WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Braunstone Community Association v. Alan Davie
Case No. D2005-1279
1. The Parties
The Complainant is Braunstone Community Association, of Braunstone, Leicester, United Kingdom, (the “Complainant”) represented by an internal representative.
The Respondent is Alan Davie, of Braunstone Estate, Leicester, United Kingdom (the “Respondent”).
2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with NetBenefit plc aka NetNames (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December�9,�2005. On December�9,�2005, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name at issue. On December�13,�2005, the Registrar 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 Restrictions Dispute Resolution Policy (the “RDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), the Supplemental Rules for Restrictions Dispute Resolution Policy (the “Supplemental Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “WIPO 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 December�19,�2005. In accordance with the Rules, paragraph 5(a), the due date for the Response was January�8,�2006. The Response was filed with the Center on January�6,�2006.
In an exchange of emails on January�12 and�13,�2006, the Center drew the Respondent’s attention to certain defects in the Response and, significantly, that the Response contained nothing to counter the allegation that the Domain Name is not being or will not be used primarily for a bona fide business or commercial purpose. The Respondent indicated that it did not wish to amend the Response.
The Center appointed Tony Willoughby as the sole panelist in this matter on January�24,�2006. 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.
The Panel notes that on January�19,�2006, further communications took place between the parties and the Center by telephone and/or email. In the view of the Panel, nothing in those communications has any bearing on the substance of the dispute.
4. Factual Background
The Respondent registered the Domain Name on October�17,�2004. The Domain Name has been used by the Respondent to connect to the Respondent’s website, which is a site devoted to comment critical of the Complainant.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the Respondent is in breach of the terms of the RDRP in that the Domain Name is not being or will not be used primarily for a bona fide business or commercial purpose.
B. Respondent
The Response is devoted entirely to explaining why the Respondent’s criticisms of the Complainant are justified.
6. Discussion and Findings
Under paragraph 4(a) of the RDRP, a respondent is required to submit to an administrative proceeding if a complainant asserts that a “.biz” domain name “is not being or will not be used primarily for a bona fide business or commercial purpose.”
The RDRP then (in paragraph 4(b)) goes on to define what is meant by “bona fide business or commercial use” and in paragraph 4(c), defines what does not constitute bona fide business or commercial use, including the use or intended use of the domain name “exclusively for the expression of noncommercial ideas (e.g. registering exclusively to criticize or otherwise express an opinion on the products or services of ABC company, with no other intended business or commercial purpose).”
There appears to be no dispute that the Respondent is using the Domain Name exclusively for the purpose of criticizing the Complainant and the Panel so holds.
7. Decision
The Complaint succeeds. In so finding the Panel stresses that the basis for the decision has nothing whatever to do with the nature of the Respondent’s criticisms of the Complainant. It is simply that “.biz” domain names are intended for business or commercial use, not the use which the Respondent is making of the Domain Name.
The Complainant seeks transfer of the Domain Name. This concerned the Panel because the Complainant has made no attempt to demonstrate that it has rights to the Domain Name sufficient to justify the Panel directing transfer. However, the Panel has read the decisions of the Panels in ISL Marketing AG, and The Federation Internationale de Football Association v. J.Y. Chung, W, W Co., and Worldcup 2002, WIPO Case No. D2000-0034 and Educational Testing Service v. TOEFL, WIPO Case No. D2000-0044 and in particular the following passage from the former case (quoting in part from the latter) commenting upon whether in circumstances such as those in the present case transfer is an appropriate remedy:
“By requesting transfer of the domain name to itself, Complainant has effectively requested registration of the ‘’ domain name. Although there might be other legitimate users of the domain name that would seek registration subsequent to a cancellation of Respondent’s registration, Complainant’s request for registration should reasonably take precedence under a general first-in-time principle applicable to legitimate requests for registration.
“This Administrative Panel agrees with that statement of principle. Further, a decision of an Administrative Panel under the Uniform Policy to transfer a disputed domain name to a Complainant does not mean that the Complainant obtains an invulnerable domain name registration. It remains open to any party to bring an action against a former Complainant’s holding of a domain name. Thus, an order of transfer should not prejudice the position of a third party who wishes to impugn the holding of a domain name registration obtained by way of an Administrative Panel’s order of transfer.”
Adopting that reasoning, the Panel orders that the Domain Name, , be transferred to the Complainant.
Tony Willoughby
Sole Panelist
Date: January�28,�2006
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