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Discretion to Suspend or Terminate a Proceeding

Rule 18(a) of the Rules of the Policy authorizes the Panel at its discretion to suspend or terminate the proceeding, or to proceed to a decision in the event of any legal proceedings initiated prior to or during an administrative proceeding. It imports into the proceedings the familiar prescript of judicial economy exercised in a court of law. The Respondent in BD Real Hoteles, SA de C.V. v. Media Insights aka Media Insight, D2009-0958 (WIPO September 15, 2009) advanced two reasons for terminating the proceeding, a concurrent court proceeding and complexity of facts.

Generally, it makes no sense to proceed to decision in a second proceeding where there is a prior action pending in which the same issues are before a court. However, in BD Real Hoteles, the Complainant had evidently carved out the domain name dispute from the issues before the district court because the Panel notes that the “filing of the Complaint was done in accordance with a court order, that the matter be referred to arbitration under the Policy despite the pendency of that action.” The Panel declined the Respondent’s invitation to terminate the proceeding despite a pending motion for summary judgment filed in the concurrent court proceedings. Whatever the issues sought to be resolved in the summary judgment they did not include the domain names. Therefore, there was not “a sufficient reason for the Panel to suspend or terminate the proceedings in this case.”

The argument that factual complexity is inappropriate for UDRP resolution depends on the nature of the facts. A congeries of facts is not necessarily complex for being many or for being “hotly disputed.” It is “not uncommon for cases under the Policy to involve varying levels of factual complexity. The Panel does not consider that complexity (however defined) in itself compels a Panel not to proceed to a decision.” The question is whether “there is a sufficient dispute about complex facts, directly relating to issues of cybersquatting, which would be difficult for the Panel to resolve without further submissions, interrogation or inquiry. Such further inquiry is generally inconsistent with the purpose of the Policy, which is to provide an expeditious and summary proceeding to claims of cybersquatting.” However, where the complexity relates not to cybersquatting but to the relationship of the parties there is no reason to abdicate the authority to decide. If the respondent has no rights or legitimate interests in the domain name it is appropriate to determine whether the registration was abusive.

The non-abdication view comes from a line of cases most clearly set forth in Bootie Brewing Company v. Deanna D. Ward and Grabebootie Inc., D2003-0185 (WIPO May 22, 2002). A concurring opinion expressed some hesitation but joined with the majority in finding that “just because the record is complex does not mean that the Panel should decline to review it.” Rather, “the Panel’s obligation when faced with such disputed facts is to make the best findings it can, by a preponderance of the evidence, based on the record submitted,” citing as precedent a couple of early cases in which the facts were hotly contested. Bootie Brewing, however, goes further in dealing with how such facts are to be treated.

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