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Mobile Communication Service Inc. v. WebReg, RN Case No. D2005-1304

Mobile Communication Service Inc. v. WebReg, RN Case No. D2005-1304

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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION

Mobile Communication Service Inc. v. WebReg, RN Case No. D2005-1304

1. The Parties Complainant is Mobile Communication Service Inc., doing business as Mobilcom, Meadville, Pennsylvania, United States of America, appearing pro se. Respondent is WebReg, RN, Washington, DC, United States of America, represented by Ari Goldberger of the ESQwire.com Law Firm, Cherry Hill, New Jersey, United States of America.

2. The Domain Name an
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION

Mobile Communication Service Inc. v. WebReg, RN Case No. D2005-1304

1. The Parties Complainant is Mobile Communication Service Inc., doing business as Mobilcom, Meadville, Pennsylvania, United States of America, appearing pro se. Respondent is WebReg, RN, Washington, DC, United States of America, represented by Ari Goldberger of the ESQwire.com Law Firm, Cherry Hill, New Jersey, United States of America.

2. The Domain Name an

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Published by: LEX-57 the lex engine on Dec 13, 2010
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01/06/2011

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WIPO Arbitration and Mediation Center 
 
ADMINISTRATIVE PANEL DECISION
Mobile Communication Service Inc. v. WebReg, RNCase No. D2005-1304
 
1. The Parties
Complainant is Mobile Communication Service Inc., doing business as Mobilcom,Meadville, Pennsylvania, United States of America, appearing
 pro se.
Respondent is WebReg, RN, Washington, DC, United States of America, represented byAri Goldberger of the ESQwire.com Law Firm, Cherry Hill, New Jersey,United States of America. 
2. The Domain Name and Registrar
The disputed domain name <mobilcom.com> (the “Domain Name”) is registered with Network Solutions, LLC (the “Registrar”). 
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”)on December 15, 2005. On December 19, 2005, the Center transmitted by email to theRegistrar a request for registrar verification; on December 21, 2005, the Registrar transmitted by email to the Center its verification response confirming that Respondent is
 
listed as the registrant and providing the contact details for the administrative, billing, andtechnical contact. The Center verified that the Complaint satisfied the formalrequirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), theRules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and theWIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy.In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notifiedRespondent of the Complaint, and the proceedings commenced on December 29, 2005.In accordance with the Rules, paragraph 5(a), the due date for Response was January 18,2006. There is no dispute that Respondent received timely notice of the Center’snotification of the commencement of the proceedings.Respondent did not submit a timely Response. Accordingly, the Center notifiedRespondent’s default on January 19, 2006.Later on January 19, 2006, the Center received an email from Respondent’s counselrequesting, under the “exceptional cases” provision of paragraph 5(d) of the Rules, anextension of the deadline by which Respondent would be permitted to submit itsResponse. Respondent based its request on an alleged clerical error by which it hadentered the deadline in its calendar as January 28, 2006, instead of the actual deadline,January 18, 2006. Respondent’s counsel further stated that he would submit a Response“as soon as possible” and requested that the Center grant an extension untilJanuary 28, 2006.The Center acknowledged receipt of Respondent’s counsel’s email communication onFriday, January 20, 2006, and referred Respondent’s request for an extension of the filingdeadline to Complainant (because paragraph 5(d) of the Rules permits extensions if agreed to by the parties or the provider). On Monday, January 23, 2006, Complainantinformed the Center that it did not consent to Respondent’s request. The Center informedthe parties on Tuesday, January 24, 2006, that the Center would proceed to appoint thePanel. The Center also informed Respondent that it should file its submission, but that thedecision of whether to accept the Response would remain in the sole discretion of thePanel.On Friday, January 27, 2006, Respondent submitted a Petition for Consideration of Late-Filed Response, along with a copy of the proposed Response. In its Petition, Respondentrepeated the reason for its late filing, claiming that it only learned of the actual deadlineon January 19, 2006, when it received the notice of default from the Center. Respondentfurther claimed that it could not file its submission immediately upon learning of thedefault because its counsel was engaged in another WIPO filing, which was due onJanuary 25, 2006. Respondent therefore requested that the Panel accept the late-filedResponse in the interest of “fairness and substantial justice” pursuant to the Panel’sauthority under paragraph 10(c) of the Rules, which allows the Panel to “extend, inexceptional cases, a period of time fixed by these Rules.”
 
The Center appointed David H. Bernstein as the sole panelist in this matter onJanuary 30, 2006. The Panel finds that it was properly constituted. The Panel hassubmitted the Statement of Acceptance and Declaration of Impartiality andIndependence, as required by the Center to ensure compliance with the Rules, paragraph7. Because of the complex procedural issue raised by this late-filed Response, the Panelextended the time for decision from February 13, 2006, to February 24, 2006, pursuant to paragraph 10(c) of the Rules.This procedural history presents the difficult question of whether Respondent’s late-filedResponse should be accepted. This issue was discussed at some length in
1099 Pro, Inc.v. Convey Compliance Systems, Inc.
, WIPO Case No. D2003-0033(April 1, 2003). In that case, the three-member Panel (on which this Panelist sat) wrote:“In the early days of the Policy, some panels were willing to accept late-filed responses if they were submitted prior to the appointment of the panel on the theory that the Ruleswere still relatively new and some flexibility should be shown, especially when there wasno prejudice.
See,
 
e.g.
,
Talk City, Inc. v. Michael Robertson
,WIPO Case No. D2000-0009(February 29, 2000). Now, more than three years later, the Internet community hashad a wealth of experience with the Rules, making it appropriate to revisit this approach.“On this question, there is a split amongst the Panel. In one Panelist’s view, default proceedings under the Policy should be avoided when it is reasonable to do so, takinginto account paragraph 10(b) of the Rules providing that, ‘[t]he Panel shall ensure that theParties are treated with equality and that each Party is given a fair opportunity to presentits case.’ In this proceeding, since there is no apparent prejudice to Complainant from aninitial Response filed on the date of the default notification, followed by an AmendedResponse one week later, one Panelist would accept the Amended Response.“The majority, however, believes that it is important to apply the Rules as written, absenta good reason. Otherwise, parties will feel free to disregard deadlines and Respondentswill regularly submit late responses. Thus, absent good cause, the majority of the Panelholds that late-filed responses should be disregarded.
1
In the
1099 Pro
case, the panel ultimately held that respondent’s assertion that it did notfile its response on time because it was its “busiest time of our season” was not goodcause for missing the deadline. The panel thus rejected the late-filed responses. Some panels since then have taken a similar approach. See,
e.g., Museum of Science v. Jason Dare
,WIPO Case No. D2004-0614(October 11, 2004) (rejecting 16-day delay because“[m]any panels have disregarded late-filed responses making clear that it is important toapply the Rules as written, absent a good reason, otherwise parties will feel free todisregard deadlines and [r]espondents will regularly submit late responses”);
 Fashiontv.com GmbH v. Chris Olic
,WIPO Case No. D2005-0994(December 8, 2005)(rejecting response filed two days late when only cause given was that respondent had“‘difficulties’ in obtaining evidence, without any explanation of what those ‘difficulties’were”);
OMV AG v. SC Mondokommerz SRL
,WIPO Case No. DRO2005-0005(January5, 2006) (declining to find exceptional circumstances where respondent’s excuse for 

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