Fleet Direct v. Mackenzie Skyler & Co.
and Robertson Brad
Claim Number: FA0710001105463
PARTIES
Complainant
is Fleet Direct (“Complainant”),
represented by Martin Flick, of Fleet Direct,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fleetdirect.net>, registered with Register.com, Inc.
PANEL
The undersigned certifies that she has acted independently and impartially, and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Carol Stoner, Esq. as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 30, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 5, 2007. At the request of the National Arbitration Forum, Complainant amended the Complaint on November 9, 2007, so as to: list the name Martin Flick in an attention line, as part of the address field; link Respondent names Mackenzie Skyler & Co. with the name Brad Robertson, via the word “and”; attach a Table of Contents for all evidence; attach a State of Arizona Trade Name Certification; append a copy of the ICANN Policy; and to submit the required filing fee of $1,300.00.
On October 31, 2007, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <fleetdirect.net> domain name is registered with Register.com, Inc. and that the Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.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 November 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 3, 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@fleetdirect.net by e-mail.
A timely Response was received and determined to be complete on November 29, 2007.
An additional submission from Complainant was received and determined to be complete on December 3, 2007.
On December 06, 2007, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Carol M. Stoner, Esq., as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name <fleetdirect.net> be transferred from Respondent to Complainant. Respondent requests that Complainant be sanctioned for reverse domain name hijacking and for improper use of the forum to circumnavigate civil matters which are outside of the scope of the forum.
PARTIES’ CONTENTIONS
A. Complainant
Complainant alleges as follows:
FleetDirect
Transportation Services (hereinafter known as “FleetDirect”) is the registered
trade name (
In
accordance with the State of
Brad Robertson was hired as a full time contractor by FleetDirect in 2001. He voluntarily left that position in July of 2007. FleetDirect assigned to Brad Robertson the task of developing the web site <fleetdirect.net> for usage in its business. The developed website has been in continuous operation since 2001.
Complainant contends that, also in 2001, Brad Robertson was asked to register the domain name <fleetdirect.net> on behalf of FleetDirect, who paid for the initial registration and all renewals of the domain name. Credit card receipts for these payments are available.
Complainant alleges that Mr. Robertson registered the disputed domain name in his own name, without the knowledge of FleetDirect. Mr. Robertson has refused to relinquish ownership of the domain name, but offered to exchange the name for a large sum of money.
Mr. Robertson has never operated a business similar to that of FleetDirect. Neither has Mr. Robertson operated a business known by a name, which included the words “Fleet” or “Direct.”
B. Respondent
Respondent contends as follows:
Complainant
does not have any trademark or service marks, but only a mere trade name, filed
with the Secretary of State. A trade name in
Respondent contends that Complainant has no rights or legitimate interests in respect of the domain name as Respondent is the legal owner of the domain name <fleetdirect.net>. Respondent concedes that he authorized the Complainant to use the domain name, but only concurrently with a planned business operation as a software developer for the fleet industry. Subsequently, Respondent terminated Complainant’s rights to use the domain name, due to a series of business disagreements.
Respondent further contends that Respondent registered and used the disputed domain name in good faith. The domain name was initially registered for the joint purpose of use by a software developer and a small truck repair service. The software business was never established and an agreement regarding subsequent usage of the name was never reached.
Respondent requests that Complaint be sanctioned for reverse hijacking of domain name and for improper use of forum to circumnavigate civil matters, outside the scope of the forum.
C. Additional Submissions
Complainant, in its timely Additional Submission, contends as follows:
Complainant’s Additional Submissions consists largely of e-mails from Complainant Martin Flick (hereinafter “Flick”) and responses by his stepson Brad Robertson, (hereinafter “Robertson”). These e-mails elucidate the family nature of the business.
That is, FleetDirect is allegedly owned and operated by Flick (MF, INC.) and his wife, Judith Robertson. Robertson is an employee and the son of Judith Robertson and the stepson of Martin Flick. Flick, in a series of flip-flopping e-mails contends alternately that “your mother and I gave you 25% of the equity in FleetDirect...which you were to receive when the business was sold” and that Robertson was never an “active owner” and thus was not a shareowner entitled to a buy-out of his equity. Robertson, in his e-mails, maintains that Flick gave him a 25% equity position in the business, inclusive of land.
Flick appends notarized letters from employees citing that they were aware that Robertson’s duties consisted of software development for the service and accounting department and also appends a copy of an invoice showing Robertson received group healthcare, paid for by FleetDirect.
Flick appends an e-mail from Robertson asking to be reimbursed for the domain name and a copy of reimbursement check. Also appended is a copy of the letter of resignation from Robertson, dated June 26, 2007.
Complainant’s Additional Submissions include copies of e-mails from Robertson indicating he will return company property and access codes to FleetDirect’s computer system, in exchange for a buyout of ownership equity and other monies, as well as e-mails to Robertson from Flick saying that he will not meet his demands.
Flick appends demand letter to Robertson, demanding passwords and access codes and a response from Robertson stating that he has no information re: passwords, and later a list of passwords. Flick responds to Robertson that passwords are invalid, and have necessitated a great deal of time and monies to restore and secure the system.
Complainant’s Additional Submission further consists of an e-mail from Robertson stating that he is selling the disputed domain, or is willing to rent it, on a daily basis. Flick responds that these e-mails are extortions and threats and therefore are federal crimes. Flick states that he consulted with the FBI to discuss further actions. Flick further alleges that Robertson caused the deletion of Flick’s e-mails from July 27, 2007 through September 27, 2007.
Complainant in its’ Additional Submission, appends a demand letter from an attorney, offering a settlement agreement in which 1) Robertson returns all company property to FleetDirect; 2) FleetDirect assumes $ 5800.00 of personal expenses Robertson charged to FleetDirect; 3) Robertson agrees not to have contact with Ms. Robertson (Robertson’s mother), Mr. Flick (Robertson’s stepfather) FleetDirect, or any of its officers, employees, vendors, customers, or any individual or person having a business relationship with the same; and 4) Robertson agrees to remain available for contact should FleetDirect run into any security issues on any current systems; or alternately, the pursuance of civil and or criminal remedies against Robertson.
Additional Submissions also include copies of credit card statements alleging that Robertson made personal charges on a FleetDirect credit card and copies of an invoice for computer software hardware and labor.
Additional Submissions also includes an e-mail from Robertson dropping all claims, including equity interest, in return for an Executive Exit Package which includes forgiveness of loan amounts, payment of health benefits, reimbursement for $5000.00 of attorney fees, and non-disparagement agreements and releases by both sides. Upon a non-response by Complainant, Respondent sends an e-mail stating that he intends to pursue his equity interests, and also that he would give consideration to a fair and equitable settlement agreement. Respondent subsequently sends e-mails to Complainant Flick stating that “he is sorry that we couldn’t come to terms regarding the domain, and that he is shutting it down effective today” that is, November 9, 2007.
FINDINGS
The instant Complaint is outside the scope of the UDRP. Thus, Panel dismisses the Complaint in its entirety, and also dismisses Respondent’s request that Complainant be sanctioned for reverse domain name hi-jacking and improper use of the forum for non-jurisdictional civil matters.
DISCUSSION
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) the 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.
Preliminary Issue - Whether the
Complaint is within the Scope of the UDRP:
Respondent contends that he registered the <fleetdirect.net> domain name pursuant to an agreement entered between Complainant and Respondent, which allegedly provides for Respondent’s authorization to register the disputed domain name, develop an e-commerce website, and promote and license the website’s use by Complainant.
Respondent, in its’ Response, alludes that he is holding the domain name until his contractual issues with Complainant are resolved. In its’ Additional Submission, Complainant includes an ultimate e-mail from Respondent stating that he is shutting down FleetDirect’s disputed domain, because the parties could not reach an agreement. Additionally, the Complainant is alleging that Respondent is attempting to threaten and extort money from FleetDirect.
The Panel was influenced in its’ decision by the adversarial nature of the contents of the e-mails in Complainant’s Additional Submission, which e-mails serve as the only evidence of any actual agreements or understandings. This dispute regarding ownership of the domain name <fleetdirect.net> is based upon a series of conflicting e-mails, which iterate a series of debits and credits of time spent on, and off the job, charges of unauthorized expenses, purported loans and expected reimbursements. These debits and credits are set-off against the value of such intellectual property as software, website and domain names, whose ownership is disputed. Moreover, the Complainant uses the fuzzy words of “full time contractor” and “active owner” to describe the capacity of the parties, in lieu of the more generally recognized and understood terms of, independent contractor, employee, and shareholder. It is not the province of the Panel to sort out this morass.
This Panel thus rules that, Complainant’s submitted Complaint and Respondent’s cross-claims consist of a dispute involving the existence and interpretation of business agreements and understandings arising between Complainant and Respondent, which are clearly outside the scope of UDRP. See Latent Tech. Group, Inc. v. Fritchie, FA 95285 (Nat. Arb. Forum, Sept. 1, 2000) (dispute concerning employee’s registration of domain name in his own name and subsequent refusal to transfer it to employer raises issues of breach of contract and breach of fiduciary duty that are more appropriately decided in court, not before a UDRP panel); see also Discover New England v. Avanti Group, Inc. FA 123886 (Nat. Arb. Forum, Nov. 6, 2002) (finding the dispute outside the scope of the UDRP because the dispute centered on the interpretation of contractual language and whether or not a breach occurred); see also Everingham Bros. Bait Co. v. Contigo Visual, FA 440219 (Nat. Arb. Forum, Apr. 27, 2005) (“The Panel finds that this matter is outside the scope of the Policy because it involves a business dispute between two parties. The UDRP was implemented to address abusive cybersquatting, not contractual or legitimate business disputes.”).
Because the contentions of the parties fall outside the scope of the UDRP Policy, the Panel will make no analysis as to Paragraph 4(a) issues of the Policy, that is: (1) Identical and/or Confusingly Similar; (2) Rights or Legitimate Interests; and (3) Registration and Use in Bad Faith.
DECISION
The Panel rules that Complainant’s submitted dispute is outside the scope of the UDRP. Thus, the Panel also rules that the Complaint is dismissed, in its entirety. The Panel also denies Respondent’s request that the Panel sanction Complainant for reverse domain name hi-jacking and improper use of the forum.
Accordingly, it is Ordered that the <fleetdirect.net> domain name shall NOT be TRANSFERRED from Respondent to Complainant.
Carol M. Stoner,
Esq., Panelist
Dated: December 20, 2007
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