Britannia Building Society v. Britannia Fraud Prevention

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE

PANEL DECISION

Britannia

Building Society v. Britannia Fraud Prevention

Case No.

D2001-0505

1. The Parties

The Complainant is Britannia

Building Society, a British financial organization whose principal place of

business is in Leek, Staffordshire, U.K. Complainant is represented in this

matter by Hammond Suddards Edge.

The Respondent describes

itself as "the part owners of the mutual known as Britannia Building Society

who are known collectively as Britannia Fraud Prevention," Postbus 92,

Sluis, Zealand 4524 ZH, Netherlands. Respondent proceeds pro se.

2. The Domain Name and

Registrar

The domain name at issue

is <britanniabuildingsociety.org> (the "Domain Name"). The Domain

Name is registered with Tucows.com, Inc. (the "Registrar").

3. Procedural Background

Complainant filed its Complaint

by email on April 5, 2001, and in hardcopy on April 6, 2001. On April 12, 2001,

the WIPO Arbitration and Mediation Center (the "Center") sent a Request

for Verification to the Registrar requesting verification of registration data;

on April 17, 2001, the Registrar confirmed, inter alia, that it is the

registrar of the Domain Name and that the Domain Name is registered in the Respondent's

name.

Because of deficiencies

noted by the Center, Complainant filed two amended complaints. The First Amended

Complaint was received by e-mail on April 12, 2001 and in hardcopy on April

18, 2001. The Second Amended Complaint was received by email by the Center on

May 1, 2001, and in hardcopy on May 7, 2001. After verifying that the Second

Amended Complaint satisfies the formal requirements of the ICANN Uniform Domain

Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform

Domain Name Dispute Resolution Policy (the "Rules"), and the Supplemental

Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental

Rules"), the Center formally commenced this proceeding on May 8, 2001.

Respondent was notified

that its Response would be due by May 27, 2001. A series of emails between Respondent

and the Center followed, concluding in a May 28, 2001 email from the Center

warning Respondent that, if a Response was not received by the end of that day,

a Notification of Respondent Default would be issued. The Respondent filed the

Response by email later that day. Neither party requested a three-member panel.

The Center proceeded to

appoint a Panel comprised of Sir Ian Barker, a New Zealand Judge, as sole panelist.

Respondent informed the Center that it "object[ed]" to the appointment

of the Panelist "on the grounds of conflict of interest and bias"

and "pursuant to Human Rights Act [sic]," and argued that it was,

"inconceivable that [Complainant’s Solicitors] Hammond Suddards tentacles

do not reach into Sir Ian's interests." Respondent further asserted that,

as a member of the judiciary, Sir Ian would be biased against Respondent because

he likely "would prefer not to expose lawyers to publicity for misconduct."

Sir Ian and the Center firmly rejected Respondent’s allegations of bias. Nevertheless,

for unrelated reasons, Sir Ian elected to withdraw as Panelist.

On June 14, 2001, the Center

appointed David H. Bernstein as substitute Panelist. Respondent moved to have

Mr. Bernstein disqualified as well, arguing that he, too, is biased against

Respondent. In the alternative, Respondent requested that Mr. Bernstein recuse

himself and that the Center instead appoint a Panelist "who is not entrenched

as a corporate lawyer" and is not a member of the judiciary.

4. The Motions To Disqualify

and To Recuse

A. Framework Under

the Policy

The procedures for appointment

of a Panel are defined by the Rules, which themselves were promulgated by ICANN.

The Rules require approved providers of dispute resolution services (including

the Center) to "maintain and publish a publicly available list of panelists

and their qualifications." Rule 6(a). Upon receiving a satisfactory complaint,

and provided that neither party requests a three-member panel, the Provider

"shall appoint . . . a single Panelist from its list of panelists."

Rule 6(b) (Footnote 1).

The Rules do provide some

limitation on the providers’ authority to appoint a panelist. In particular,

Rule 7 mandates that any appointed panelist

"shall be impartial

and independent and shall have, before accepting appointment, disclosed to the

Provider any circumstances giving rise to justifiable doubt as to the Panelist's

impartiality or independence. If, at any stage during the administrative proceeding,

new circumstances arise that could give rise to justifiable doubt as to the

impartiality or independence of the Panelist, that Panelist shall promptly disclose

such circumstances to the Provider. In such event, the Provider shall have the

discretion to appoint a substitute Panelist".

Neither the Policy nor

the Rules explicitly creates a procedure through which a party can raise concerns

about the suitability of a designated panelist. Rule 8 does, however, contemplate

that a party may seek to communicate with a panel through the provider or with

the provider itself. More importantly, it is critical that a mechanism be provided

to ensure compliance with Rule 7, and also with the prescription of Rule 10(b)

that all parties be treated with equality and be given a fair opportunity to

present their case. Accordingly, this Panel finds it appropriate for a party

with concerns about a panelist’s impartiality to communicate with the provider

in order to raise any such concerns and to seek a prompt and fair resolution.

In the event the provider declines to disqualify the panelist, it is equally

appropriate for the party to move for the panelist’s recusal.

B. Respondent’s Allegations

Respondent does not dispute

that Mr. Bernstein was on the publicly available list of panelists published

by the Center as required by Rule 6(a), or that he submitted the Declaration

of Independence and Impartiality required by Supplemental Rule 8 (Footnote

2). Nor does it question his qualifications or allege that he

failed to disclose to the Center facts that could raise doubts about his impartiality

and independence. Rather, Respondent seeks to have Mr. Bernstein disqualified,

or seeks to have him recuse himself, because of intimations of bias or an appearance

or partiality arising from his status as a practicing attorney with an international

law firm.

The alleged bias is twofold.

First, Respondent claims that Mr. Bernstein has an unspecified connection to

London, presumably because his law firm, Debevoise & Plimpton, maintains

an office there and/or because Mr. Bernstein holds a master’s degree from the

London School of Economics and Political Science. London is widely recognized

as the financial capitol of the United Kingdom, the country in which Complainant

primarily operates, and Respondent’s position appears to be that anyone with

any connection to London is per se biased. Second, Respondent argues

that Mr. Bernstein is a "corporate lawyer," and that, given the circumstances

of this case, such status is per se grounds for disqualification or recusal

because "[n]o corporate lawyer is going to enjoy permitting a web site

operator to publish justified material exposing corporate lawyers for criminal

conduct that they thought would never be exposed." As Respondent further

explains in its Response:

"The Respondent []

objects, and believes that a conflict exists, for any individual adjudicating

this case who may be involved as a solicitor, lawyer, advocate, Counsel or Judge

or in any way involved in the legal system. The stakes are high in this case

for the lawyers and their purported clients".

C. Analysis

Respondent argues that

the Center should have disqualified Mr. Bernstein for bias. The Rules provide

for disqualification when there is "justifiable doubt as to the Panelist's

impartiality or independence." Rule 7. Decisions regarding recusal or disqualification

are left in the first instance to the Panelist, who must resolve any such issues

prior to executing a Declaration of Independence and Impartiality, and thereafter

to the discretion of the Provider. Id.

In this case, the Center

has ruled on Respondent’s request. On June 18, 2001, the Center sent the following

email to the parties:

"The Center acknowledges

receipt of the Respondent's e-mail communication of June 15, 2001, in which

the Respondent objects to the appointment of Mr. David H. Bernstein in this

case, asserting that "the tentacles of Hammond Suddards Edge are far reaching

and Mr. Bernstein has connections with London and is a corporate lawyer.

The Center finds the objections

presented by the Respondent not valid. Accordingly, this case will proceed with

Mr. David H. Bernstein as the Panelist".

The Panel has now reviewed

the Center’s determination and agrees that neither disqualification nor recusal

is appropriate. As a threshold matter, the Panel notes that unsubstantiated

allegations of bias are not sufficient to warrant disqualification or recusal.

Rather, a party challenging a panelist’s appointment must present specific evidence

showing that a panelist may be biased. Moreover, it is not sufficient if such

evidence creates some hint, insinuation or innuendo of doubt; rather the evidence

must show "justifiable doubt" -- that is, that a reasonable, objective

person would be justified in doubting the panelist’s impartiality after consideration

of the proffered evidence.

Although the Rules do not

provide specific examples of circumstances that might give rise to recusal and

the Panel is not aware of any UDRP decisions that have addressed these issues,

similar issues have been considered by courts for many years in connection with

judicial assignments. Drawing on these authorities, the Panel finds that justifiable

doubt as to a panelist’s impartiality or independence may arise, inter alia,

if the panelist has demonstrated personal bias for or against one of the parties,

possesses a financial interest in the outcome of the dispute, or represents

or has represented one of the parties or a third party in a dispute with one

of the parties. In these circumstances, although a panelist may believe that

he or she could rule impartially, the panelist should, at the bare minimum,

fully disclose the circumstances so that the provider can consider whether there

is justifiable doubt, and the parties can be heard on any objections they may

have.

None of Respondent’s allegations

can be fairly said to give rise to a "justifiable doubt" about Mr.

Bernstein’s impartiality and independence. The thrust of Respondent’s motion

is that a "corporate" lawyer cannot rule independently in a case in

which one of the parties is represented by counsel and the other party has made

allegations about that counsel on the website located at the domain name in

question. Respondent does not, however, make any particularized assertions about

the relationship between the Panelist and the firm of Hammonds Suddards Edge,

nor does Respondent explain how Mr. Bernstein’s connections to London are relevant

to this dispute. In short, Respondent has failed to identify any factual nexus

or rational connection between the Panelist and the matters in dispute.

The Panel also rejects

Respondent’s objection that the Center did not follow Respondent’s instructions

with respect to the appointment of a panelist. In its Response, Respondent stated

that it did not want the Center to appoint as a panelist "a solicitor,

lawyer, advocate, Counsel or Judge." The Center properly disregarded this

request. That is because the Rules do not give the parties any say in the appointment

of the panelist in a single-panelist case (Footnote

3). Rather, if a party seeks to have some influence over the

composition of the Panel, it may instead request a three-person panel, to which

each of the parties can nominate a panelist and can express its views on the

proposed presiding panelist. Rules 3(b)(iv), 5(b)(iv), 6(e). Utilizing this

procedure, a party can ensure that at least one of the panelists will meet its

criteria.

Respondent did not avail

itself of this procedure. It thus has no basis (absent justifiable doubt as

to the Panelist’s independence and impartiality) for complaining now about the

Center’s choice of Panelist.

5. Factual Background

Complainant is a financial

services organization governed by the United Kingdom’s Building Society Act

of 1986. It has approximately 1.25 million members and is well known throughout

the United Kingdom. All its trading operations, advertisements and promotions

are conducted under the name "Britannia Building Society." See

generally, Britannia Building Society v. Prangley (June 12, 2000; UK Chancery

Division; Raffee, J.).

Complainant holds a registration

for the mark "Britannia" in the United Kingdom. Its primary internet

address is <britannia.co.uk>. It is also the proprietor of the domain

names <britanniabuildingsociety.co.uk> and <britanniabuildingsociety.com>,

having recently acquired the latter through legal proceedings in the United

Kingdom. Id.

Respondent describes itself

as a collective of members of Complainant. Respondent registered the domain

name <britanniabuildingsociety.org> on May 11, 2000, and maintains a website

at that address that is highly critical of the practices of Complainant’s management.

6. Parties’ Contentions

A. Complainant

Complainant submits that

its mark is famous throughout the United Kingdom and is exclusively distinctive

of the Complainant. It further asserts that the "distinctive part of the

domain name britanniabuildingsociety, is (save for the absence of a space between

the three words) identical to the Complainant’s trading name," and that,

as such, it is "inconceivable that anyone typing the domain name into their

browser for the first time would not expect to access the Complainant’s website."

Complainant therefore asserts that the Domain Name is identical or confusingly

similar to a mark in which it has rights for purposes of paragraph 4(a)(i)

of the Policy.

Complainant further argues

that Respondent has "no legitimate rights to or interest in the Domain

name," as required by paragraph 4(a)(ii) of the Policy, and states

that it can "conceive of no manner in which the Domain Name could be used

in a legitimate manner by any person, company or organisation other than the

Complainant."

Finally, the Complainant

submits that the domain name has been registered in bad faith in order "to

exploit the Complainant’s rights in the name ‘Britannia Building Society’ in

an attempt to attract or divert internet users to the Respondent’s website for

the purpose of disrupting the Complainant’s business and in order to make unproven

allegations of criminal activity and potentially defamatory remarks." Complainant

accuses Respondent of registering the domain name in bad faith for purposes

of paragraph 4(a)(iii) because a person seeking information on Complainant’s

activities might "be drawn into the Respondent’s website and be exposed

to contrary and critical views."

B. Respondent

Respondent replies that

(1) Complainant lacks standing to bring this Complaint because it does not represent

the members of the Britannia Building Society under UK law; (2) Complainant

has no rights in the trademark "Britannia Building Society"; and (3)

Respondent has "every right" to the name "Britannia Building

Society" and is making legitimate use of the domain name to

"provide a facility

for [Britannia Building Society’s] co-owners to learn confidentially without

the threat of expulsion, censorship or theft of documents about unlawful acts

by the group who currently manage the mutual known as Britannia Building Society

incompetently and fraudulently for their own aims, procure appointees to cover

up that conduct, and retain a firm of solicitors ready willing and able to ignore

their fiduciary duties to the society per se for the benefit of the funds received

from those whose conduct they sustain".

Respondent further asserts

the Complainant is attempting a Reverse Domain Name Hijacking.

7. Discussion and Findings

The burden for the Complainant

under paragraph 4(a) of the ICANN Policy is to prove:

(i) That the domain

name registered by the Respondent is identical or confusingly similar to a trademark

or service mark in which the Complainant has rights; and

(ii) That the Respondent

has no rights or legitimate interests in respect of the domain name; and

(iii) The domain name

has been registered and used in bad faith.

A. Complainant Has

Standing.

Before turning to the merits,

the Panel must first address Respondent’s argument that Complainant lacks standing

because those pursuing the case in its name do not actually represent Britannia

Building Society.

Complainant has submitted

a certified Complaint in which it claims to be Britannia Building Society and

authorizes Hammond Suddards Edge to act on its behalf. See Rules 3(b)(ii),

(xiv). Alone, those assertions are sufficient to establish Complainant’s standing

absent persuasive proof submitted by Respondent that Complainant was not whom

it said it was or was not represented by Hammond Suddards Edge. Respondent’s

argument here, though, is not that Complainant or its counsel is an imposter,

but rather that the management of Britannia Building Society has no right to

pursue this case because it is being undertaken without the consent of all of

the Society’s members. Respondent’s standing objection thus appears to be part

of its broader dispute with Complainant over corporate control.

The legitimacy of corporate

actions is not an issue that can be resolved in a proceeding under the Policy.

If Respondent wishes to challenge the Complainant’s right to bring this (or

any other legal or other action), it should do so in a more appropriate forum.

Policy ¶ 5. For purposes of the Policy, it is sufficient that the parties

agree that Complainant represents the nominal management of Britannia Building

Society. The Panel therefore concludes that Complainant has standing to pursue

this action.

B. The Domain Name

is Confusingly Similar to Complainant’s Mark.

Respondent argues that

the domain name is not identical or confusingly similar to Complainant’s mark

because Complainant has no trademark rights in the phrase "Britannia Building

Society." According to the Respondent, under UK law, a mark including the

words "building society" cannot be registered because "building

society" is a regulatory term that can only be affixed to an entity by

the government.

Even if Complainant cannot

establish trademark rights in the entirety of the phrase "Britannia Building

Society" (an issue I need not reach), its rights in the registered mark

"Britannia" are alone sufficient to show confusing similarity under

the first prong. As numerous prior ICANN panels have recognized, the incorporation

of a trademark in its entirety is sufficient to establish that a domain name

is identical or confusingly similar to the complainant’s registered mark. See,

e.g., Quixtar Investments, Inc. v. Dennis Hoffman, Case

No. D2000-0253 (WIPO May 29, 2000) (finding that QUIXTAR and <quixtarmortgage.com>

are legally identical); Nikon, Inc. and Nikon Corporation v. Technilab,

Inc., Case No. D2000-1774 (WIPO Feb.

26, 2001) (incorporation of Nikon mark into domain name <nikondealers.com>

satisfies first prong of Policy). The addition of other terms in the domain

name does not affect a finding that the domain name is identical or confusingly

similar to the Complainant’s registered trademark Wal-Mart Stores, Inc. v.

Richard MacLeod d/b/a For Sale, Case No.

D2000-0662 (WIPO Sept. 19, 2000) (for purposes of the first prong of the

Policy, <wal-martsucks.com> is confusingly similar to Wal-Mart trademark).

Accordingly, Complainant has satisfied its burden under the first prong.

C. Respondent Has a

Legitimate Interest in Its Criticism Site.

Complainant has failed

to prove that Respondent lacks a legitimate interest in the Domain Name. In

particular, it has failed to prove that Respondent is not entitled to the protections

of paragraph 4(c)(iii) of the Policy, which provides that a Respondent has a

legitimate interest if it is

"making a legitimate

noncommercial or fair use of the domain name, without intent for commercial

gain to misleadingly divert consumers or to tarnish the trademark or service

mark at issue".

The Panel concludes that

Respondent is making a legitimate noncommercial use of the domain name because

Respondent maintains its website as a site critical of the policies of the management

of Britannia Building Society. See Bridgestone Firestone, Inc., Bridgestone/Firestone

Research, Inc., and Bridgestone Corporation v. Jack Myers, Case

No. D2000-0190 (WIPO July 6, 2000); Compusa Management Co. v. Customized

Computer Training, Case No. FA0006000095082 (NAF Aug. 17, 2000). Although

Complainant does allege that Respondent has registered and used the Domain Name

misleadingly to divert customers to its highly critical site, with the probable

intent of tarnishing the mark at issue, such allegations fail to undermine the

legitimacy of Respondent’s use.

The Respondent’s actions

cannot be characterized as consistent with an "intent for commercial gain

to misleadingly divert consumers." That phrase refers to the kind of confusion

that arises in a trademark infringement context, when a competitor diverts consumers

to its site and, potentially, diverts sales. See Universal City Studios,

Inc. v. G.A.B. Enterprises, Case No. D2000-0416

(WIPO June 29, 2000); Houghton Mifflin Company v. The Weathermen, Inc.,

Case No. D2001-0211 (WIPO Apr. 17, 2001). Here,

there is no diversion "for commercial gain" and thus no loss of legitimacy.

That some internet users might initially be confused into thinking that, because

of the use of the mark in the Domain Name, <britanniabuildingsociety.org>

is Complainant’s official web site is of no moment. First, any such confusion

would immediately be dispelled by Respondent’s prominent disclaimer and the

link that is displayed to Complainant’s official site. Second, and in any event,

such a low level of confusion is a price worth paying to preserve the free exchange

of ideas via the internet. A user who misleadingly stumbles upon Respondent’s

site while looking for Complainant’s official site need only click the "back"

button to return to her search, or the link helpfully provided by Respondent.

As for Complainant’s assertion

of "tarnishment," that phrase, too, has a specific meaning that does

not apply here. Tarnishment in this context refers to such unseemly conduct

as linking unrelated pornographic, violent or drug-related images or information

to an otherwise wholesome mark. See, e.g., Nicole Kidman v. John Zuccarini

d/b/a Cupcake Party, Case No. D2000-1415

(WIPO Jan. 23, 2001); cf. Etam, plc v. Alberta Hot Rods, Case

No. D2000-1654 (WIPO Jan. 31, 2001). In contrast, fair-use criticism, even

if libelous, does not constitute tarnishment and is not prohibited by the Policy,

the primary concern of which is cybersquatting. Cf. Wal-Mart Stores, Inc.

v. Richard MacLeod d/b/a For Sale, Case

No. D2000-0662 (WIPO Sept. 19, 2000) (protection for genuine criticism sites

is provided by Policy’s legitimate interest and bad faith prongs). Claims sounding

in commercial libel must be brought in other legal venues. Policy ¶ 5.

The web site Respondent

operates at the Domain Name is, and so far as the Panel can tell from the record

always has been, maintained as a genuine criticism site (Footnote

4). The goals of the Policy are limited and do not extend to

insulating trademark holders from contrary and critical views when such views

are legitimately expressed without an intention for commercial gain. Use of

the Policy to provide such insulation would radically undermine freedom of discourse

on the internet and would undercut the free and orderly exchange of ideas that

the Policy seeks to promote.

D. Respondent Has Not

Registered and Used the Domain Name in Bad Faith.

Complainant claims that

Respondent registered the domain name in bad faith for the purpose of disrupting

Complainant’s business, Policy ¶ 4(b)(iii), and that Respondent is making a

bad faith effort to attract internet users to its website by creating a likelihood

of confusion as to its source, Policy ¶ 4(b)(iv). Complainant’s arguments fail.

The Policy declares it

to be evidence of bad faith if a party has registered a website primarily "for

the purpose of disrupting the business of a competitor." Policy ¶ 4(b)(iii)

(emphasis added). The Panel acknowledges that other Panels have disagreed as

to the breadth of that phrase. Compare Mission KwaSizabantu v. Benjamin Rost,

Case No. D2000-0279 (WIPO June 7, 2000)

(holding that publisher of critical website was "competitor" of complainant

because "[t]he natural meaning of the word ‘competitor’ is one who acts

in opposition to another"), with Tribeca Film Center, Inc. v. Lorenzo

Brusasco-Mackenzie, Case No. D2000-1772

(WIPO April 10, 2001) (rejecting Mission KwaSizabantu approach and holding

that "a respondent can ‘disrupt[] the business of a competitor’ only if

it offers goods or services that can compete with or rival the goods or services

offered by the trademark owner"). This Panel reaffirms the holding

of Tribeca Film Center that a competitor for purposes of the Policy is

a person or entity in competition with a complainant for the provision of goods

or services, and not merely any person or entity with an interest oppositional

to that of a mark holder. To rule otherwise would render so many parties "competitors"

as to dilute the Policy’s bad faith requirement beyond recognition. Complainant

nowhere argues that Respondent is its "competitor" in the narrow sense

adopted here, and thus has failed to establish bad faith under this prong.

Complainant similarly fails

to prove a bad faith effort by Respondent intentionally to divert internet users

to its website by creating a likelihood of confusion with Complainant’s mark.

To the contrary, as noted above, Respondent goes to great lengths to dispel

any possible confusion about the source of the website, including a prominent

disclaimer at the top of the site and a link to Complainant’s actual site. This

conduct is paradigmatic of good faith, not bad.

E. Complainant is Not

Guilty of Reverse Domain Name Hijacking.

Respondent asks, without

elaboration, for a declaration that Complainant is engaging in Reverse Domain

Name Hijacking. Such a finding requires a showing of bad faith. See Rule

1. Although Complainant has failed to justify relief under the Policy, there

is no evidence that its claim was brought in bad faith. The Domain Name is identical

to a mark in which Complainant holds rights, and Complainant may have been misled

by some prior Panel decisions that erroneously found that a bona fide criticism

site does not constitute a legitimate, good faith use of a domain name. See¸

e.g., Mission KwaSizabantu v. Benjamin Rost, Case

No. D2000-0279 (WIPO June 7, 2000); Quirk Nissan, Inc. v. Maccini,

Case No. FA00060000 94959 (NAF June 29, 2000); Monty and Pat Roberts, Inc.

v. J. Bartell, Case No. D2000-0300

(WIPO May 8, 2000) (Footnote 5). Thus

the Complaint was not so far outside the bounds of plausibility as to constitute

a bad faith or harassing attack on Respondent’s registration of the Domain Name.

Moreover, the concept of

Reverse Domain Name Hijacking is itself an equitable remedy. In order to demonstrate

that the equities do, in fact, weigh in its favor, a party typically must itself

follow and respect the rules of the tribunal and otherwise act equitably. Respondent

here has not. Despite clear instructions in repeated emails from the Center,

Respondent engaged in a series of harassing emails and violations of the Rules,

including Rules 2(h)(iii), 5(b)(ii) and 8. In light of Respondent’s behavior

in this proceeding, it is not entitled to the equitable remedy of a finding

of Reverse Domain Name Hijacking.

F. Conclusion.

This Panel has previously

remarked that "[t]he ‘legitimate interest’ and ‘bad faith’ factors should

adequately insulate true protest sites from vulnerability under the Policy."

Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, Case

No. D2000-0662 (WIPO, Sept. 19, 2000). The present case proves that contention

to be true. Respondent is using the domain name in question to maintain a site

that is highly critical of Complainant, Complainant’s practices and Complainant’s

solicitors. Whatever other legal liabilities Respondent’s activities may eventually

impose upon it – and the parties trade accusations with gusto – Complainant

has not borne its burden of demonstrating that relief under the Policy is warranted.

A genuine criticism site, undertaken by its proprietors with no intent other

than to protest, ridicule and mock its targets, does not fall astray of the

dictates of the Policy, regardless of the outrageousness of the allegations

it contains or the vigorousness with which they are made.

8. Decision

Because Complainant has

failed to prove that Respondent lacks a legitimate interest or has registered

and used the domain name in bad faith, the Panel declines to order transfer

of the Domain Name.

David H.

Bernstein

Sole Panelist

Dated: July

6, 2001

Footnotes:

1. If either party does

request a three-member panel, then, after payment of the applicable fee, each

party may nominate up to three panelists from any approved provider’s list.

The Center must then endeavor to appoint a Panel including one of each of the

parties’ nominees; the Center itself selects the presiding panelist based on

the parties’ preferences in response to a list of five proposed panelists nominated

by the Center. Rule 6(e). (back to text)

2. The Center’s Supplemental

Rules require that prospective panelists complete and submit a "Statement

of Acceptance and Declaration of Impartiality and Independence." In completing

this Declaration, Mr. Bernstein verified: "I am independent of each [of]

the parties. To the best of my knowledge and belief, there are no facts or circumstances,

past or present, or that could arise in the foreseeable future, that need be

disclosed as they might be of such a nature as to call [into] question my independence

in the eyes of one or both of the parties." (back to text)

3. Respondent, as the Registrant

of the Domain Name, specifically agreed in its registration agreement with Tucows.com,

Inc. to be bound by the terms of the Policy and to submit to mandatory administrative

proceedings under the Rules. Respondent is thus bound to follow the Rules. (back

to text)

4. Where, however, a criticism

site is used as a pretext for cybersquatting, the Policy would not protect such

conduct. See, e.g., Rolex Watch U.S.A., Inc. v. Spider Webs, Ltd.,

Case No. D2001-0398 (WIPO July 2, 2001). That

does not appear to be the case here, and Complainant does not so allege. (back

to text)

5. This Panel recognizes

that, where a consensus view has developed, it is incumbent upon the Panel to

follow that consensus to promote consistent application of the Policy. See

Nikon, Inc. and Nikon Corporation v. Technilab, Inc., Case

No. D2000-1774 (WIPO Feb. 26, 2001), n.3. On the contentious issue of fair

use and criticism sites, no such consensus has yet emerged. This Panel has carefully

considered the reasoning in KwaSizabantu, Quirk Nissan and Monty

Roberts, but finds them unpersuasive and inconsistent with the dictates

of the Policy. (back to text)