SeeMore Putter Company v. RWS c/o Adrian Smith
Claim Number: FA0807001213524
Complainant is SeeMore Putter Company (“Complainant”), represented by Stephen
J. Strauss, of Fulwider Patton LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <seemoreputters.com>, registered with Tucows 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 1, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 3, 2008.
On July 2, 2008, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <seemoreputters.com> domain name is registered with Tucows Inc. and that the Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is bound by the Tucows 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 July 7, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 28, 2008 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 by e-mail.
A timely Response was received and determined to be complete on July 9, 2008.
A timely Additional Submission was received from Complainant on July 11, 2008 and was determined to comply with the National Arbitration Forum’s Supplemental Rule 7.
On July 17, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Since at least 1995, Complainant and its predecessor-in-interest have been in the business of manufacturing, distributing, advertising and selling golf clubs and accessories, all under the trademarks SEEMORE and SEEMORE PUTTER.
Complainant’s SEEMORE and SEEMORE PUTTER golf
clubs have been sold all over the world, including in the
Complainant is the owner, by assignment, of United States Trademark Registration No. 2,065,252 covering the mark SEEMORE, issued by the United States Patent and Trademark Office on May 27, 1997.
Complainant operates four websites under the mark SEEMORE (at <seemore.com>, <seemoregolf.co.uk>, <seemore.jp> and <seemoregolf.co.kr>) which promotes the sale of its unique golf clubs.
Respondent is a former distributor of
Complainant's SEEMORE golf clubs and products in the
Respondent is no longer affiliated with Complainant and is no longer authorized to use Complainant’s SEEMORE and SEEMORE PUTTER marks or to sell Complainant’s SEEMORE products in commerce.
Whatever rights Respondent may have had in the SEEMORE mark, as a distributor of Complainant's products, terminated when Respondent's distributorship expired in December 2005.
Complainant's predecessor-in-interest never approved or authorized Respondent's use or registration of the SEEMORE and SEEMORE PUTTER marks as a domain name.
On March 2, 2004, Respondent registered the domain name <seemoreputters.com> without any authorization from Complainant's predecessor-in-interest.
The same domain name incorporates, in its entirety, Complainant’s SEEMORE and SEEMORE PUTTER trademarks.
Respondent's use of the <seemoreputters.com> domain name is not in connection with the bona fide offering of any goods or services.
Respondent has not been commonly known by the contested domain name.
Respondent’s use of the <seemoreputters.com> domain name, which redirects Internet users to a website offering professional web design and consulting services (content unrelated to Complainant's business or golf clubs), is not in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Respondent is using the <seemoreputters.com> domain in bad faith under Paragraph 4(b)(iii) of the Policy by deliberately disrupting Complainant’s business.
into a Memorandum of Understanding with the SeeMore Company on February 5, 2004,
for exclusive rights to distribute SeeMore Putters in the
The MOU was never terminated by the SeeMore Company in accordance with its terms.
Respondent continued to sell excess inventory via the <seemoreputters.com> domain name, which was not in breach of the MOU, because Respondent had the right to dispose of any excess stock in whatever manner it saw fit.
Complainant failed to carry out satisfactory due diligence at the time of its acquisition of the Company to assess existing contracts.
There was no
restriction stated by Complainant’s predecessor-in-interest regarding the
method of marketing the SeeMore Putting System (“the Putter”) within the
Indeed, Respondent was actively encouraged to use all available methods of sales and
marketing to sell as many Putters as possible within
It is reasonable to expect a marketer such as Respondent to use the Internet to market its
products, and it is equally reasonable to expect it to use a domain name that incorporates the name of the product, in this instance <seemoreputters.com>.
Respondent invested a substantial amount of money in the development of the <seemoreputters.com> website and an associated nationwide advertising campaign to increase brand awareness of the SEEMORE putter.
When the <seemoreputters.com> domain was decommissioned, any Internet traffic was redirected to the London Web Factory so that people could easily find the technical and administrative contact.
Furthermore, the <seemoreputters.com> domain has been locked for some time, so that Respondent does not have the ability to redirect Internet traffic to anywhere else.
Complainant implies that Respondent violated Complainant’s rights knowingly and in an underhanded way, which is demonstrably untrue.
The relationship between Respondent and the Company was excellent and discussions regarding the marketing of the “SEEMORE” brand were both open and productive.
At no time was the domain name <seemoreputters.com> used in bad faith.
In 2006, Complainant approached Respondent to buy out the remainder of his stock at cost price and further requested that the domain <seemoreputters.com> be shut down immediately.
Respondent made a fair a reasonable offer for Complainant to purchase the domain name <seemoreputters.com>.
This offer, which included
goodwill and the reasonable costs that had been incurred designing the website
and marketing the Putter to date in the
C. Additional Submissions
Complainant, in its Additional Submission, makes the following further allegations:
Respondent was never specifically authorized by Complainant or its predecessor-in-interest to register or use the <seemoreputters.com> domain name.
Although Respondent claims that it made a “fair and reasonable offer" to Complainant's predecessor-in-interest for the sale of the <seemoreputters.com> domain, in fact the specific offer, not mentioned in the Response, was $10,000.00, which is an amount far in excess of Respondent’s out-of-pocket expenses to register the domain name.
DISCUSSION AND FINDINGS
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.”
From our review of the submissions of the
parties, it is clear that this is not a dispute within the contemplation of the
Policy, which is intended solely to address instances of “cyber-squatting,”
defined as the abusive registration and use of Internet domain names. Rather,
this is a dispute as to the proper interpretation and application of a business
agreement, which should be confided to the jurisdiction of the appropriate
local or national courts. See
[T]he question presented is outside the purview of the UDRP, in that it involves questions of the extent of rights transferred and retained under a stock purchase agreement. Such questions should be determined in an arbitration conducted by agreement of the parties or by a court of law. Accordingly, the Complaint must be dismissed.
See also Nintendo of Am. Inc. v. Jones, D2000-0998 (WIPO Nov. 17, 2000):
It is not the function of an ICANN Administrative Panel to resolve all issues concerning the use of intellectual property rights. Matters beyond the narrow purview of the Policy are for the courts of appropriate jurisdictions.
For the reasons indicated, it is Ordered that the Complaint herein is hereby DISMISSED.
Terry F. Peppard, Panelist
Dated: July 29, 2008
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