Manny Pasha v. John Koveos c/o bostonlimos
Claim Number: FA0708001065837
Complainant is Manny Pasha (“Complainant”), represented by Scott
T. Buckley, of Lawson & Weitzen, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bostonlimos.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
David P. Miranda and Bruce E. O'Connor as Panelists and David S. Safran, Chair.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 20, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 20, 2007.
On August 20, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <bostonlimos.com> domain name is registered with Godaddy.com, Inc. and that the Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 29, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 18, 2007 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
A timely Response was received and determined to be complete on September 18, 2007.
On September 24, 2007, a Reply to Respondents’ Response was received from Complainant and determined to be complete.
On September 26, 2007, pursuant to Complainant’s request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed David P. Miranda and Bruce E. O'Connor as Panelists and David S. Safran as Chair.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant asserted that Respondent fraudulently converted the domain <bostonlimos.com> from its ownership, that Respondent cannot show that it used a website at the domain <bostonlimos.com> for a bona fide offering of goods or services due to the conversion, and that the registration and use by Respondent is in bad faith since the conversion of ownership was for the purpose of ransoming it back to Complainant and to harm Complainant, it being known to Respondent to be a major source of Complainant’s business.
Respondent contends that this body lacks jurisdiction over the dispute between the parties which is one relating to whether or not a partnership existed between Complainant and Respondent which gave Respondent an ownership interest in the domain at issue and whether the transference of the domain <bostonlimos.com> from Complainant to Respondent was done with the willing consent of Complainant or within the legitimate rights of Respondent as a co-owning partner. Additionally, no domain name that is confusingly to a trademark in which Complainant holds rights exists since the domain name is not the name of Claimant’s company but rather is the same domain name which booked the limousines of both parties, which use was a bona fide offering of services via the domain <bostonlimos.com>.
C. Additional Submissions
In replying to Respondent’s Response, Complainant asserted that this body has jurisdiction over this dispute because it involves the abusive registration and use of a domain name. In support of this position, Complainant again asserts the issue of conversion and a lack of any ownership interest in the domain by Respondent as well as abuse of authority as an agent by Respondent since no partnership existed.
Complainant has raised issues of agency and conversion at the heart of the basis for transference. Respondent has raised issues of ownership and partnership at the heart of its claim to retain the domain name. No matter which party is correct, the Panel finds that factual inquires are involved that are outside of the scope of these proceedings.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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.
The objective of the ICANN Uniform Policy “is very narrow. It is concerned . . . with cybersquatting and not commonplace trade mark infringement issues and/or unfair competition issues, however flagrant.” Palm v. South China House of Technology Consultants, D2000-1492 (WIPO Dec. 18, 2000); see, e.g., Bloomberg v. Secaucus Group, FA 97077 (Nat. Arb. Forum June 7, 2001); see generally, R. Badgley, Domain Name Disputes § 5.02 (2002).
Moreover, because the issues of ownership of a domain, conversion, existence of partnership or agency relationships, and determination if acts of a party were within its authority involved in this case are highly fact dependent, “those inquiries are simply inappropriate for this Panel to address owing to the rather summary nature of an ICANN proceeding which precludes a complete factual record from being established and duly considered. The Estate of Marlon Brando v. WhoisGuard c/o WhoisGuard Protected, FA 503817 (Nat. Arb. Forum Aug. 29, 2005) (Issues centered on whether ownership of a domain had been transferred to Respondent).
Therefore, this Panel believes that this matter is outside of the scope of an ICANN proceeding, and must be left to adjudication before an appropriate court and not to an ICANN administrative panel.
Consequently, this Panel rules that it is without jurisdiction to decide this matter.
Thus, all consideration of any of the factors under the Policy is now moot.
The Complaint is hereby DISMISSED for lack of jurisdiction.
David S. Safran, Panel Chair
Bruce E. O’Connor, Panelist
David P. Miranda, Panelist
Dated: October 9, 2007
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National Arbitration Forum
 Even if this Panel were to find that it had jurisdiction in the matter, the contrary proofs of the parties as to ownership illustrate that Complainant cannot show that it has rights in the alleged trademark as required by ¶4(a)(1) of the Policy.