J&M Manufacturing, LLC / Jesse Myers v. marwan taweel / 1982
Claim Number: FA200400189423
Complainant is J&M Manufacturing, LLC / Jesse Myers (“Complainant”), represented by Mark C. Johnson of Johnson Dalal, Florida, USA. Respondent is marwan taweel / 1982 (“Respondent”), represented by Andrew J. Mongelluzzi of Clearwater Business Law LLC, Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <avidhemp.com> and <avidhemp.net> registered with Launchpad.com Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Héctor Ariel Manoff as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 29, 2020; the Forum received payment on April 29, 2020.
On April 30, 2020, Launchpad.com Inc. confirmed by e-mail to the Forum that the <avidhemp.com> and <avidhemp.net> domain names are registered with Launchpad.com Inc. and that Respondent is the current registrant of the names. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 5, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@avidhemp.com, postmaster@avidhemp.net. Also on May 5, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on June 1, 2020.
On June 8, 2020, an Additional Submission by the Complainant was received.
On June 8, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Héctor Ariel Manoff as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
1- Jesse Myers is the sole majority owner/manager of J&M Manufacturing LLC d/b/a Avid Hemp.
2- J&M was founded in 2017 and specializes in offering high-quality non-medicated skin care preparations and products.
3- J&M Manufacturing LLC has been using the AVID HEMP Mark in connection with the marketing, sale, and offering for sale of CBD products, and has common law rights in the AVID HEMP Mark dating back to at least 2017.
4- The domain names <avidhemp.com> and <avidhemp.net> are confusingly similar to the AVID HEMP Mark.
5- Respondent was previously an employee of J&M as a technical support and manufacturing supervisor.
6- Respondent was in charge of registering the Domain Names under the names of Complainants and of managing the Domain Names.
7- Upon discovering that Respondent had registered the Domain Names under his personal name, Complainant terminated Respondent and demanded that he transfer the Domain Names to Complainants.
B. Respondent
1- Complainant induced Respondent to enter into a partnership and business arrangement for a company to be known as J&M Manufacturing, LLC. (J&M stands for Jesse and Marwan). Thus, Complainant was Respondent’s former business partner.
2- Respondent claims ownership in <avidhemp.com> and <avidhemp.net>, which names Respondent registered through Launchpad, Inc. (HostGator) Launchpad.com Inc.
3- Complainant has no trademark rights on AVID HEMP.
4- Respondent developed marketing and was the creator of and owner of AVID HEMP pursuant to the business partnership and agreements of these parties.
5- Respondent allowed J&M Manufacturing, LLC (J&M) to use the name.
6- In 2019 the parties breached their partnership agreements.
7- There is a pending action, filed on May 21, 2020, between Complainant and Respondent .
8- In anticipation of setting up his own business, Respondent took the Avid Hemp name he had previously developed, and he registered two domain names: <avidhemp.com> and <avidhemp.net>. He then began the process to set up his business.
9- Respondent’s registration of the disputed domain names was made in good faith and in anticipation of opening a business for sales of natural products.
C. Additional Submissions
1- Complainant argues that Respondent fails to provide sufficient factual and legal support to justify suspension or dismissal of this proceeding.
2- Complainant argues that the case was filed by Respondent on May 21, 2020, less than two weeks prior to the undersigned date and only one week prior to the filing of its Response
After having reviewed both parties’ arguments and evidence, the Panel concludes that this dispute falls outside the scope of the Policy and should be decided by the Courts.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Business/Contractual Dispute Outside the Scope of the UDRP
Both parties allege to have rights on AVID HEMP.
Complainant argues to have used the name since 2017 although it has not filed sufficient evidence to prove it.
Respondent argues to be the creator of the name and have rights on the disputed domain names.
Both parties agree on the fact that they were involved together in a business relation in the past, even though it is not clear if as employer/employee or partners.
This Panel finds that both parties differ with respect to the main facts of the case. Prior decisions have considered that when it happens it is difficult for a Panel operating under the Rules to take a decision with respect of the real facts. See Estate of Malcolm McLaren v. Paul Nordstrom August, FA1304001492383 (Forum May 13, 2013) (“When the parties differ markedly with respect to the basic facts, and there is no clear and conclusive written evidence, it is difficult for a Panel operating under the Rules to determine which presentation of the facts is more credible. National courts are better equipped to take evidence and to evaluate its credibility”.)
In addition, the Panel believes that each party might have rights in the disputed domain names. It would not be an abusive cybersquatting case but a contractual or legitimate business dispute. Thus, it is outside the scope of the Policy. See Love v. Barnett, FA944826 (Forum May 14, 2007) (“A dispute, such as the present one, between parties who each have at least a prima facie case for rights in the disputed domain names is outside the scope of the Policy”.). See also Nicholas Reinhart v. Kathy Wetzel, Claim Number FA1604001671758. (”This Panel concludes that this dispute does not constitute a case of abusive registration but a case where a registered domain name is subject to a legitimate dispute. The Policy relegates all “legitimate disputes” to the courts. Thus, this case falls outside the scope of the Policy”).
Further, In Bracemart, LLC v. Drew Lima, the Panel declined to make any findings under the UDRP when there was evidence that both the complainant and the respondent at some point acted in an official capacity in the management of the company, and that “[b]ased upon this reasoning, the Panel concludes that the instant dispute relates to contractual interpretation and/or whether the relationship between Complainant and Respondent was one of employer-employee or one of partnership, which determination falls outside the scope of the Policy.” See FA 1494699 (Mar. 28, 2013).
This Panel concludes that this dispute does not constitute a case of abusive registration but a case where a registered domain name is subject to a legitimate dispute. The Policy relegates all “legitimate disputes” to the courts. Thus, this case falls outside the scope of the Policy
This dispute is outside the scope of the UDRP and the Panel dismisses the proceeding.
The Panel having found that the dispute is outside the scope of the UDRP, this proceeding is DISMISSED without prejudice.
Héctor Ariel Manoff, Panelist
Dated: June 18, 2020
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