The additional submission of Complainant should not be accepted

Respondent respectfully requests that the Panel not accept the Submission of Complainant dated September 17, 2001.

We submit that there are several reasons that the Panel should not accept the second submission of Complainant, as follows:

1) The acceptance of a second submission from a complainant is not permitted by the rules of the proceeding. Neither the Uniform Domain Name Dispute Resolution Policy, The Rules for Domain Name Dispute Resolution Policy nor the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy of eResolution ("Supplemental ules") contain any provision that permits the acceptance of a second submission from a Complainant. If the panel were to accept a second submission of Complainant, the action would be a major deviation from the established rules and procedures. The action could adversely affect Respondent's rights and result in an unfair proceeding that is at variance from the established procedures. In support of this principle, we quote from the decision in the case of Banco Atlántico S.A. v. V.G. Peris, ERESOLUTION Case No. D2001-0526 which states as follows [emphasis added]:

"It is in the Panel's discretion to admit further submissions and numerous Panels have made it plain that such submissions should be allowed only in exceptional cases; otherwise the simplicity and expedition of the UDRP will be jeopardized."

We note that the Complainant has made absolutely no argument suggesting that the instant case is an exceptional case or that there are any exceptional circumstances that would justify a further submission. Furthermore, in the Panelist's email of September 12, there is no indication that there are any indications that the instant case is an exceptional case which would justify a deviation from the rules of eResolution.

As further support for our position, we note that another case emphasizing the limited scope of the UDRP decision-making process is the case of adlon-hotel.com FUNDUS Hotelentwicklungs- und Verwaltungsgesellschaft mbH v. Adlon Hotel, Case No. D2001-0339 May 28, 2001 which provides as follows [emphasis added]:

"Because of its limited provisions for the gathering and presentation of evidence, the UDRP is not well-suited for adjudicating complex trademark priority disputes"

We also point out that the UDRP was established to permit the expedited disposition of clear abuses. This type of clear abuse is certainly not present in the instant case. In the case of America Online, Inc. v John Deep d/b/a Buddy USA Inc., National Arbitration Forum, FA0103000096795, a panelist, G. Gervaise Davis III, Esq., stated that:

"the purpose of the ICANN UDRP is to deal with simple, clear, abusive registrations of domain names, and not complex trademark disputes or to inject the Panel's views that someone should not be doing this since it might be wrong or unfair. This case is not, in my judgment, a case of abusive registration of a domain name - the only types of cases intended to be within the ambit of the ICANN summary arbitration rules."

Furthermore, in the case of J. Crew v. Crew.com, D2000-0054 (WIPO Apr. 20, 2000), it is stated that:

"The ICANN policy is very narrow in scope; covers only clear cases of "cybersquatting" and "cyberpiracy," and does not cover every dispute that might arise over domain names. See, for example, Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy (October 24th, 1999), http://www.icann.org/udrp/udrp-second-staff-report-24oct99.htm 4.1(c) which states:

"Except in cases involving "abusive registrations" made with bad-faith intent to profit commercially from others' trademarks (e.g., cybersquatting and cyberpiracy), the adopted policy leaves the resolution of disputes to the courts (or arbitrators where agreed by the parties) and calls for registrars not to disturb a registration until those courts decide. The adopted policy establishes a streamlined, inexpensive administrative dispute-resolution procedure intended only for the relatively narrow class of cases of "abusive registrations." Thus, the fact that the policy's administrative dispute-resolution procedure does not extend to cases where a registered domain name is subject to a legitimate dispute (and may ultimately be found to violate the challenger's trademark) is a feature of the policy, not a flaw. [emphasis added]"
2) A very dangerous precedent would be established if the Panel were to accept a second submission from Complainant in contravention of the rules and procedures. The precedent would establish a basis for the submission and acceptance of many documents and arguments of both the complainant and respondent in contravention of the established rules and procedures. The ICANN process for the resolution of domain name disputes is intended to create an expeditious decision-making process. This intent would be subverted if the precedent were established for numerous submissions to be accepted and numerous evidence submissions to be accepted. The ICANN process is designed to provide a remedy for a complainant that is able to prepare a complaint that presents clear-cut reasons for the quick and expeditious transfer of a contested domain name. If, however, a complainant cannot present a clear-cut and persuasive Complaint, then a court of law is the appropriate forum. In a court of law, numerous submissions can be made and a thorough review of controversial facts can be undertaken. In the instant case the Complainant has had unlimited time to prepare the Complaint. The Complaint should be evaluated on its merits. If the Complaint fails in the expeditious ICANN forum, then Complainant can pursue additional remedies in other forums that are designed to accommodate multiple submissions and numerous opportunities for extensive fact-finding activities.

If the second submission of Complainant is accepted and if Complainant is granted its request for the transfer of the domain names in question, the decision in this case would stand for the proposition that:

"Although there has been substantial noncompliance with the Supplemental Rules of eResolution to the detriment of a respondent, a complainant can be successful and obtain a decision requiring that the domain names in question be transferred to complainant."