7th Sep 2000

 
   

 

ADMINISTRATIVE PANEL DECISION

Under the ICANN Uniform Domain Name Dispute Resolution

   
 

Complainant:

Bürgernetzverein Bamberg e.V.

Respondent:

Mr. Marcel Stenzel

Cases Numbers:

AF-0267a;
AF-0267b

Contested Domain Names:

AF-0267a: bamberg.com ;
AF-0267b: bamberg.net

Panel Members:

Mr. David G. Allsebrook, President, Mr. David E. Sorkin, Mr. James Jude Bridgeman

   
 

 

  1. Parties and Contested Domain Name

The complainant Bürgernetzverein Bamberg e.V. is an association whose members are the citizens of Bamberg and the country with the City of Bamberg, Germany, as a main-member.

The respondent, Mr. Marcel Stenzel, is an individual resident in the United States of America. The domain name registrations in dispute are bamberg.com & bamberg.net. The complainant requests that the domain names be transferred to it.

  1. Procedural History

The electronic version of the Complaint form was filed on-line through eResolution’s Website on June 26, 2000. The hardcopy of the Complaint Form was received by eResolution on July 11, 2000. Payment was received on July 6, 2000. The choice of jurisdiction was received on July 10, 2000.

Upon receiving all the required information, eResolution’s clerk proceeded to:

– Confirm the identity of the Registrar for the contested Domain Name;

– Verify the Registrar’s Whois Database and confirm all the required contact information for Respondent;

– Verify if the contested Domain Name resolved to an active Web page;

– Verify if the Complaint was administratively compliant.

The inquiry lead the Clerk’s Office of eResolution to the following conclusions: the Registrar is the Nameit Corporation, the Whois database contains all the required contact information but the billing, the technical, and the zone contacts, the contested Domain Name resolves to an active Web page and the Complaint is administratively compliant.

An email was sent to the Registrar by eResolution Clerk’s Office to confirm the name of the said contacts and to obtain a copy of the Registration Agreement on June 27, 2000. The requested information was received July 11, 2000.

The Clerk’s Office then proceeded to send a copy of the Complaint Form and the required Cover Sheet to the Respondent on July 12, 2000. On July 12, 2000, the Clerk’s Office notified the Complainant, the Respondent, the concerned Registrar, and ICANN of the date of commencement of the administrative proceeding (July 12, 2000).

On July 31, 2000, the Respondent submitted, via email, his response. It was posted online by the Clerk’s Office on August 1, 2000. The signed version of the response was received on August 7, 2000. The Respondent requested a three-member panel. The Respondent’s applicable fees for the three-member panel were received on August 1, 2000.

On August 1, 2000, the Clerk’s Office requested the additional applicable fees from the Complainant, along with a list of three candidates to serve as one. On August 3, 2000, the list was received. On August 9, 2000, the additional fees were received.

On August 9, 2000, the Clerk’s Office contacted M. David G. Allsebrook, and requested that he act as panelist in this case.

On August 10, 2000, M. David G. Allsebrook, accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.

On August 9, 2000, the Clerk’s Office contacted M. David Sorkin, and requested that he act as panelist in this case.

On the same day, M. David Sorkin accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.

On August 21, 2000, the Parties where requested to rank five panelists according to their preferences. The Complainant’s list was received on August 22, 2000 and the Respondent’s list was received on August 23, 2000.

On August 24, the Clerk’s Office contacted M. James Jude Bridgeman and requested that he act as panelist in this case.

On August 24, 2000, M. James Jude Bridgeman, accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.

On August 24, 2000, the Clerk’s Office forwarded a user name and a password to each panelist, allowing them to access the Complaint Form, the Response Form, and the evidence through eResolution’s Automated Docket Management System.

On August 24, 2000, the parties were notified that the Panel had been appointed and that a decision was to be, save exceptional circumstances, handed down on September 6, 2000.

  1. Factual Background

The City of Bamberg has used the name for five years. The Complainant is an association, the members of which are the citizens of Bamberg with the City as a main-member.

The Complainant states that it wants to use the www site for www sites for the citizens of the city and to make the domain name available for industries and shops in the city.

As of the date of the filing of the Complaint, the Respondent had not established any www site of any substance, accessible via either of the domain names in dispute. He claims however that he is planning to launch www sites at both and “to provide a platform for information related to Bamberg.” This Administrative Panel takes this to mean the information relating to the City of Bamberg. No evidence substantiating the existence of such a plan was filed.

  1. Parties’ Contentions

The Complainant’s contentions are reproduced below:

The Complainant argues that the Respondent “grabbed this domain name and wants to sell it.” The Complainant submitted that the Respondent answered their email and wanted to sell the domains for 6.500 and 10.000 DEM” They state:” This is his offer: ———————— From: “Marcel Stenzel” To: Subject: RE: bamberg.net Date sent: Sat, 16 Oct 1999 15:53:45 -0700 Hallo Herr Burkard, Wir waeren bereit bamberg.org zu DM 5000 und/oder bamberg.net zu DM 8000 zu verkaufen falls Sie uns auf der jeweiligen Homepage eine “Link-berechtigung” einraeumen (Groesse siehe Anhang). Falls Sie uns keine “Link-berechtigung” einraeumen wollen, erhoeht sich der Preis um DM 1500 (.org) oder DM 2000 (.net). Mit freundlichen Gruessen Marcel A. Stenzel 1837 Canyon Drive Pinole, CA 94564 USA Tel: 510-724-4421 Fax: 510-724-4031 PS.: Ich bin zwischen 19.10 und 26.10 nicht erreichbar. ————————— “

[The panel has translated this message as follows :

“Hello Mr. Burkard, we are prepared to sell bamberg.org for DM 5,000 and/or bamberg.net for DM 8,000 provided that under each homepage you grant us a “right to link” (for the size see the schedule). In the event that you are not prepared to grant us a “right to link”, then the price would be raised by DM 1,500 re (.org) or DM 2,000 re (.net).

Kind Regards,

Marcel A. Stenzel
1837 Canyon Drive
Pinole, CA 
94564 USA
Tel: 510-724-4421 
Fax: 510-724-4031

P.S.: I cannot be reached between October 19th and October 26th.]”

The Complainant alleges that the Complainant tried to agree an acceptable price on different occasions, but the Respondent answered that he was not interested in selling any cheaper. The Complainant also alleges that the Respondent has not put these domain names to any substantive use and has only established a www page stating “Welcome to our future website”.

In response, the Respondent states that the Complainant is using the word Bamberg as a geographic indication. He advises that he is planning to launch www sites at both bamberg.com and bamberg.net to provide a platform for information related to Bamberg.

The Respondent says that he did not register the domain names to sell them to Complainant, nor did he offer to sell the domain names to any party. His reply to the Complainant as to the amount he would accept to sell the domain names was in response to Complainant’s inquiry requesting a price at which Respondent would consider selling the domain names.

The Complainant contents that the Respondent has no real intention of using the domain names but merely hopes to sell them.

The Respondent filed concise submissions as to the law, citing several arbitration decisions under the UDRP as authority for his contentions.

The alleges that the Complainant owns no trade mark or service mark, that geographic names in any event are not protected by the Uniform Dispute Resolution Policy. In this regard the Respondent refers to the reasoning in the decision Frank Wagner & Son v. Cindy Mahan a/k/a Cindy Maham, [WIPO Case No. D2000-026, June 14, 2000, http://arbiter.wipo.int/domains/decisions/html/d2000-0261.html] and submits that the Complainant’s failure to allege trademark or service mark ownership is fatal to Complainant’s claim under the Policy. He further refers to the decision in Gordon Sumner, p/k/a Sting v Michael Urvan, [WIPO Case No. D2000-0596, July 20, 2000, http://arbiter.wipo.int/domains/decisions/html/d2000-0596.html] to support this argument.

The Respondent further claims that his alleged plan to use the domain names established his legitimate interest in them. In this regard, the Respondent submits that he is planning to launch www sites at both bamberg.com and bamberg.net to provide a platform for information related to Bamberg. This Administrative Panel takes this to mean information relating to the City of Bamberg referred to by the Complainant.

The Respondent further submits that while Complainant alleges that Respondent “wanted to sell the domains,” this does not constitute evidence of a lack of legitimate interest in the domain name, since Respondent says he had a plan for legitimate use of the domain names prior to being contacted by Complainant. The respondent states that the existence of such a plan establishes Respondent’s legitimate interest in the domain names. In this regard the Respondent refers to the decision in Pacific Place Holdings, Ltd. v. Greenwood, [ WIPO Case No. D2000-0089, April 3, 2000, http://arbiter.wipo.int/domains/decisions/html/d2000-0089.html] in which he submits it was decided that a legitimate interest in the domain name in issue was supported by, inter alia, statements by the domain name holder that he had “planned” for a future use of the site as a business) and the decision inShirmax Retail Ltd. v. CES Marketing, Inc., [e-Resolution Case No. AF-0104, March 20, 2000, http://www.eresolution.org/services/dnd/decisions/0104.html] in which the Respondent submits it was found that the Respondent could establish a legitimate interest in the name merely by engaging in “perfunctory preparations” to use the disputed name. Accordingly, the Complaint must be dismissed due to Complainants failure to satisfy this element of the Policy.

The Respondent denies the allegation that he has registered and is using the said domain names in bad faith. The Respondent submits that he did not intend or offer to sell the domain names to anyone until he responded to an inquiry from the Complainant. He submits that engaging in such negotiations are not in themselves sufficient to establish the third element of the test.

In support of this submission the Respondent refers to Pacific Place Holdings, Ltd. v. Greenwood, [WIPO Case No. D2000-0089, April 3, 2000] in which he submits the Administrative Panel decided that a response to a purchaser inquiry did not to constitute evidence of bad faith under the Policy. The Respondent submits that in Pacific Place, the Complainant, which owned a trademark Pacific Place inquired if Respondent would sell the domain name pacificplace.com, and Respondent agreed to do so for $1,500. The Panel ruled in favor of Respondent, holding that the fact that, when approached by someone on behalf of the Complainant, [Respondent] was agreeable to selling the domain for $1,500 is not evidence that [Respondent] registered the domain name primarily for the purpose of selling it to the Complainant (see paragraph 4(b)(i) of the Policy).

  1. Discussion and Findings

To invoke the protection of the policy a 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 registrant has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

The panel finds that the Complainant has not alleged or shown that it owns or uses or has any rights whatsoever in any trade mark or service mark. There is no explanation, for example, of why the complaint was filed by the association rather than by the City of Bamberg.

The panel expresses no opinion on the other issues or evidence raised by the complaint. The evidence filed by both parties omitted a good deal of information which would have been useful to the panel in deciding the issues raised by the proceeding.

  1. Conclusions

The complaint is dismissed for the reasons given above.

  1. Signatures

September 5, 2000 at Toronto, Canada

(s) Mr. David G. Allsebrook

President

September 7, 2000 at Chicago, United States of America

(s) Mr. David E. Sorkin

September 7, 2000 at Dublin, Ireland

(s) Mr. James Jude Bridgeman