated: March�3,�2005

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