EazyPaper Inc. v. Greg
Atkinson
Claim Number: FA0710001093103
PARTIES
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.
PANEL
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.
PROCEDURAL HISTORY
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 postmaster@eazypaper.com and
postmaster@eazyresume.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.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. 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’.
B. Respondent
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.
FINDINGS
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.
DECISION
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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