The Complainant is RIA Novosti of Moscow, Russian Federation, represented internally.
The Respondent is Roman Tor of Moscow, Russian Federation, appearing per se. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with GoD, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 1, 2011. On February 2, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 2, 2011, 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.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 February 21, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 13, 2011. The Response was filed with the Center on February 17, 2011.
The Center appointed Alistair Payne as the sole panelist in this matter on March 17, 2011. 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 is a leading news agency in the Russian Federation and amongst other publications publishes “The Moscow News” an English language newspaper published in Moscow since 1930. Since 2009 this newspaper has been published in numerous Middle Eastern countries and is translated into Arabic under the phonetic name “Anbaa Moscow”. The Complainant has various registered trade mark rights for combined word and logo marks incorporating the mark THE MOSCOW NEWS and one combined registration for this mark in Arabic script. It has also registered and operates a website at .
The Respondent is the registered owner of the Disputed Domain Name and appears to have registered the Disputed Domain Name in the course of carrying out duties as an employee or agent of Rainland Enterprises Limited a company that contracted with RJI Capital Services AG to assist the Complainant in building up and distributing its news service in the Middle East including by maintaining the website of the Complainant at the Disputed Domain Name. 5. Parties’ Contentions A. Complainant
The Complainant submits that it enjoys a very substantial reputation in the name or mark ANBAA MOSCOW in the Middle East and owns registered trade mark rights in the registered combined mark 421201 in Russian Federation for an Arabic script version of THE MOSCOW NEWS which the Complainant says has a phonetic name of ANBAA MOSCOW and which is reflected in the domain name .
The Complainant further says that the Respondent has no rights or legitimate interests in the Disputed Domain Name and is not making a bona fide offering of goods or services under this name.
As far as bad faith is concerned the Complainant says that the Respondent registered the Disputed Domain Name using the Complainant’s address to make the registration look as if it was the Complainant’s and then attempted to portray the website as the official website of “Anbaa Moscow” which was edited by that organization, when in reality this was done without the Complainant’s permission and in spite of its requests for transfer. The Complainant says that the Respondent is allowing Rainland to use the website to try to pressurize RJI into making payments to which Rainland is not entitled and says that Rainland renewed the Disputed Domain Name for a further year in order to maintain this pressure. B. Respondent
The Respondent says that this dispute is fundamentally ancillary to a commercial dispute between the parties concerning payment for services rendered and that accordingly it is inappropriate for the Complainant to invoke these proceedings and relies on the panel’s decision in this regard in Clinomics Biosciences Inc. v. Simplicity Software, Inc.,WIPO Case No. D2001-0823.
The Respondent says that while working as a service provider for the Complainant it conceived and registered the Disputed Domain Name especially to conform with the Complainant’s THE MOSCOW NEWS brand name. It says that it developed the phonetic spelling of “Anbaa Moscow” with a double “aa” for the Complainant and that it registered the domain name on November 3, 2009 and before the Complainant registered on August 31, 2010.
The Respondent submits that its sole interest in the Disputed Domain Name is that its registration and development formed part of the work carried out by the Respondent for the Complainant for which it has not yet been paid.
Essentially, the Respondent says that it did not register or use the Disputed Domain Name in bad faith. The registration and development of the website to which the Disputed Domain Name resolves was undertaken in the course of carrying out commercial services for the Complainant. The site was expressly developed as the Complainant’s official site, with the Disputed Domain Name being registered to the Complainant’s address and was operated for Anbaa Moscow for some time in this capacity, all of which was done with the permission of the Complainant. Subsequently and even after the Complainant attempted to unilaterally terminate the Respondent’s continued services without payment, the Respondent has maintained and paid for renewal of the Disputed Domain Name with the website contact intact exactly as it was originally as the official website of Anbaa Moscow. The Respondent says that the Complainant’s single email requesting transfer of the website’s host machine was part of its effort to terminate its commercial relationship with the Respondent without paying for services as agreed. 6. Discussion and Findings
Both parties made supplemental filings in this case in relation to the identity of the Respondent’s identity. The Respondent submits that “Roman Tor” is a pseudonym for Rainland which was requested expressly by the Complainant in order to avoid disclosure of certain persons involved in the project. The Complainant denies this and says the Respondent does not exist and it has no commercial dispute with the Respondent. In the circumstances the Panel exercises its discretion to consider both supplemental findings but on the facts overall accepts the Respondent’s submission that it is in fact the Respondent in this case and that “Roman Tor” is a pseudonym exercised by the Respondent. 7. Discussion and Findings
Registered and Used In Bad Faith
In the Panel’s view this is not a case that concerns bad faith cybersquatting and there is no evidence, in particular, of registration of the Disputed Domain Name in bad faith as required under the Policy. Accordingly, the Panel does not need to consider the first and second elements of the Policy further.
The Panel accepts the Respondent’s submission that the Disputed Domain Name was not registered in bad faith but was registered by the Respondent on behalf of his employer who was engaged at that time in providing services to the Complainant including the development of a website at the Disputed Domain Name. This finding is supported by the fact that the Respondent included the Complainant’s address in the registration details for the Disputed Domain Name and that there is no content on the website which relates to the Respondent or its employer, other than what appears to be bona fide content relating to a Middle Eastern news website belonging to the Complainant. In addition the website is maintained under its initial title of “Official Website of Anbaa Moscow”. In these circumstances it is simply not credible for the Complainant to deny all knowledge of the registration of the Disputed Domain Name, or of the website to which it resolves in these circumstances.
There is also no evidence that the Respondent has subsequently sought to alter the content of the website. Neither is there a link from the site, whether for advertising purposes or otherwise, which would benefit the Respondent or its employer or be indicative of use of the Disputed Domain Name in bad faith. It appears that the Respondent and his employer have not updated the news website for some time, probably since the commencement of its dispute concerning payment for services rendered. In the Panel’s view this course of conduct is hardly surprising in circumstances that the Respondent and its employer refuse to undertake further work until what they consider to be a bona fide payment dispute is resolved. Neither is there evidence of the Complainant having made a clear and formal request for transfer of the Disputed Domain Name, with the exception of a one-line email in which the Respondent submits was part of the Complainant’s request for transfer of the website’s host machine and was made as part of its effort to terminate its commercial relationship with the Respondent without paying for services as agreed. In these circumstances the Panel does not view this as a passive holding in bad faith.
This dispute really appears to concern a broader commercial payment dispute between the parties and the Panel agrees with the Respondent that it is inappropriate for determination under the Policy and should be resolved by the courts, or in an appropriate legal forum, as other UDRP panels have found in cases such as Clinomics Biosciences Inc. v. Simplicity Software, Inc., supra. 8. Decision
For all the foregoing reasons, the Complaint is denied.
Alistair Payne
Sole Panelist
Dated: March 28, 2011
Full & Egal Universal Law Academy