Dear Sirs/Madams,As the Board of Directors of ICANN, I am asking your urgent assistance
in the abovementioned case in which I am the Respondent.
My contention is that
I have answered the complaint in the fullest, including sending $17,005 worth of
CD-ROMs to prove my case and a further $1,550 worth of CD-ROMs. I and my staff
have spent inordinate amounts of time and resources this month answering the Complaint
only to find that the goal posts have been moved because the Complainant (Rapido
TV Limited) and I have to start from scratch again. This is totally unfair,
it is a Breach of ICANN rules and definitly against the spirit of the procedure.
We are a small company who have been in business for over 4 years and now our business
is suffering because we are unable to service our clients because this procedure
now seems to be never-ending. The rule that has been breached is Rule
12 which I am sure you are aware states:
"12. Further Statements
In addition
to the complaint and the response, the Panel may request, in its sole discretion,
further statements or documents from either of the Parties."
I have not been given
any time to reply to this new complaint and to do so will involve going back in my
life and gathering evidence from the places I lived which include Kfar Gil'adi, Israel;
Amsterdam, The
Netherlands; Edinburgh, Scotland; Manchester, England and New York,
USA. This will obviously take time and money which may cost my company business.
Below is a quick summary of the proceedings so far.
On 17th May a complaint was
submitted by Rapido TV Limited (Complainant)to the WIPO Arbitration and Mediation
Center.
On 30th May there was the Commencement of Administrative Proceeding. I
was then given 20 days to submit my response.
On 14th June I submitted my Response
(Which Heidi Ström, the WIPO appointed case manager admitted was the most Evidence
she had seen in defence of a case).
On 21st May the Complainant submitted yet another
complaint, changing their original complaint. The Complaint was in the format
of an email and was received garbled by myself and WIPO. I still do not have
a complete copy of this further complaint.
On 21st May I contacted WIPO as did
my Legal Representative, stating that this was in contravention of Rule 12.
Below is a copy of the email:
-----
WITHOUT PREJUDICE
Dear Ms Strom,
Eurotrash.com
(Case Number D2000-0449)
Thank you for your e-mail.
It is the Respondent's contention
that the submission of a further statement by the Complainant contravenes Rule 12
of the ICANN Rules and is a violation of the Administrative Proceeding.
As you
are aware, Rule 12 states that only the Panel in its sole discretion can request
further documents or statements from either of the Parties.
By submitting further
documentation, in the absence of a request by the Panel, the Complainant is attempting
to violate the Administrative Procedure.
We would point out that by submitting
the Complaint the Complainant agrees to be bound by the Rules. The Rules make
it clear that the Complainant's opportunity to state their case is in the Complaint.
The Complainant is being legally represented and advised and therefore there is no
reason to allow the Complainant to now contravene the Rules.
Accordingly, even
though the Respondent will demonstrate (if required) that the further statement adds
nothing to the Complainant's case, we would respectfully request that the Complainant's
further statement should not even be presented to the Panel as to do so is usurping
the authority of the Panel and would amount to WIPO being complicit with a breach
of the ICANN Rules.
Further, we hereby notify you that (if necessary) the Respondent
will
provide evidence to demonstrate that many of the assertions made in the further
statement are both unwarranted and slanderous and (if necessary) we will ask the
Panel to consider whether the Complainant's further statement is a breach of Rule
3 (b)(xiv) and the Certification given in paragraph [21.] of the Complaint.
As
you are aware Rule 3 (b)(xiv) requires that the Complainant's information is:-
"....not
being presented for an improper purpose, such as to harass, and that assertions ...are
warranted....by a good-faith and reasonable argument."
Please confirm by e-mail
what WIPO's position is in relation to the Complainant's further statement.
This
e-mail is written entirely without prejudice to our client's rights and pleas in
this matter.
Yours sincerely,
Peter MacConnell Orr
Tods Murray WS
-----
On
23rd (today) I received the following message from WIPO which I
beleive is factually
incorrect.
Dear Mr. MacConnell Orr,
The Center confirms receipt of your communication
of June 22, 2000.
Furthermore the Center confirms receipt of several communications
from the Respondent of June 22, 2000.
The ICANN Rules for Uniform Domain
Name Dispute Resolution Policy neither excludes nor includes the possibility of filing
further submissions besides the Complaint and the Response. The Center as an independent
provider of administrative services under the ICANN Policy is not in a position to
interpret the Rules. Therefore Complainant's Reply to Response as well as any further
submissions from either party will be forwarded to the panel and it will be up to
the panel to determine on its admissibility and relevance.
Sincerely,
Heidi Ström
WIPO
Arbitration and Mediation Center
-----
I ask with respect that these types of
problems be sorted out before any other TLDs are imposed on us.