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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Franзois Collignon and GOLOG v. Sandrine Durand

Case No. D2006-1403

 

1. The Parties

The Complainants are M. Franзois Collignon, le Cannet, France (the “First Complainant”) and GOLOG, Paris, France (the “Second Complainant”), both being represented by Cabinet Dreyfus & Associйs, France.

The Respondent is Sandrine Durand, Miami Beach, Florida, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name, <golog.com>, (the “Domain Name”) is registered with Communigal Communications Ltd (the “Registrar”).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2006. On November 6, 2006, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 8, 2006, 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 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 (“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 November 14, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was December 4, 2006. The Response was filed with the Center on December 4, 2006.

The Center appointed Tony Willoughby (the “Panel”) as the sole panelist in this matter on December 12, 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 parties are embroiled in a dispute, which goes far beyond the issue of ownership of the Domain Name. From about October 2004 to May 2006, the Respondent was Managing Director of the Second Complainant’s North American business. The relationship terminated on a less than amicable basis and the situation has deteriorated further because the Respondent alleges that the Complainants (a) induced her by fraud to enter into a termination agreement and (b) have failed to honour their side of that agreement (for further detail see below).

The Complainants certify in their Complaint that “No other proceedings have been commenced or terminated in connection with or relating to the domain names [sic] that are the subject of the Complaint.” The Respondent identifies (i) ‘a legal procedure’ which she has commenced against the Complainants and others ‘in front of the State Attorney of Miami Dade County’ in Florida; (ii) ‘a legal procedure’ against the Complainants and others ‘in front of the Tribunal de Commerce of Nice; (iii) a Complaint she has lodged against the First Complainant and another with the Parquet of Paris; (iv) a claim she has made against the First Complainant and another ‘in front of the Parquet the Tribunal de Grande Instance of Paris’.

The Respondent requests the Panel to declare its lack of jurisdiction in the matter since “The domain name <Golog.com> is a full part of a case falling under the Jurisdiction of the French and American Courts.”

Particulars of the Respondent’s claims are to be found in Annex 12 to the Response, which is a letter from the Respondent’s attorney dated August 21, 2006, and addressed to 15 persons including the Complainants. The grounds for complaint include the following:

a) The Respondent is owed money;

b) She was induced to sign a settlement agreement on the promise of a Sales Referral Agreement which has not materialized;

c) She has been lied to and the inducement to get her to sign the settlement agreement was a fraudulent inducement;

d) The Second Complainant and others abused their economically superior position to coerce the Respondent to sign the settlement agreement.

The letter demands payment of three sums of money, being USD 120,898.88 for backpay, reimbursement of expenses etc; Euros 360,000 in payment for 60 shares; and USD 50,000 “as compensatory damages for firing [the Respondent].”

The letter contains no reference to the Domain Name. The Respondent provides no information in support of her assertion that “The domain name <Golog.com> is a full part of a case falling under the Jurisdiction of the French and American Courts”.

The Panel was concerned to ensure that in proceeding to a decision in this case it should not be trespassing on the preserve of a competent court and on December 21, 2006, issued a procedural order in the terms of that attached to this decision, the primary purpose being to establish the extent to which, if at all, the proceedings referred to by the Respondent concern the Domain Name. The procedural order also sought to clarify the details of the changes to the Registrar’s Whois database and the proprietorship of Golog International Inc., the Respondent’s predecessor as registered proprietor of the Domain Name.

The Respondent filed her response to the procedural order on December 27, 2006, the Complainant filed a reply on January 11, 2007 and the Respondent filed a supplementary submission on January 18, 2007.

Having read those further filings, the Panel is reinforced in his view that the dispute between the parties is (a) highly complex and (b) essentially a contractual dispute involving a money claim. The Complainant appears to be unaware of the French proceedings initiated by the Respondent and points out that the US proceedings initiated by the Respondent were commenced after the Complaint was filed.

It appears to the Panel that the proceedings only concern the Domain Name to a very limited degree. The Respondent claims that she has not been properly reimbursed for fees paid by her in respect of the Domain Name and/or the website to which it was connected. This is not an issue, which concerns proprietorship of the Domain Name. The Panel sees no reason why this proceeding should be suspended. Clearly, if a competent court concludes that the effect of this decision should be reversed and so orders, that court’s order will take precedence over this decision.

The Panel declines to suspend this proceeding.

 

4. Factual Background

The Domain Name was first registered on March 10, 1999. There appears to be a dispute as to who registered it. The Complainants claim that it was registered by the Second Complainant, whereas the Respondent claims that it was originally registered by an unconnected third party, who used the Domain Name to connect to a real estate site, and produces evidence to support her claim.

The First Complainant has been engaged in the Internet services industry for some years. As to the Second Complainant, the Panel has found the various company registration documents (many of which are in French) difficult to understand, but it appears from the papers submitted by the parties that there are or have been several Golog companies in existence, namely Golog SA, a French company, Golog Sprl, a Belgian company, Golog Sarl, a French company, and Golog International Inc. and Golog Inc., both being US companies. All these companies are mentioned in contexts, which indicate that they are associated with one another and all of them appear to be majority owned either by DNS Holdings SA, a French company, the president of which is the First Complainant, or the First Complainant. Except where the context so requires the Panel treats these companies and the First Complainant as being one and the same for the purposes of this decision. It is to be noted that both parties themselves use the term ‘Golog’ generally to refer to the Complainants and their associated companies.

On October 6, 2004, the Respondent entered into a Memorandum of Understanding with the First Complainant whereby the Respondent was to become manager and a shareholder of the US business of the Complainants and would to their mutual benefit develop for the Complainants their business in the United States and in time their business throughout the Americas. Two Golog companies were duly incorporated in the United States and the Respondent became the Managing Director of the Florida operating company, Golog International Inc.

As indicated above, there is a dispute between the parties as to the early history of the Domain Name, but for the purposes of this decision the Panel accepts as fact the Respondent’s version, namely that the Domain Name was originally in the hands of an independent third party and that she purchased the Domain Name for the Complainants on February 3, 2005, for USD 690.95 using her own credit card.

On August 4, 2005, the First Complainant applied to register GOLOG (word) as a Community Trademark in classes 35, 38 and 42 for a variety of advertising, telecommunications and technological services. The registration came through on July 6, 2006.

On May 12, 2006, the Respondent entered into a Settlement Agreement, which provided for termination of the Respondent’s employment and transfer of her shares in the relevant US company. The other signatory was one Daniel Druetto, purporting to act on behalf of the Complainants.

On August 7, 2006, the First Complainant wrote to the Registrar requesting the Registrar to change the registrant contact details for the Domain Name from the Respondent’s email address to the Complainants’ email address. At that stage the registrant was identified on the Registrar’s Whois database as “Sandrine Durand, Golog International Inc.”

On August 21, 2006, the Respondent’s attorney wrote to the Complainants and their associates setting out the basis of the Respondent’s complaint and demanding the sums of money said to be due to her. For further details of the letter see section 4 above.

On or after September 4, 2006, the registrant details on the Whois database were changed. The registrant now appears as “Sandrine Durand”, without any reference to Golog International Inc.

On October 19, 2006, on the application of Golog Sprl, the Belgian Golog company, a court in Charleroi issued an order requiring the Respondent to remove from the website connected to the Domain Name an announcement publicising inter alia the alleged suspension of <golog.com> because the Complainants owed money to the Respondent.

The Domain Name is now connected to a website featuring the Respondent’s curriculum vitae.

 

5. Parties’ Contentions

A. Complainant

The Complainants contend that the Domain Name is identical to a trademark or service mark in which they have rights, namely their Community Trademark GOLOG. They point out that at all material times the Respondent was aware that GOLOG was the name under and by reference to which they traded.

They further contend that the Respondent has no rights or legitimate interests in respect of the Domain Name.

Finally they contend that the Domain Name was registered and is being used in bad faith. They contend that the changing of the details on the Registrar’s Whois database identifying the Respondent as the registrant without any reference to Golog International Inc. constitutes a new registration. In support of their allegation of bad faith registration and use they refer to the circumstances under which the contact details on the database were changed and the subsequent use of the Domain Name to connect to a website indicating that <golog.com> had been suspended because the Complainants owed money to the Respondent. They claim that the Respondent’s primary purpose in changing the Whois database contact details was to put pressure on the Complainants to pay her substantial sums of money.

B. Respondent

The Respondent produces evidence to show that Golog is a term used to describe ‘a new logic programming language’ and claims that the Complainants had nothing to do with it. She does not however appear to contest that the Domain Name is identical to the first Complainant’s Community Trademark.

In answer to the allegation that the Respondent has no rights or legitimate interests in respect of the Domain Name, the Respondent says that the Complainants have always used the domain name, <golog.net>, and were not interested in the Domain Name and that it was left to the Respondent to acquire the Domain Name using her own credit card for the purchase of it in 2005 and the subsequent renewal of it in February 2006. On this point she concludes: “It seems that the Complainant is trying to resolve a legal issue in front of the WIPO to escape from its legal obligation. Today the Complainant owes money to the Respondent and the “www.golog.com” is a part of the asset of the company Golog Inc. registered in the United States.”

The Respondent further denies that the Domain Name was registered and is being used in bad faith. She states: “The domain name was registered always to the US company address, and the Complainant was always the Registrant, Administrative and Technical contact of the domain name.”

The Respondent’s position is that until the Complainants pay for the Domain Name, the Domain Name is not truly theirs. She acknowledges that it was a mistake for her to post the announcement that she did on the website attached to the Domain Name (i.e. the announcement the subject of the Charleroi court order), but she still claims it to be a truthful announcement.

The Respondent recites the matters set out in paragraph 4(b) of the Policy and denies that any of them are applicable in this case.

In the course of the Response and her subsequent submissions filed in response to the procedural order, the Respondent makes a number of allegations against the Complainants and others, namely:

a) Contrary to what the Complainants are attempting to make the Panel believe, there is no agreement between the parties covering the Respondent’s departure;

b) The Complainants have made various fraudulent attempts to recover the Domain Name by seeking to change her email address and password with the Registrar;

c) The Settlement Agreement which the Respondent entered into with a Daniel Droetto (stated to be inter alia a shareholder in GOLOG Sprl in Belgium) was a fraudulent device to deprive the Respondent of her shares and “to wrongfully eliminate him [sic] from the company without any compensation”.

d) The object of all this was “to get the ownership of <golog.com> to the Complainant while spoiling the Respondent”;

e) The Complainants have frequently abused and threatened the Registrar in their attempts to secure the Domain Name;

f) The First Complainant’s affidavits have been made on headed notepaper featuring an address to which Golog International Inc. is not entitled, it having been evicted from that address;

g) The Complainants have lied in relation to the date that they say the Respondent took up her appointment with her current company, Box Telecom;

h) The Complainants have made mistakes in relation to the various invoices they have exhibited to their submissions.

 

6. Discussion and Findings

A. General

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

(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainants have 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.

As will be noted from sections 3 and 5 above, the Respondent feels aggrieved at the way that she has been treated by the Complainants. She has substantial money claims against the Complainants. The Panel wishes to make it clear that not only is he unable to assess the merits of those claims, it is not his task to do so. His task is simply to assess whether or not the Domain Name in the hands of the Respondent constitutes an abusive registration within the meaning of paragraph 4(a) of the Policy.

B. Identical or Confusingly Similar

While the Respondent now appears to object to the Complainants’ adoption of the name GOLOG, it being the name of a new logic programming language having nothing to do with the Complainants, she does not deny the existence of the First Complainant’s Community Trademark registration of GOLOG, nor does she (or could she) deny that it was the name under and by reference to which the Complainants traded when her collaboration with the Complainants first began.

The Panel finds that the Domain Name is identical to a trademark or service mark in which the Complainants have rights.

C. Rights or Legitimate Interests

Repeatedly, throughout her submissions the Respondent acknowledges that the Domain Name does not belong to her. For example:

a) “Today the Complainant owes money to the Respondent and the www.golog.com is a part of the asset of the company Golog Inc. registered in the United States.”

b) “The domain name was registered always to the US company address, and the Complainant was always the Registrant, Administrative and Technical contact of the domain name.”

c) “The domain name cannot be separated from the other assets of the companies”.

d) “The domain name: Golog.com is a part of the asset of the Company GOLOG in the US and trying to change the owner of the domain name, the Complainant is trying to empty the US company and try to get transfer [sic] this asset in France and not reimburse the money due to the Respondent”.

The Respondent has not established any rights or legitimate interests in respect of the Domain Name for the purpose of the Policy. Her only apparent interest is in being reimbursed the money, which she says she is owed, which is a very different interest.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

D. Registered and Used in Bad Faith

Essentially, the Complainants’ complaint is that the Respondent transferred the Domain Name into her own name in order to pressurize them into paying the Respondent substantial sums of money. They say that this constitutes bad faith registration and use within the meaning of paragraph 4(a)(iii) of the Policy.

The Respondent for her part has no apparent interest in the Domain Name save insofar as her possession of it might induce the Complainants to pay her what she says she is owed. She says that the money she has been paid (and for which the Complainants have produced documentary evidence) do not cover her expenses in acquiring and renewing the Domain Name, transactions which she conducted using her personal credit card, but cover the web designer’s fees in relation to the website connected to the Domain Name. She says that while the Domain Name is an asset of the Complainants and/or their US company she will not release it to the Complainants until she has been paid. For completeness it should be said that she claims that the payments made by the Complainants were in fact underpayments because the payments were made in the wrong currency.

There is some doubt (at any rate in the mind of the Panel) as to who has been the true owner of the Domain Name registration. There appears to be no dispute that from February 2005 when the Respondent purchased the Domain Name until August 2006 the Registrar’s Whois database identified the registrant as “Sandrine Durand, Golog International Inc.” Does this make Sandrine Durand the owner or is her name simply there to indicate the name of the contact at Golog International Inc. with Golog International Inc. being the owner?

The Complainants are in no doubt. They contend that Golog International Inc. was the owner. The Respondent is not so precise but in any event does not herself claim ownership. As can be seen from the quotes from her submissions, which are set out in the immediately preceding sub-section, the Respondent variously identifies the owner as “Gogol Inc.”, “the Complainant”, “the companies” and “the company Gogol in the US.”

The Panel is content to defer to the parties and given that the Respondent registered the name and selected Gogol International Inc. for the Registrar’s Whois database, the Panel takes Gogol International Inc. to have been the owner of the Domain Name registration up until the change in the Registrar’s Whois database in September 2006. It is worth pointing out here that according to the Respondent’s response to the procedural order, Golog International Inc. is a company owned by the First Complainant.

In September 2006, the Respondent instructed the Registrar to change the Whois record to eliminate all reference to Golog International Inc. and thereafter the entry referred to the Respondent and the Respondent’s email address.

In real terms that constituted a transfer of the Domain Name to the Respondent, ultimately giving rise to the present case, Golog International Inc. could no longer be said to be the registrant. The transfer was undertaken unilaterally by the Respondent and in the sure knowledge that neither Golog International Inc. nor its owner, the First Complainant, would have consented. In effect, the Respondent appears to have abused her position, a fiduciary position in the form of managing director of the Complainants’ US business, to deprive Golog International Inc. of a domain name to which it was rightfully entitled. Her fiduciary duty in this respect will have survived the termination of her employment.

She acquired the Domain Name for the Complainants and/or their US business of which she was Managing Director and the services of web designers were commissioned to produce a website for the benefit of the Complainants and their US business. Indeed, while the principal domain name used by the Complainants was and is <golog.net>, there is evidence before the Panel to show that the Domain Name was used for the Complainants’ email addresses and its website (see, for example, the sign off to Lantonnet’s email to the Respondent of April 25, 2006). There is nothing before the Panel to show that the Respondent expressly invoiced the Complainants for her expenses in initially acquiring and renewing the Domain Name nor is there anything before the Panel to show that she had retained title to the Domain Name pending reimbursement of those expenses. Indeed her assertions quoted above as to the ownership of the Domain Name make it clear that she did not retain title to it.

In summary, the Respondent registered the Domain Name for the Complainants and/or their US business and, in her capacity as Managing Director of the Complainants’ US business, used it for the benefit of that business. She always regarded it as an asset of the business and never saw herself as having any right or legitimate interest in respect of it. Her unilateral amendment of the Whois record was designed to obtain large sums of money from the Complainants, sums which may or may not be owing. The Panel is not competent to assess the merits of the Respondent’s claims in this respect, but is of the view that, however one looks at it, behaviour of this kind is an abuse under the Policy.

Having ‘secured’ the Domain Name in this way the Respondent then connected it to a website announcing the ‘suspension’ of <golog.com>, because the Complainants owed her money. The announcement was only removed when a Charleroi court required her to do so.

Paragraph 4(b) of the Policy sets out a non-exhaustive list of what shall constitute bad faith registration and use within the meaning of paragraph 4(a)(iii) of the Policy. Paragraph 4(b)(i) of the Policy addresses situations where a respondent acquires a domain name with a view to selling it to a complainant for a sum in excess of his out-of-pocket expenses incurred in acquiring the domain name.

The Panel is not tied to that list, which is non-exhaustive, and finds that the Respondent, by securing the amendment to the Whois database ‘acquired’ the Domain Name for a purpose similar to that which is envisaged by paragraph 4(b)(i) of the Policy. In then using the Domain Name as she did, she demonstrated beyond doubt that that was her purpose.

Accordingly, the Panel finds that the Domain Name was acquired 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, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <golog.com>, be transferred to the First Complainant.

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Tony Willoughby
Sole Panelist

Dated: January 28, 2007