The Estate of Marlon Brando v. WhoisGuard
c/o WhoisGuard Protected
Claim Number: FA0506000503817
PARTIES
Complainant
is The Estate of Marlon Brando (“Complainant”),
represented by Kevin Costanza, of Seed IP Law Group PLLC,
701 Fifth Avenue, Suite 6300, Seattle, WA 98104. Respondent is WhoisGuard c/o WhoisGuard Protected (“Respondent”), represented by Peter J. Linden, of Peter J. Linden &
Associates, 2500 Anniversary Lane, Newport Beach,
CA 92660.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <marlonbrando.com>,
registered with Enom, Inc.
PANEL
The
undersigned certifies that he has acted independently and impartially and to
the best of his knowledge has no known conflict in serving as Panelist in this
proceeding.
Mr.
Peter L. Michaelson, Esq. as Panelist.
PROCEDURAL HISTORY
The Complaint was brought pursuant to the
Uniform Domain Name Dispute Resolution Policy (“Policy”), available at <icann.org/services/udrp/udrppolicy24oct99.htm>,
which was adopted by the Internet Corporation for Assigned Names and Numbers
(ICANN) on August 26, 1999, and approved on October 24, 1999, and in
accordance with the ICANN Rules for Uniform Domain Name Dispute Resolution
Policy (“Rules”) as approved on October 24, 1999, as supplemented by the
National Arbitration Forum Supplemental Rules for Uniform Domain Name Dispute
Resolution Policy then in effect (“Supplemental Rules”).
Complainant
submitted a Complaint to the National Arbitration Forum ("Forum")
electronically on June 23, 2005; the Forum received a hard copy of the
Complaint, together with Annexes 1‑4 and a declaration of Mr. Kevin
Costanza (itself containing a separate set of exhibits numbered A‑C), on
June 29, 2005. Subsequently and within
the time limit allotted, Complainant submitted a slightly amended Complaint to
definitively identify the actual respondent.
In particular, the "WhoisGuard" service is provided by the
Registrar to mask the true identity of a domain name registrant by preventing
public access to that information through its (and any) WHOIS database and thus
attempt to safeguard privacy interests of that registrant. Complainant filed its original complaint
simply noting Respondent as "WhoisGuard c/o WhoisGuard
Protected". In response to a letter
from the Forum requiring a more definitive identification of the actual
respondent at interest, Complainant contacted the Registrar which, in turn,
identified the actual current registrant as Ms. Jo An Corrales. Complainant then amended its complaint to
specify Ms. Jo An Corrales as the actual Respondent. Hence, for simplicity, this decision will hereinafter view
Respondent as solely being Ms. Corrales.
On
June 30, 2005, the Registrar, Enom, Inc. confirmed by e‑mail to the Forum
that the <marlonbrando.com>
domain name is registered with Enom, Inc. and that the Respondent is the
current registrant of the name. Enom,
Inc. has verified that Respondent is bound by the Enom, Inc. registration
agreement and has thereby agreed to resolve domain‑name disputes brought
by third parties in accordance with the Policy, the registration agreement is
in English, the disputed domain name will remain in a locked status, and that
the registrant submitted to the jurisdiction at the location of the principal
office of the Registrar for court adjudication of disputes concerning or
arising from the use the disputed domain name.
On
July 7, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of July 27,
2005 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via e‑mail, post and fax, to all entities and
persons listed on Respondent’s registration as technical, administrative and
billing contacts, and to postmaster@marlonbrando.com by e‑mail.
A
timely Response, together with Annexes 1‑5, was received by the Forum and
determined to be complete on July 27, 2005.
Thereafter
and pursuant to Supplemental Rule 7, on August 1, 2005, Complainant timely
filed an additional submission, captioned "Complainant's Reply", with
the Forum.
On August 3, 2005, pursuant to Complainant’s request to
have the dispute decided by a single‑member
Panel, the Forum appointed Mr. Peter L.
Michaelson, Esq. as the Panelist and
set a deadline of August 17, 2005 to receive the decision from the Panel.
Subsequently on August 8, 2005, Respondent timely filed,
in accordance with Supplemental Rule 7, its first supplemental submission,
captioned "Response to the Complainant's Reply," with the Forum.
Thereafter, each of the parties filed another additional
submission with the Forum, though neither of these submissions was timely under
Supplemental Rule 7. Specifically, on
August 12, 2005, Complainant filed its second supplemental submission, captioned
"Complainant's Sur‑reply".
On August 16, 2005, Respondent filed its second supplemental submission,
captioned "Respondent's Objections to Complainant's Sur‑Reply."
In light of unexpected conflicts experienced by the
Panel ‑‑ which amounted to exceptional circumstances, the Forum, at
the Panel's request, extended the deadline for the decision to August 31,
2005.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
The
following contentions of Complainant and Respondent are predicated on portions
of the Costanza declaration and a declaration of Jo An Corrales, respectively
(the latter declaration appears in Annex 1 to the Response). For simplicity, all references to specific
paragraphs in those declarations have been omitted from the following
discussion.
A. Complainant
1.
Confusing similarity/identicality
Complainant
contends that the disputed domain name is confusingly similar to Complainant's
common law mark, MARLON BRANDO.
Specifically,
Complainant alleges that it currently holds exclusive rights in at least the
United States in the disputed name and MARLON BRANDO mark, with those rights
long preceding the August 7, 2004 date on which Ms. Corrales modified the
registration records at the Registrar to transfer that name into her sole
ownership.
Further,
Complainant notes, through citing to Experience Hendrix, L.L.C. v. Hammerton,
D2000‑0364 (WIPO Aug. 2, 2000), that, in assessing whether a domain name
is identical or confusingly similar to a mark, the top-level domain (here being
".com") is ignored.
Consequently,
Complainant alleges that the disputed domain name, <marlonbrando.com>, is identical to Complainant’s mark but
for the space between the first and last name, and hence is certainly
confusingly similar thereto.
Therefore,
Complainant concludes that it has met the requirements of paragraph 4(a)(i) of
the Policy.
2.
Rights and legitimate interests
Complainant
contends that Respondent has no rights or legitimate interests in the disputed
domain name.
Specifically,
Complainant contends that:
(a)
Ms. Corrales is not commonly known as “Marlon Brando” and does not operate a
business or organization commonly known as “Marlon Brando.”
(b)
To the extent Ms. Corrales had any association with Mr. Brando, it is through
her former employment as Mr. Brando’s business manager. In that position, she was serving as
Mr. Brando’s agent and owed fiduciary duties to Mr. Brando: to always act
in Mr. Brando’s best interest, to always avoid taking advantage of
business opportunities presented to Mr. Brando and to always avoid personally
profiting at Mr. Brando’s expense.
Consequently, Ms. Corrales could not, herself, acquire any rights in the
name, and MARLON BRANDO mark; instead, all such rights would automatically
inure to the benefit of Mr. Brando, by operation of agency law.
(c)
Mr. Brando terminated Ms. Corrales' employment in March 2004, prior to the date
when she transferred the disputed domain name from Mr. Brando to herself (i.e.,
prior to August 7, 2004). Along with
her job having been terminated, Ms. Corrales lost all authority, actual and
implied, to act on behalf of Mr. Brando, including the legal authority to
transfer that name. Ms. Corrales has
never had the authority to act on behalf of the Brando estate.
(d)
Neither Mr. Brando nor the Brando estate granted a license, consented to, or
otherwise authorized Ms. Corrales to use the name, MARLON BRANDO.
(e)
To the extent Ms. Corrales tries to assert any right or legitimate interest in
the name MARLON BRANDO, that interest did not exist prior to her having actual
knowledge of Mr. Brando’s and the Complainant’s exclusive rights in the
MARLON BRANDO mark. Indeed, the reason
Ms. Corrales transferred the disputed domain name to herself was precisely
because she was aware that the domain name was identical to that mark. Hence, she had prior notice of that mark
which, in turn, counters any claim of hers that she had any rights or legitimate
interest in the disputed domain name, citing to Experience Hendrix, L.L.C.
v. Hammerton, D2000‑0364 (WIPO Aug. 2, 2000).
(f)
Lastly, to the extent Ms. Corrales tries to assert that she is making a
legitimate noncommercial or fair use of the domain name, without intent for
commercial gain, Complainant notes that, prior to receiving notice of
Complainant’s objections, the home page associated with the disputed domain
name expressly stated that once the site goes operational that site would be
subscription‑based (the home page stating: “As a bonus for joining early
and helping us test we will add an extra month to your
subscription.”).
3.
Bad faith use and registration
Complainant
contends that Respondent has registered and is using the disputed domain name
in bad faith, hence in violation of paragraph 4(a)(iii) of the Policy.
With
respect to bad faith registration, Complainant alleges the following:
(a) On November 1, 1997 and prior to hiring Ms.
Corrales, Mr. Brando originally registered the disputed domain name in his name
and listed his address on the registration record. In 2000, Mr. Brando had Ms. Corrales manage the domain name for
him after she was hired to be his business manager. Because Ms. Corrales was authorized by Mr. Brando to handle his
business affairs, Ms. Corrales’ name was added in the registrant and contact
fields, and the contact information was modified to list only Ms. Corrales’
telephone number, fax number and e‑mail address in the contact fields.
(b) Mr. Brando terminated Ms. Corrales’ employment
in March 2004. At that time, any
authority, actual or implied, that Ms. Corrales had to manage Mr. Brando’s
business or other affairs and/or control his property, including the disputed
domain name, immediately terminated as a matter of law.
(c) Upon Mr. Brando’s death on July 1, 2004, his
estate assumed ownership and control of all his property including his interest
in the disputed domain name.
(d) The estate did not immediately update the
registrant and contact information associated with that name. Consequently, although Ms. Corrales lost all
authority for managing that name, she unilaterally changed the registrant and
contract information associated with that name in order to transfer ownership
of that name to herself. Specifically,
on August 6, 2004, and in spite of knowing that she had been terminated by Mr.
Brando, Mr. Brando had previously died, and she had no authorization to
manage the domain name, Ms. Corrales nevertheless sent an e‑mail to the
Registrar instructing it to transfer that name from Mr. Brando to
herself. To “hide her tracks,” Ms.
Corrales used “WhoisGuard” to prevent others from learning that she is the
current registrant.
As to its contention of bad faith use, Complainant
alleges the following:
(a) Ms. Corrales is using the disputed domain name
to intentionally attract, for commercial gain, Internet users to her web site,
by creating a likelihood of confusion with Complainant’s mark, as to the
source, sponsorship, affiliation, or endorsement of that site. In that regard, she intends to charge a
subscription fee for its services once the web site officially opens.
(b) To add
to the confusion created by Ms. Corrales as to source, sponsorship, affiliation
and endorsement of her web site associated with the disputed domain name, she
refers to her web site as “The Official Marlon Brando Forum and Discussion
Group.” Accordingly, any initial
interest confusion caused by the disputed domain name is only furthered by her
deceptive use of the term “Official Marlon Brando.”
(c) Ms. Corrales buries a single‑line
disclaimer in small, inconspicuous text toward the bottom of the home page of
her web site and provides no disclaimer anywhere else on the web site. Complainant opines that use of such a
disclaimer does not avoid a finding of bad faith, as the disclaimer may be
missed, ignored or misunderstood by Internet users, and hence does nothing to
dispel initial interest confusion inevitable from Respondent's actions, citing
to Ciccone
v. Parisi, D2000‑0847 (WIPO Oct. 12, 2000).
(d) Further, Ms. Corrales' use of the disputed
domain name disrupts the business of Complainant, damages Complainant’s
reputation if consumers are unhappy with Ms. Corrales' web site, or even
worse, results in lost revenues to Complainant.
B.
Respondent
1.
Confusing similarity/identicality
Respondent does not contest that the
disputed domain name is either identical or confusingly similar to the MARLON
BRANDO mark.
2.
Rights and legitimate interests
Respondent
contends that, under paragraph 4(a)(ii) of the Policy, she has legitimate
rights and interests in the disputed domain name for the simple reason that Mr.
Brando gifted the domain name to her in late 2001.
In
that regard, Ms. Corrales alleges:
(a) She has been a close, personal friend
and confidant of Mr. Brando for over forty years. She also served as his business manager for approximately four
years.
(b)
Mr.
Brando originally had the disputed domain name registered in his name on
November 1, 1997. However, Mr. Brando
gifted the "web page" (which the Panel takes to mean the disputed
domain name) to Ms. Corrales to do with it as she pleases. Subsequently, Mr.
Brando added Ms. Corrales as a registrant of the that name and used her
telephone number, fax number and e‑mail address in the new contact
fields. Ms. Corrales points to a domain name history
printout from Whois Source (a copy of the relevant page appears in Annex 3 to
the Response) showing that on August 18, 2002, Joanne Corrales (sic) is named
as a registrant together with Mr. Brando.
(c) During Ms. Corrales’ employment with
Mr. Brando, Ms. Corrales had no knowledge of developing or designing web
pages. Hence, there would be no reason
why Mr. Brando would add Ms. Corrales as a registrant in order for her to
manage the domain name. Mr. Brando had
many employees working at his Mulholland home who were knowledgeable in web
design. Mr. Brando gave Ms. Corrales
the disputed domain name as a gift.
Consistent with his gift to Ms. Corrales, Mr. Brando subsequently added
her name as a registrant.
(d) At no time did the estate of Marlon
Brando, Mr. Brando himself or any representative of Mr. Brando demand that Ms.
Corrales the return the disputed domain name.
The Complaint is the first instance in which anyone ever objected or
otherwise demanded the return of that name since the time it was gifted over to
Ms. Corrales in late 2001. In that
regard, Respondent states that failing to act within a reasonable time from the
date of registration and use of the domain name amounts to acquiescence by
Complainant to the registration and use of it by Ms. Corrales. Thus, Complainant has waived any rights to
now request that the domain name be transferred back to it, citing to Smith
v. DNS Research, Inc., FA 220007 (Nat. Arb. Forum Feb. 21, 2004).
3.
Bad faith use and registration
Respondent
contends that her behavior does not reflect bad faith registration and use.
In
that regard, Ms. Corrales alleges the following:
(a) After her
employment with Mr. Brando ended, she still retained the authority and power to
change the registrant and contact information associated with the disputed
domain name because that name had previously been gifted to her by Mr. Brando.
Furthermore, she was the rightful owner, registrant and contact administrator
with the authority to make the transfer.
(b) When Mr. Brando gifted the disputed domain
name to Ms. Corrales, he instructed her to do what she wanted with it including
removing his name as the registrant, but she had not done so until August 6,
2004 when she transferred the domain name from Jo An Corrales and Marlon Brando
to just Jo An Corrales. Ms. Corrales
believed she had the authority as the registrant and owner of the name to make
the transfer; hence, she did so in absolute good faith.
(c) Due to the
thousands of e‑mails and phone calls to Ms. Corrales from around the
world after Mr. Brando’s death, she subsequently used “WhoisGuard” to alleviate
the intrusion of privacy produced by the calls and e‑mails. She did not use “WhoisGuard” to “hide her
tracks” but only to protect her privacy from the flood of inquires to her home
at all hours of the night.
(d) Her actions
do not constitute bad faith use because the name was gifted to her by
Mr. Brando. Additionally, the use
of that name does not disrupt the business of Complainant nor damage Complainant’s
reputation because the domain name has not been used for an improper
purpose. Contrarily, the name has been
used as a forum to discuss the life and memories of Mr. Brando, including
interesting aspects of his life told by those who were his closes friends,
longtime employees and associates. In
that regard, a copy of the home page of that site appears in Annex 4 to the
Response.
(e) She has not
intentionally attempted to attract, for commercial gain, Internet users to her
web site by creating a likelihood of confusion as to the source, sponsorship,
affiliation or endorsement of that site.
In that regard, she has stated on the home page that the forum and
website is run by Mr. Brando’s closest friends and assistants. Furthermore, that site includes a disclaimer
stating that the site is not affiliated with the Marlon Brando estate. Ms.
Corrales does not intend, nor has she purported to act on behalf of the
estate.
(f) The
home page of her web site states that once the site goes operational, it would
be subscription‑based. However,
when Mr. Brando gifted the disputed domain name to Ms. Corrales, he
informed her that she could do whatever she wanted with it. Ms. Corrales is simply acting in good
faith and according to Mr. Brando’s instructions.
C.
Additional Submissions
While
each of parties filed two additional submissions, the first one of which was
timely filed and the other was not, this Panel ‑‑ as it is apt to
do ‑‑ has read all the submissions. These submissions basically re‑iterate and amplify allegations
made in both the Complaint and the Response through an exercise of what can
best be described as "dueling declarations" complete with additional
inconsistencies, invective and a heavy complement of accusations and self‑serving
statements ‑‑ all of which are candidly of no use to the
Panel. Consequently, the Panel
discounts all these submissions and accords essentially no weight to any of
them. Thus, the Panel sees absolutely
no need to summarize any of them.
FINDINGS
A copy of the
WHOIS registration record for the disputed domain name appears across
Exhibit 2 to the Complaint and Exhibit C to the Costanza declaration. This name was registered on November 1,
1997. Sometime during 2001, the record
was modified to ostensibly transfer ownership of the name to Mr. Brando and Ms.
Corrales jointly. Currently, the record
reflects both Mr. Marlon Brando and Ms. Corrales as the organization,
administrative and zone contacts for that name. Respondent did use and continues to use the WhoisGuard service
provided by the Registrar to mask the identities of Mr. Brando and Ms.
Corrales as the current domain name registrants.
Marlon Brando was an extraordinarily well known
actor and movie personality, whose reputation extended worldwide. He was also a director and producer. Mr. Brando acting achievements
illustratively include the following roles and awards: A Streetcar
Named Desire; Viva Zapata!
(Cannes Film Festival, Best Actor; British Film Academy, Best Foreign Actor); Julius Caesar
(British Film Academy, Best Foreign Actor); The Wild One;
On the
Waterfront (New York Film Critics Circle, Best Actor; Golden
Globe, Best Actor, Drama; British Film Academy, Best Foreign Actor; Oscar, Best
Actor; Cannes Film Festival, Best Actor); Guys and
Dolls; Mutiny on the
Bounty; The Godfather
(Oscar, Best Actor; Golden Globe, Best Actor in a Motion Picture, Drama); Last Tango in
Paris (National Society of Film Critics, Best Actor; New York
Film Critics Circle, Best Actor); Roots: The Next Generations (Emmy,
Outstanding Supporting Actor in a Limited Series or a Special); Superman;
Apocalypse
Now; Don Juan
DeMarco; and The Island of
Dr. Moreau. Mr. Brando
also received the following honors: 1955: Golden Globe, World Film Favorite,
Male; 1972: Golden Globe, World Film Favorite, Male; and 1973: Golden Globe,
World Film Favorite, Male.
Through Mr. Brando's prominent public presence and
recognition on stage, on screen, in print, and elsewhere, the name "MARLON
BRANDO" long ago—at least as long ago as the 1960s—became famous in the
minds of the entertainment‑consuming public. Consequently, the relevant marketplace immediately associates the
name, and MARLON BRANDO mark with the services that Marlon Brando provided,
i.e., as an actor, entertainer, director and producer.
Mr. Brando died on July 1, 2004. While the record does not specify the place
of death, the Panel takes judicial notice of the fact that Mr. Brando died in
Los Angeles, California. See Adam
Bernstein, Actor Marlon Brando, 80, Dies, Wash. Post,
July 2, 2004, available at http://www.washingtonpost.com/wp‑dyn/
articles/A23157‑2004Jul2.html.
Upon his death, Mr. Brando's estate, acting through
his will, assumed legal ownership and control over his assets, including the
rights in his name, mark and the disputed domain name.
Until Mr. Brando's death, Ms. Corrales
had been a close personal friend of his for over forty years and his business
manager for nearly the past four years.
On August 6,
2004, Ms. Corrales sent an e‑mail to the Registrar instructing it to
transfer the disputed domain name from both Mr. Brando and her names to just
her name individually.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a
complaint on the basis of the statements and documents submitted in accordance
with the Policy, these Rules and any rules and principles of law that it deems
applicable.”
Paragraph
4(a) of the Policy requires that the Complainant must prove each of the
following three elements to obtain an order that a domain name should be
cancelled or transferred:
(1)
the domain
name registered by the Respondent is identical or confusingly similar to a
trademark or service mark in which the Complainant has rights;
(2)
the
Respondent has no rights or legitimate interests in respect of the domain name;
and
(3)
the domain
name has been registered and is being used in bad faith.
Jurisdiction
While
Complainant attempts to wrap this dispute in the garb of cybersquatting in
order to "shoe‑horn" it under the Policy presumably for a rapid
determination of ownership of the disputed domain name, that attempt is misguided. This dispute simply does not involve
cybersquatting.
When
stripped of all its irrelevancies ‑‑ with which the record is quite
rife, this dispute distills down, at its kernel, to just one dispositive issue
and one which does not implicate cybersquatting at all: did Mr. Brando make a
valid inter vivos gift of the disputed domain name to Ms. Corrales? Unfortunately, this issue is one which the
Panel lacks jurisdiction to address.
A
domain name is personal property no different, for purposes of its proper
administration as a possible asset of a decedent, from any other personal
property then owned by the decedent.
Given that Mr. Brando died in California, the Panel therefore turns to
the law of the State of California as governing.
While
relevant California case law appears to be somewhat scant, Blonde v. Estate of Jenkins,
131 Cal. App. 2d 682, 281 P. 2d 14 (Cal.App.2.Dist. 1955) is nevertheless quite
instructive. There, a issue arose as to
which one of two alleged donees, Wade and Blonde, Decedent Jenkins made an
inter vivos gift of 250 shares of corporate stock. Each donee alleged ownership of the shares and filed an action to
quiet title to the same shares as against the other, with both actions then
having been consolidated below by the trial court.
On
appeal, the Court began its analysis by noting:
Gifts first
asserted after the death of the alleged donor are always regarded with
suspicion by the courts. . . . In order
to make a valid gift, a donor must not only make delivery and part with control
of the object claimed, but the donor must at the same time have the intention
to complete a presently effectively gift and a delivery amounting to a present
transfer of title . . . And that intention must be executed by a complete and
unconditional delivery. . . .The donor has the burden to prove the gift.
Id.
at 685-686 (citation
omitted).
In
assessing whether Donor Wade had, in fact, received an inter vivos gift of the
shares, the Court used as its test:
To constitute a valid gift inter vivos, the gift must be
complete by actual delivery without power of revocation. . . . If dominion and
control over the gift is retained by the donor until his death, it becomes
merely an unexecuted and unenforceable promise to make a future gift. . . .
Reserving dominion and control over property is fatal to the asserted gift
thereof. To accomplish a gift inter
vivos, the donor must divest himself completely of the power of revocation.
(citations omitted).
Id.
at 686 (citations
omitted).
Upon
applying this test to the facts at hand, the Court found that, in spite of the
fact that Donor Jenkins made a verbal statement gifting the shares to Donee
Blonde, the donor nevertheless retained his stock certificates under the guise
of requiring those certificates to be guaranteed by his bank, hence retaining
control over their ultimate disposition.
Consequently, the Court affirmed the trial court's decision that Donor
Jenkins did not make an inter vivos gift of those shares to Donee Wade.
See
also In re Hall’s Estate, 98 P. 269 (Cal.
1908) (“A written gift inter vivos need not be actually delivered, but no gift
of personal property, whether written or verbal (except a donatio causa
mortis), is complete and effectual unless the donor intends to divest himself
completely of control or dominion over the property given.”); see also Berl v. Rosenberg, 169 Cal.App.2d 125,
336 P.2d 975 (Cal.App.1.Dist. 1959) (“The two basic
elements are the intention of the donor to make a voluntary transfer to the
donee, and a delivery, actual or constructive, by the donor to the donee or to
someone on his behalf.").
Now,
as to the dispute at hand and under California law, a tribunal faced with
deciding whether Mr. Brando made a valid inter vivos gift of the disputed
domain name to Ms. Corrales must examine whether Mr. Brando not only
intended to make a gift of that name to Ms. Corrales but in fact actually
completed that gift, prior to his death, by completely transferring that name
to her without retaining any power to revoke the gift.
Such
inquiries, which have no bearing on cybersquatting, lie completely outside the
narrow and sharply focused reach of the Policy.
Moreover,
because such inquiries are highly factually dependent ‑‑
particularly given the inherent judicial skepticism towards posthumously
asserted inter vivos gifts (which forms the crux of Respondent's case), those
inquiries are simply inappropriate for this Panel to address owing to the
rather summary nature of an ICANN proceeding which precludes a complete factual
record from being established and duly considered.
Therefore,
this Panel believes that this matter, lying outside the purview of an ICANN
proceeding, is best left and must solely be left to adjudication before the
California courts and not to an ICANN administrative panel.
Consequently,
this Panel rules that it is without jurisdiction to hear this matter.
Thus,
all consideration of any of the factors under the Policy is now moot.
DECISION
In accordance
with paragraph 15 of the Rules, the Complaint is hereby DISMISSED for lack of jurisdiction.
Peter L.
Michaelson, Esq., Panelist
Dated: August
29, 2005
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