NAF panel rejects supplemental filing in AOL Case

A National Arbitration Forum (NAF) panel has issued an interesting decision that provides important comments on one of its rules that permits parties to submit supplemental filings. The panel argued that the rule is inconsistent with ICANN's Uniform Domain Name Dispute Resolution Policy which grants panellists the discretion whether to accept late filings.

The decision was made in America Online Inc v Adrian Paul Miles aka AD2000D.com, in which the panel found that Miles had registered and used four domain names in bad faith: 'AIM5.com', 'AOLCybercafe.com', 'AOLInternetcafe.com' and 'AOLnetcafe.com'. Miles had submitted a supplemental filing pursuant to NAF Supplemental Rule 7 which permits a party to submit additional written statements or exhibits within five days of the date the response was due or submitted.

The AOL panel criticized the recent decision in The Prudential Insurance Company of America v Rich Arzaga Marketing Company where the NAF panel accepted supplemental filings on the basis that it was required to. The AOL panel stated that it:

"believes that NAF Supplemental Rule 7 is inconsistent with the [UDRP], that it goes beyond what has been mandated and defined in the policy, and that no provider can encroach upon the broad discretion given to the panel by the policy and the uniform rules."

The panel declined to review the defendant's additional submission, and decided the case based solely on AOL's complaint and the defendant's original response.

Two of the three panellists in the AOL Case had previously permitted supplemental filings in Williams, Babbitt & Weisman Inc v Ultimate Search. In that case, however, both the complainant and respondent had submitted additional material.

It remains to be seen whether this case will have an impact on the acceptance of supplemental filings by other NAF panels. The case highlights the sharp difference in opinion between those panellists who regularly accept supplemental filings, those who review them on a case-by-case basis, and those who flatly reject all supplemental filings.

Miles has posted a response to the panel's decision on ICANNWatch.

James L Bikoff and Patrick L Jones, Silverberg Goldman & Bikoff LLP, Washington DC

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