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    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)


     
    This discussion has been archived. No new comments can be posted.
    What's in .NAME? 5000+ .NAME Registrations Not Conforming to .NAME Restrictions | Log in/Create an Account | Top | 185 comments | Search Discussion
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    Further Case Notes and Recently Updated Response
    by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Wednesday June 12 2002, @04:00AM (#7107)
    User #3359 Info | http://www.ad2000d.co.uk/
    MY RESPONSE



    America Online, Inc.
    Dulles,
    Virginia,
    USA

    (Complainant)

    v.

    Adrian Paul Miles
    Wolverhampton,
    England,
    UK

    (Respondent)

    Domain Names In Dispute:

    aim5.com
    aolcybercafe.com
    aolinternetcafe.com
    aolnetcafe.com

    Case Number:

    FA 0203 000 105 890

    RESPONSE

    [1.] Respondent received a Notification of Complaint and Commencement of Administrative Proceeding on March 18, 2002. The Notification stated that Complainant had submitted a
    Complaint for decision in accordance with the Uniform Domain Name Dispute Resolution
    Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on
    August 26, 1999 and approved by ICANN on October 24, 1999 (ICANN Policy), and the Rules for Uniform Domain Name Dispute Resolution Policy (ICANN Rules), adopted by ICANN on August 26, 1999 and approved by ICANN on October 24, 1999, and the National Arbitration Forum (NAF) Supplemental Rules (Supp. Rules).

    [2.] RESPONDENT INFORMATION

    [a.] Name: Adrian Paul Miles

    [b.] Address: ANNO DOMINI 2000 c/o 78 Bright Street, Whitmore Reans,
    WOLVERHAMPTON WV1 4AS, England, UK

    [c.] Telephone: 01902 424 371 Ext 2

    [d.] Fax: n/a

    [e.] E-Mail: ad2000d@yahoo.co.uk

    The Respondentís preferred method for communications directed to the Respondent in the administrative proceeding:

    Electronic-Only Material

    [a.] Method: e-mail

    [b.] Address: ad2000d@yahoo.co.uk

    [c.] Contact: Adrian Paul Miles o/as ANNO DOMINI 2000

    Material Including Hard Copy

    [a.] Method: post

    [b.] Address/Fax: (as above)

    [c.] Contact: Adrian Paul Miles o/as ANNO DOMINI 2000

    The Respondent chooses to have this dispute heard before a three (3)-member panel, even
    though the Complainant has chosen a single (1)-member panel.

    The Respondent is therefore providing the names and contact details of three (3) candidates
    from any ICANN-approved Providerís list of panelists to serve as one (1) of the panelists and is also submitting the appropriate fee required for this application.

    [3.] RESPONSE TO FACTUAL AND LEGAL ALLEGATIONS MADE IN COMPLAINT

    This Response specifically responds to the statements and allegations contained in the
    Complaint and includes any and all bases for the Respondent to retain registration and use of
    the disputed domain name.

    [a.] The single disputed domain name ("AIM5.COM") is not identical nor, the Respondent maintains, is it confusingly similar to a trademark or service mark in which the Complainant
    has rights.

    Whilst it is accepted that the "AIM" is a registered and active trademark of the Complainant,
    this does not preclude others using this phrase within a domain name. Indeed, many thousands already do so, the vast majority of which are without complaint (see Appendix.)

    "AIM5" is clearly not identical to "AIM".

    Whether "AIM5" is confusingly similar to the "AIM" trademark is highly debateable and not,
    the Respondent submits, a matter for an Arbitration Panel to decide.

    The Respondent wishes the Panel to know that they have received not one single complaint or negative comment, either written or verbal, regarding "confusion" as to the domain being
    "similar" to the Complainant's use of either "AIM.COM" or "AOL.COM/AIM."

    Plainly, internet users and customers of the Complainant are not "confused" or misled in any
    way by the Respondent's use of their "AIM5" website ("AIM5.COM.")

    The Respondent submits that their use of "AIM5" within a domain name is a matter much better suited to the legal expertise and jurisdiction of the law courts of England and the USA,
    particularly given the Respondent's current location.

    [b] Applicable Disputes

    (i) your domain name is identical or confusingly similar to a trademark or service mark in
    which the complainant has rights;

    NO; The Respondent accepts this is debateable. However, the lack of evidence otherwise
    clearly shows this not to be the case.

    AND

    (ii) you have no rights or legitimate interests in respect of the domain name;

    NO

    AND

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

    NO

    In the administrative proceeding, the complainant must prove that each of these three elements are present.

    [c.] Evidence of Registration and Use in Bad Faith.

    The following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

    (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name
    registration to the complainant who is the owner of the trademark or service mark or to a
    competitor of that complainant, for valuable consideration in excess of your documented
    out-of-pocket costs directly related to the domain name;

    NO

    or

    (ii) you have registered the domain name in order to prevent the owner of the trademark or
    service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct;

    NO

    or

    (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor;

    NO

    or

    (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

    NO; the Respondent is also a registered Affiliate of the Complainant.

    [d] Demonstration of Respondent's Rights to, and Legitimate Interests in, the Domain Name in Responding to the Complaint.

    Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate the
    Respondent's rights or legitimate interests to the contested domain name.

    (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona-fide offering of goods or services;

    YES

    or

    (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights;

    YES; to some extent this is true, as the Respondent's "AIM5.COM" website has been operating as a non-profit consumer information and support site for well over two years now.

    or

    (iii) you are 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.

    YES; the Respondent is also a registered Affiliate of the Complainant.

    [4.] OTHER LEGAL PROCEEDINGS

    As previously notified in the Respondent's ERDRP Response, possible proceeding against the Complainant are currently being held in limbo by the Respondent, until conclusion of both this UDRP case, as commenced March 18, 2002, and the ERDRP case commenced on April 5, 2002, and responded to shortly thereafter on April 23, 2002, before the corresponding
    deadline of April 25, 2002.

    [5.] RESPONSE TRANSMISSION

    The Respondent asserts that a copy of the Response has been sent or transmitted to the
    Complainant.

    [6.] The Respondent respectfully requests that the Administrative Panel denies the remedy requested by the Complainant.

    The Rules provide that the Respondent may ask the Panel to make a finding of reverse domain-name hijacking. This is plainly appropriate in this case.

    This allegation is substantiated with evidence.

    ICANN UDRP RULES REGARDING HARASSMENT AND REVERSE DOMAIN-NAME HIJACKING

    3. THE COMPLAINT

    (b)

    (xiv) "Complainant certifies... this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument."

    The Respondent maintains, with evidence, the Complainant in this particular case has indeed
    sought "to harass" the Respondent for an "improper purpose", namely, bringing two needless
    cases before the National Arbitration Forum, without good cause nor "good faith", other than
    "to harass" and intimidate the Respondent into giving up the contested domain names in each
    case (see Appendix for relevant correspondence.)

    The Respondent has not only been evidenced to have been made extremely ill by the
    Complainant's repeated and spurious claims, they have been made effectively bankrupt in the process, due to the time, energy and expense involved in responding to each of these claims.

    15. PANEL DECISIONS

    (e) "If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint
    was brought in bad faith and constitutes an abuse of the administrative proceeding."

    The Respondent maintains the Panel should feel compelled to find the above statement true.

    The Respondent trusts the Panel will make their decision accordingly.

    [7.] CERTIFICATION

    Respondent certifies that the information contained in this Response is to the best of
    Respondentís knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.

    Respectfully Submitted,
    ___________________

    [Signature]
    ___________________

    [Name]
    ___________________

    [Date]

    Annex

    APPENDIX INDEX

    (part 1):

    Respondent's Prior Offers to Transfer three of the four Disputed Domain Names Free of Charge then at Cost to the Complainant

    (part 2):

    RESPONDENT'S LONG-TERM OWNERSHIP OF "AIM5.COM"

    (part 3 a):

    Domain names including the letters "AIM"

    (part 3 b):

    Domain names including the letters "AIM"

    (part 3 c):

    Domain names including the letters "AIM"

    (part 4):

    "AIM 4 PERFECTION" PRIOR DOMAIN NAME REGISTRATION

    (part 5):

    FINAL RECONCILIATORY OFFER BY RESPONDENT TO SETTLE SHORTLY AFTER RECEIVING NOTICE OF UDRP ARBITRATION PROCEEDINGS INITIATED BY COMPLAINANT

    (part 6):

    ADY'S INSTANT MESSAGING SERVICE INITIALLY REGISTERED DOMAIN NAMES

    (part 7):

    MEDICAL AND BENEFIT SUPPORT RECEIPT EVIDENCE

    (a) LETTER FROM RESPONDENT'S GENERAL PRACTITIONER ( DOCTOR )

    (b) LETTER FROM RESPONDENT'S PSYCHOTHERAPY UNIT CLINIC ( STRESS MANAGEMENT )

    (c) LETTER FROM DEPARTMENT OF HEALTH AND SOCIAL SECURITY ( DSS )

    (part 8):

    RESPONDENT'S KEY WEBSITE SCREEN SHOTS ( 1 - 14 )

    (part 9):

    RESPONDENT'S WEBSITE AFFILIATION TO COMPLAINANT

    (part 10):

    RESPONDENT PANELIST LIST

    (part 11):

    RESPONSE TO COMPLAINANT'S REFERENCE TO PRIOR CASE

    (part 12):

    FTC COMPLAINT RESPONSE REGARDING COMPLAINANT'S HARASSMENT

    The Respondent has requested a three (3) member panel, therefore the Respondent has
    submitted five (5) copies of the Response, including annexed material, to the National
    Arbitration Forum, and one (1) copy to the Complainant's Representative, as requested in Complainant's claim.



    THE PANEL'S DECISION



    The UDRP Case Panel's Decision is due to be published on or before
    Thursday, June 6th, 2002



    TO WHOM IT MAY CONCERN -


    RE AMERICA ONLINE (USA), INC.
    V
    ADRIAN PAUL MILES o/as AD 2000 D . COM
    (ANNO DOMINI 2000 DOMAINS)



    This so-called UDRP Decision is fundamentally flawed, inaccurate, biased and factually incorrect in so many ways it is unbelievable.

    The Panel's refusal to accept valid submissions paid for and provided within the required time limits is irregular, unfair and unacceptable.

    There are so many errors of fact and meaningless or contradictory statements in this Decision that we feel we have other choice than to refuse to accept the Panel's Decision.

    The Decision is clearly invalid in that:

    (i) The Panel or the Forum themselves clearly leaked details of the Case and the Full Decision and Determination to the news agencies and other interested organisations.

    (ii) The Panel clearly and evidently has not made the Decision based upon the evidence available, as the Rules dictate.

    ICANN Rules for Uniform Domain Name Dispute
    Resolution Policy (the "Rules"), Section 5.

    The Response

    5(b) The response shall be submitted in hard copy and (except to the extent not available for annexes) in electronic form

    The Respondent sent both his Response AND his Appendices IN ELECTRONIC FORM - THE SAME DAY he also sent his Response IN ELECTRONIC FORM before the Extended Response Deadline of April 29, 2002. The Respondent has kept duplicates of ALL ELECTRONIC MAIL they sent at this time. Indeed, they have kept copies of ALL correspondence related to this case. The Respondent also sent this by expedited international post. Upon request of the Forum's Case Administrator, although not obligated to do so, he also paid a further fee of $250 to submit these Appendices IN HARD COPY in the form of a Supplemental Submission to both the Forum and the Complainant. The Deadline for
    this resending of the Respondent's Appendices IN HARD COPY was May 6, 2002.
    As the Panel have clearly stated, the Respondent graciously re-supplied their
    Appendix Index, together with their full Appendices IN HARD COPY to
    both the Forum and the Complainant on May 3, 2002. (The Complaint
    evidently chose not to respond to anything within these Appendices.)

    Furthermore, the Panel's refusal to accept an essential and damning Supplemental Submission on the basis that the Respondent did not seek the Panel's permission is further indicative of the Panel's deliberate wrong-doing and is also laughable in the extreme. Besides the fact that the Respondent had already sent BOTH their Response AND Appendices IN ELECTRONIC FORM to both the Forum and the Complainant, by their own admission, both the Forum and the Complainant clearly and evidently received the Respondent's Supplemental Submission with correct payment and in due time on June 3, A TOTAL OF SEVENTEEN DAYS BEFORE THE PANEL WAS EVEN APPOINTED...

    ...How can the Respondent seek permission from a non-existent Panel? Indeed, the Case Administrator clearly accepted the Extra Submission as fully valid and therefore formed an essential and indisputable part of the Respondent's Response. In the absence of a Panel having been appointed at that time, she clearly had authority to make such a judgment by virtue of her position is Case Administrator and effectual Arbiter of such matters UNTIL the Panel was officially appointed on June 20 and also served with both the Complainant's Complaint and the Respondent's Response.

    The Panel's stated position clearly insults the intelligence and common-sense of the Case Administrator and, by connection, also clearly disputes and undermines both the competence, authority and jurisdiction of the National Arbitration Forum.

    I find this attitude unacceptable, disrespectful and repugnant.

    (iii) The Decision contains bizarre inaccuracies (for example, arguing that because the Respondent registered a domain name he never did in fact - at any time - register ("AOL.INSTANTMESSENGER.NAME"), makes him a proven CyberSquatter. The Panel also makes the extremely unfair assumption that the Respondent would undoubtedly link this unregistered domain to his websites. The Panel also states that it was the Complainant who requested a Three-Person Panel. It was not. The Complainant requested a Single-Person Panel; it was the Respondent who insisted upon a Three-Personal Panel in this case.

    Clearly this makes many of the Panel's comments meaningless in light of the true facts.

    (iv) The Panel comments make gross errors of both assumption and fact against the Respondent without any genuine or factually correct evidence or proof whatsoever, nor with any sufficiently fair, logical or legal basis given for their views.

    (v) The Supplemental Submission by the Respondent was, and is, an essentially damning collection of evidence against the Complainant and their spurious Claims that has clearly been sidelined for reasons of both favouritism, partiality, prejudice and unfairness. Again, I am disgusted by this blatant disregard for what genuine "Arbitration" stands for.

    (vi) Furthermore, even without their Supplemental Submission, the Respondent's Response clearly showed that the Complainant's Claim was false under UDRP Rules; the Complainant only proved one of the three necessary key points, when they needed to prove all three under UDRP Rules, where as the Respondent proved two out of three corresponding key points for maintaining ownership and usage of "AIM5.COM." Just as importantly, the Respondent has made long-term legitimate NON-COMMERCIAL use of the "AIM5.COM" without either registration in bad faith, nor intend to defraud, confuse or mislead, nor with a view to tarnishing any trademarks of the Complainant, nor to abuse or defame the them in
    any way whatsoever.

    (vii) The Respondent finds it amazing that the Complainant has now effectively "won" ALL THIRTY-TWO of their Cases brought by themselves to the National Arbitration Forum.

    (viii) ICANN's UDRP Rules clearly exonerate the Respondent and even simply relying on the clear reasoning and statements of the Respondent, the Complainant simply failed to
    prove their Case.

    Furthermore, the Panel clearly should have decided the Respondent is entitled to continue both owning and using "AIM5.COM."

    Indeed, the Panel should also have led to a finding of Reverse Domain Name Hijacking by the Complainant, on the basis of the Respondent's prior offers to transfer "AOLCYBERCAFE.COM", "AOLINTERNETCAFE.COM" and "AOLNETCAFE.COM" FREE OF CHARGE to the Complainant OVER A YEAR BEFORE THE RESPONDENT SUBMITTED THEIR RESPONSE TO THE FORUM BEFORE THEIR DEADLINE OF APRIL 29, as well as clear and malicious "harassment" of the Respondent by the Complainant in light of both prior offers and the Respondent's proven ill health, evidenced as greatly worsened by the Complainant's needless actions in pursuing this Case for it's own ends.

    The Respondent also later repeatedly offered ALL of the Dispute Domain Names
    AT COST to the Complainant.

    The Complainant refused both offers and proceeded to continue harassing and attempting to intimidate the Respondent into giving up the four domain names without either cost or dispute.

    The Respondent has never denied the Complainant opportunity to receive transfer of three of the Disputed Domain Names and only argued for keeping "AIM5.COM" in that it did not break ICANN's UDRP Rules on the usage and maintenance of internet domain names.

    (ix) Both the Panel's comments and their Decision flies in the face of both UDRP and the Forum's Supplemental Rules, which have been clearly laid down and endorsed by ICANN, as well as by the abundant evidence of numerous prior cases.

    In light of the above, we ("Adrian Paul Miles" and associates, operating as ANNO DOMINI 2000 DOMAINS), cannot accept the Panel's Decision as either Valid or Legally-Binding.

    We therefore request the Decision by overturned by the Arbitration Forum and, if deemed necessary, by ICANN themselves, as clearly and evidently the Panel's comments, arguments and Decision mostly go against the UDRP Rules themselves. Indeed, the Panel's comments and Decision blatantly undermine the dual purpose of both the UDRP and Arbitration itself - namely, equality, impartiality, fairness and justice.

    For these reasons, we OBJECT to the Panel's comments, their disregard of admitted and timely evidence and - just as importantly - the Panel's Decision and Determination
    in this Case.

    We wish to make it known that we will not stand for INCOMPETENCE, BIAS, PARTIALITY and CLEAR ABUSE of both ICANN'S UDRP and Supplemental Forum Rules;

    We therefore demand the Decision is REVERSED by a higher authority. We wish to make it known we are also prepared to sue any Panelist proven to have leaked the Case before it was officially announced, as well as take the Case to Judicial Review under the US Anti-Cybersquatting Consumer Protection Act.

    I, "ADRIAN PAUL MILES", will not tolerate being publicly labelled a CyberSquatter,
    when I am not.

    I will also not allow either ICANN's UDRP Rules or the National Arbitration Forum Policies' Procedures and Processes to be made a laughing-stock amongst the grassroots Internet Community worldwide.



    WRITTEN: JUNE 4-12, 2002

    BY: ADRIAN PAUL MILES
    (on behalf of the non-profit consumer-related friends' co-operative ANNO DOMINI 2000)
    [ Reply to This | Parent ]
    Further Case Notes and Recently Updated Response by ANNODOMINI2000


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