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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Newton 21 Europe sa v. Chris Bejoian, Robby A.J. Mingels, Axafina, Inc.

Case No. D2008-0217

1. The Parties

The Complainant is Newton 21 Europe sa, Belgium, represented by Janson Baugniet scrl, Belgium.

The Respondent is Chris Bejoian (the first Respondent), Axafina, Inc., United States of America; Mr. Robby A.J. Mingels, (the second Respondent), Spain, represented by Virgie R. Corona, United States of America.

2. The Domain Name and Registrar

The disputed domain name <newton21.com> is registered with eNom, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2008. On February 12, 2008, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the domain name at issue. On February 13, 2008, eNom, Inc. transmitted by email to the Center its verification response confirming that Chris Bejoian 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”), 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 22, 2008. The Respondent then requested, to the Center, a four-day extension of time in which to make a Response. The Center, taking into account a number of matters, including that the Respondent was properly notified of this dispute, declined to grant the extension sought, but extended the due date by one day. As such, in accordance with the Rules, paragraphs 5(a) and (d), the due date for Response was March 14, 2008. The Response was filed with the Center on March 14, 2008.

The Center appointed James A. Barker as the sole panelist in this matter on March 28, 2008. 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 following appear to be asserted as facts variously by the Complainant and the Respondent.

The Complainant (a group pf specialized marketing and communication companies) provides evidence that it has registered an international mark for NEWTON21, under the Madrid Protocol.

The second Respondent, via Axafina Inc., provided IT support to the Complainant. It appears that, under that arrangement, the disputed domain name was at some point (not identified in the Complaint) registered in the name of the first Respondent. The Complainant claims that the disputed domain name was then transferred from the second Respondent to the first Respondent, on a date not identified. In the meantime, the domain name no longer was functional for use in connection with email or a website. The Complainant later wrote a letter of demand to the second Respondent, seeking the transfer of the disputed domain name to it.

The Complainant states that the only subsequent response, by email from the second Respondent, was that he confirmed receipt of the Complainant’s communication, attached a number of prior emails between the parties, and stated that he “will call you later”. The Complainant states that the Respondent did not, in fact, do so, and that when again contacted by the Complainant, refused to discuss the matter.

The Respondent states that both the first and second Respondents are employees of Axafina, Inc., and that Axafina is a domain name registration service provider for the disputed domain name.

Both the Complainant and Respondent provide evidence of a series of emails, which appear to relate to clarifying between them the authorization requirements for the transfer of the disputed domain name registration to a different registrar.

The Respondent claims that the Complainant has not paid it for various services it provided, including hosting, email, and related professional fees. The Respondent provided copies of invoices it claims had not been paid. The Respondent states that it “cancelled” services to the Complainant for these reasons. The Respondent denies that it refused to discuss this dispute with the Complainant, and that rather it was the Complainant’s counsel who refused to discuss amounts owing to the Respondent.

(For the purpose of this dispute, the Panel has treated both the individuals named as Respondents as employees, and therefore agents, of Axafina, Inc. As such, references below to the ‘the Respondent’ are references to Axafina, Inc.)

5. Parties’ Contentions

A. Complainant

The Complainant claims that the disputed domain name is identical to its mark NEWTON21.

The Complainant claims that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant appears to suggest that the Respondent transferred the registration of the disputed domain name without the Complainant’s authority. The Complainant claims that the Respondent cannot demonstrate any right or legitimate interests within the meaning of paragraph 4(c) of the Policy. The Complainant relies on the decision in Champion Innovations, Ltd. v. Udo Dussling (45FHH), WIPO Case No. D2005-1094. (That case, as found by the panel, involved the registration by the respondent of a domain name in its own name without the consent of the then complainant.)

The Complainant claims that the Respondent registered and has used the disputed domain name in bad faith. The Complainant states that the Respondent registered the disputed domain name to prevent the Complainant from reflecting its mark in a corresponding domain name; and was acquired primarily for the purpose of disrupting the Complainant’s business.

B. Respondent

The Respondent does not address the first ground of the Policy.

In relation to the second, the Respondent states that it has every right to cancel its services to the Complainant until it is paid for them.

In relation to the third ground, the Respondent denies that it acted in bad faith. The Respondent states that it used the disputed domain name to provide services to the Complainant. The Respondent states that the individuals named in this Complaint should not be so, but rather that it is only Axafina, Inc. that is the proper Respondent.

The Respondent states that it “has never claimed ownership of the Domain Name. Respondent is the defacto Domain Name Registration Service Provider”.

6. Discussion and Findings

Under paragraph 4(a) of the Policy, the Complainant must prove that:

(i) the disputed 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 disputed domain name; and

(iii) the disputed domain name was registered and is being used in bad faith.

These issues are discussed as follows.

A. Identical or Confusingly Similar

The Complainant has a registered mark for NEWTON21. The Respondent does not dispute that the domain name is relevantly identical to the Complainant’s mark, and the Panel so finds.

B. Rights or Legitimate Interests

The Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name, within the meaning of paragraph 4(a)(ii) of the Policy. This is for the following reasons.

Parties arguments

The Panel admits to not finding the Complaint logically or coherently argued, according to the grounds the Complainant is required to establish under the Policy. In relation to this ground, the Complainant appears to argue that it was the Complainant itself that was the original registrant of the disputed domain name, but that the Respondent misled it into transferring the registration into the name of one of the Respondent’s employees.

The Panel similarly admits to finding the Response difficult to follow in many respects – including what, if any, agreement there was between the parties as to any change in the registrant’s details for the disputed domain name. The Response attaches various copies of email communications and WhoIs records, few of which are self-explanatory in this respect, and to which the Respondent does not add much explanation.

However, the Respondent essentially appears to counter the Complainant’s argument, by saying that the Complainant was not misled, and that the Respondent “has every right to cancel or put a hold on the Domain Name until it gets paid for the services it has delivered [to the Complainant]”.

Relevant findings

The following facts, which the Panel finds on the basis of the material attached to the Response and the Complaint, appear to be particularly relevant in this context.

Firstly, the Respondent attaches evidence of what it says was “the approval of the transfer request” on February 12, by the Complainant. That evidence comprises an email dated February 7, 2007, from the Respondent to the Complainant stating, among other things, that “I am sending you attached a letter certifying that the domain transfer of Newton21.com to Axafina is not a [sic] ownership transfer but a simple transfer of domain registrar”. The Complainant’s response to that email was in French. (The Respondent provided no translation of this correspondence, even though these proceedings must be conducted in English, in accordance with the Rules. For this reason, the Panel has not taken such email communications into account. That said, these communications in French, as provided in the Response, appear mostly brief and insubstantial. The Complainant’s response of February 12, 2007 above, as far as the Panel can tell, appeared to merely state vague words, to the effect that the Respondent’s email had been passed on to a ‘Luc Tirriot’, who would do what was necessary ‘to move forward’.)

The Complaint attaches the same letter of February 7, 2007. The Respondent attaches various other emails, including those in the French language (of which it provides no translation), which it says relate to the processing of “the transfer”.

Secondly, WhoIs details, attached to the Response (derived from “www.domaintools.com”) indicate that:

- On November 19, 2007, the disputed domain name was registered in the name of ‘Chris Bejoian’, an employee of the Respondent.

- On November 15, 2007, the disputed domain name was registered in the name of ‘Newton 21 Europe’ (with the Respondent as the technical contact).

This evidence therefore indicates that the registration of the disputed domain name was transferred from the Complainant to the Respondent at some point between November 15, 2007 (when it was registered to the Complainant) and November 19, 2007 (when it was registered to the Respondent). Neither the Complainant nor the Respondent identify the particular day on which the registration was transferred.

Thirdly, on November 20, 2007 (the day after the first date on which there is evidence of the Respondent becoming the registrant), the Respondent (Robby Mingels) sent an email to a representative of the Complainant stating that, among other things, “be hereby notified that as of immediately we will start canceling all services provided to Newton21…Your account with Axafina is generating a lot of expenses for Axafina and your refusal to even make a partial goodwill payment is very questionable as to your true intentions”. There is no evidence of any such demands for payment from the Respondent prior to that date.

Authorization for transfer of the disputed domain name

Taking the above evidence into account, as well as all the other material provided by the parties (to the extent the Panel can make sense of it), the Panel can find no evidence of any agreement by the Complainant for the registration of the disputed domain name to be transferred to the Respondent. The various correspondence attached to both the Complaint and the Response refer to the transfer of the registrar.

Various communications, including those as identified above, also suggest that the Respondent itself does not dispute that the Complainant is the proper “owner” of the disputed domain name. Indeed, the Respondent itself states in the Response that “the domain name has never been acquired by Respondent. The Complainant switched Registrars and transferred the Domain Name to the new Registrar of which the Respondent is a wholesale partner…The domain name was transferred to Respondent as the Domain Name Service Provider and not as the registrant of the domain”. Further, in communications to the Center (in the case file) the Respondent itself stated on March 12, 2008, that “…we have no interest in the newton21.com domain”.

It is difficult to understand what the Respondent intends by these statements. They are (if taken literally) plainly at odds with the evidence. The Respondent, through one of its employees, is apparently the holder of the disputed domain name, as reflected in the WhoIs records. This is the entire basis for this proceeding under the Policy. In other words, there has been more than a mere change of the registrar. And, in any event, the named registrar for the disputed domain name is eNom, Inc. – not the Respondent.

Taking into account the evidence, the only meaning which the Panel can reasonably derive from these statements is that the Respondent considers that it holds the domain name registration beneficially, as the Complainant’s service provider, and that the Complainant remained the de facto ‘owner’ of the domain name. Whether or not the Complainant understood that this would be the effect of the transfer that occurred between November 15 – 19, 2007, is not clear.

The Panel finds that it is very unlikely that the Complainant had any such understanding, given the statements in the Complaint, and the lack of any clear statement in the evidence of correspondence between the parties on this matter. Certainly there is nothing in the evidence of that correspondence which made it clear that the registration details for the domain name would be changed at all – let alone changed from listing ‘Newton 21 Europe’ as the registrant, to ‘Chris Bejoian’ as an employee of the Respondent. The evidence also suggests that the Complainant was concerned to obtain a clear statement from the Respondent that any transfer relating to the disputed domain name would not affect its operation or ownership. (Although the Panel notes that it has inferred this from all the facts – neither of the parties make it clear what prompted the Respondent to give such an assurance to the Complainant in its correspondence of February 7, 2007, referred to above.) Also, and importantly, the evidence does not show that the Complainant authorized any transfer relating to the disputed domain name. The communications which the Respondent points to for support on this point simply do not help it.

For these reasons, the Panel finds that the transfer of the registration into the name of the Respondent’s employee was not authorized by the Complainant. An unauthorized transfer, from a legitimate holder of that registration, cannot establish a right or legitimate interest by the Respondent in the disputed domain name.

This does not mean that the Respondent may not have a legitimate contractual dispute – as it claims – with the Complainant. However, such a dispute is not within the scope of the Policy to determine. Neither does the existence of any such dispute affect the Panel’s finding that the transfer of the registration was not authorized by the Complainant.

The Complainant has therefore established its case under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For somewhat similar reasons, the Panel finds that the registration and use of the disputed domain name was in bad faith, for the purposes of paragraph 4(a)(iii) of the Policy.

The registration of the disputed domain name appears to have arisen from either misleading statements, or simply (in its best light) from poor communication between the parties. As noted above, very shortly after the Respondent obtained the registration of the disputed domain name, it then made demands to the Complainant for lack of payment. That is, the evidence demonstrates that, having obtained the registration of the disputed domain name, without authorization of the Complainant, the Respondent then sought to pursue its broader dispute. The registration and use of the disputed domain name in these circumstances does not demonstrate a good faith registration and use by the Respondent, for the purpose of the Policy. This is so, even if the Respondent has a legitimate dispute with the Complainant – which is not a matter on which the Panel can or should make a finding for the purpose of this dispute under the Policy.

The Complainant has therefore established its case under 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, <newton21.com> be transferred to the Complainant.

James A. Barker
Sole Panelist

Dated: April 11, 2008