EazyPaper Inc. v. Greg Atkinson
Claim Number: FA0710001093103
Complainant is EazyPaper Inc. (“Complainant”), represented by Wing
T. Yan, of Nelligan O'Brien Payne LLP,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <eazypaper.com> and <eazyresume.com>, registered with Schlund+Partner Ag.
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.
Debrett Gordon Lyons as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 11, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 18, 2007.
On October 12, 2007, Schlund+Partner Ag confirmed by e-mail to the National Arbitration Forum that the <eazypaper.com> and <eazyresume.com> domain names are registered with Schlund+Partner Ag and that the Respondent is the current registrant of the name. Schlund+Partner Ag has verified that Respondent is bound by the Schlund+Partner Ag 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 October 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 12, 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 firstname.lastname@example.org and email@example.com by e-mail.
A timely Response was received and determined to be complete on November 12, 2007.
On November 20, 2007, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Debrett G. Lyons as Panelist.
Complainant requests that the domain names be transferred from Respondent to Complainant.
Complainant asserts that the disputed domain names are identical to trademarks in which it has rights. Complainant references pending US Federal trademark applications for EAZYPAPER and EAZYRESUME, both filed on June 5, 2007. Complainant also references the disputed domain names which it states were registered in 2004 by Complainant to support corresponding website addresses through which it did business.
Complainant contends that Respondent was hired in September 2004 as a ‘contractor’, at a point in time after the registration of the <eazypaper.com> domain name and just prior to the registration of the <eazyresume.com> domain name.
Complainant delegated to Respondent responsibility for domain name management. Complainant states that ‘Respondent registered the domain name in his own name, but charged the registration and related fees to the Complainant’s corporate account. Furthermore, the Respondent moved “eazypaper.com” and “eazyresume.com” from the company’s account to his personal account without notifying, much less getting approval from the Complainant’.
Complainant claims to have dismissed Respondent in May 2007. Respondent retains administrative control of the disputed domain names and has refused to relinquish control over them. Complainant states its belief that ‘Respondent intended to misappropriate the disputed domain names from the beginning’.
Respondent states that he is a business partner of Complainant and owns 44% of the stock in Complainant’s business. Respondent maintains that he retains responsibility for the disputed domain names in the best interests of the shareholders since Complainant has engaged in ‘shareholder oppression’ and if Complainant gains control over the domain names ‘there is a risk that shareholders will never realize any return on their investment’.
Respondent goes on to state that ‘the issue is not one of trademark. The issue is that the Respondent is a business partner, which has strong legal grounding’.
Respondent denies that he was lawfully dismissed by Complainant and maintains an ongoing business connection between the parties.
Preliminary Issue No. 1: Procedural Deficiency
Although the Response was received in a
timely and complete manner, it is in violation of the National Arbitration
Forum’s Supplemental Rule 4(a) as it is in excess of the allowed ten pages. The
Response is seventeen pages.
Nonetheless, having read the Response, the Panel takes the view that it
is appropriate for it to take full account of Respondent’s submissions. See Strum
v. Nordic Net
Preliminary Issue No. 2: Potentially Outside the Scope of the Policy
A second preliminary question arises as to whether the Panel has a mandate to determine this Complaint. In the case of First Nationwide Exchange, Inc. v. Reskyu, FA 956937 (Nat. Arb. Forum May 26, 2007), it was said:
Based on the assertions of both parties, the Panel is clearly satisfied that this is not a case of cybersquatting, but rather a business dispute arising from which there is a question concerning the rightful ownership of the disputed domain name.
In this Panel’s opinion, the first matter which calls for consideration is whether the Complaint falls outside the scope of the Policy. In 1999, the World Intellectual Property Organisation (“WIPO”) produced a report in which it noted that good faith disputes between competing right holders or other competing legitimate interests over whether two names were misleadingly similar would not fall with in the scope of the UDRP.
Previous panels have found that disputes between employers and employees are outside the scope of the Policy and should be decided in a court of law. For example, in Latent Tech. Group, Inc. v. Fritchie, FA 95285 (Nat. Arb. Forum Sept. 1, 2000), the panel held that a dispute concerning an employee’s registration of a domain name in his own name and his subsequent refusal to transfer it to his employer raised issues of breach of contract and breach of fiduciary duty that were more appropriately resolved in court, not before a UDRP panel. Whilst the present facts involve a dispute between former business partners, the case could nonetheless be seen as analogous to the Latent Tech. Group, Inc. case.
The circumstances of Thread.com, LLC v. Poploff, WIPO Case D2000-1470, are closer to the current dispute, and there the panel refused to transfer the domain name, stating that the Policy did not apply because attempting “to shoehorn what is essentially a business dispute between former partners into a proceeding to adjudicate cybersquatting is, at its core, misguided, if not a misuse of the Policy.”
Additionally, in Discover
… … …
Again, in Draw-Tite, Inc. v. Plattsburgh Spring Inc., WIPO Case D2000-0017 it was said: “This Panel well recognizes that its jurisdiction is limited to providing a remedy in cases of ‘the abusive registration of domain names,’ or ‘Cybersquatting’ . . . Like any other tribunal, however, this Panel can determine whether it has jurisdiction only from the facts and arguments presented to it. In this case, Complainant did allege bad-faith use and registration of the domain name at issue. Had Complainant proved those allegations, there would be no proper question as to this Panel’s jurisdiction.”
In the present case, neither party has shown particular concern for the Policy or what it requires to be shown. The evidence on all material questions to be determined is lacking and the Panel considers that there would be ample weight in prior UDRP decisions to justify a ruling that the matter is properly one for another forum.
First Nationwide Exch., Inc. v. Reskyu, FA 956937 (Nat. Arb. Forum May 26, 2007). The facts of this Complaint are similar. The parties pay almost no regard to what is required of them under the Policy and Respondent goes so far as to characterize the matter as a business dispute. In Love v. Barnett, FA 944826 (Nat. Arb. Forum May 14, 2007), the panel found the dispute to be outside the scope of the Policy because the respondent could not be characterized as a cybersquatter or individual who registered and used the domain names at issue in bad faith. The panel stated the purpose of the Policy is not to resolve disputes between parties who might each have legitimate rights in a domain name. The purpose of the Policy is to protect trademark owners from cybersquatters, that is, from people who abuse the domain name system in a very specific way, which specific way is outlined in Paragraph 4(a) of the Policy. See also Frazier Winery LLC v. Hernandez, FA 841081 (Nat. Arb. Forum Jan. 2, 2007).
The Panel finds that the present dispute lies outside the scope of the Policy.
Having decided the preliminary point that this is a dispute outside the scope of the ICANN Policy and over which the Panel has no proper mandate, it is accordingly decided that the Complaint be DENIED.
Debrett Gordon Lyons, Panelist
Dated: December 3, 2007.
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