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


     
    This discussion has been archived. No new comments can be posted.
    Dan's Dispute Resolution Procedure (DDRP) | Log in/Create an Account | Top | 58 comments | Search Discussion
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    ADRIAN PAUL MILES' RESPONSE TO AOL'S SPURIOUS CLAI
    by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Thursday June 06 2002, @11:46AM (#6902)
    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.
    [ Reply to This | Parent ]
    ADRIAN PAUL MILES' RESPONSE TO AOL'S SPURIOUS CLAI by ANNODOMINI2000
    Re: ADRIAN PAUL MILES' RESPONSE TO CORRUPT UDRP DE
    by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Thursday June 06 2002, @11:48AM (#6903)
    User #3359 Info | http://www.ad2000d.co.uk/
    1

    Read the rest of this comment...

    [ Reply to This | Parent ]
    Re: ADRIAN PAUL MILES' RESPONSE TO AOL'S SPURIOUS
    by Anonymous on Thursday June 06 2002, @04:27PM (#6910)
    That piece of crap was posted your website, why put it here? Why didn't you put up a real defense? If you spent the money on a three member panel, you really could have spent more time on your answer. Lame lame lame.
    [ Reply to This | Parent ]
    Re: ADRIAN PAUL MILES' RESPONSE TO AOL'S SPURIOUS
    by Anonymous on Thursday June 06 2002, @04:30PM (#6911)
    Go grab a pint and cheer on the lads against the Argentines instead of wasting your time complaining here. You lost.
    [ Reply to This | Parent ]


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