Termination Of Proceedings; Leave To File Supplementary Submission Denied
Dead Sea Premier Cosmetics Laboratories Ltd. v. Maysan Jeuness GmbH / Gal Yana
UDRP proceedings can be terminated, but not just at the whim of the Complainant. The unfortunate result of applying for a termination and being rejected was illustrated in the recent case of Dead Sea Premier Cosmetics Laboratories Ltd. v. Maysan Jeuness GmbH / Gal Yana, WIPO Case No. D2013-2114 where the trade mark at issue was PREMIER BY DEAD SEA PREMIER and the domain name was <mypremierdeadsea.com>. In that case the claim was made that the facts of the case brought it within the UDRP elements and at that stage the case must have looked like a regular UDRP proceeding without any novel features. However, things changed when the Respondent claimed that there was a contractual distributor relationship between the parties, that the domain name had been registered pursuant to that relationship and that the Respondent was authorised to use the domain name. The Complainant’s response was to concede the existence of the contractual relationship and to ask for leave to terminate the proceedings or alternatively to file a supplementary submission, presumably with the intention of filing a new Complaint if the first application were accepted by the Panel or, if it was not accepted and the alternative application were accepted, trying to rectify the shortcomings in the Complaint which by then were only too apparent.
The Panel did not like either of these applications.
The first one was rejected on the ground that this would prejudice the Respondent which by then had invested significant time and money defending its position, as the Complainant could simply file a new Complaint, presumably after repairing its claim and presenting it in a stronger form .So the Rules allowing termination were not there for a Complainant to withdraws for its own convenience and to start again.
As to the application to file a supplementary submission, the panel first reminded us that leave was in all cases need to file supplementary submissions and that it would be granted only in exceptional circumstances. The exceptional circumstances relied on were that Counsel for the Complainant had been unaware at the time of the filing that the parties had entered into a distribution agreement. Counsel became aware of this after receiving the Response and had declared it before the application for termination was made. However, from the time of counsel’s declaration, the exceptional circumstances relied on were known and there was therefore no case for allowing leave to file a supplementary submission which would state that fact. The very short decision does not discuss the steps that led to that conclusion but it seems that the thinking was that if leave were granted, the Complainant would only be saying in its supplementary submission something that the tribunal already knew, but which was inconsistent with the original formulation of the claim. In any event it seems undesirable in a general sense to allow a party to re-plead a case with such a substantial departure from its original position. So the Complainant lost its application to terminate the proceedings and also its application to file a supplementary submission.
The conclusion must be, again, that parties and their advisers should get their house in order and get all of the facts marshalled and assessed before filing the Complaint. It will save a lot of trouble in the long run.
The short decision in this case may not be a basis for discerning wider principles, but it is submitted that the decision is also interesting in that it imports into the summary procedure of the UDRP, general due process principles requiring due notice to parties of what is being alleged against them, potential prejudice from changing the basic allegations and prejudice that might come from allowing the proceeding to be terminated so that the Complainant can start again. As such the decision is a valuable one.