Transact Network Limited v. MobiStub LLC
Claim Number: FA0808001221820
Complainant is Transact Network Limited (“Complainant”), represented by Thomas
V. Reichert, of Bird, Marella, Boxer, Wolpert, Nessim, Drooks
& Lincenberg, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <transactnetwork.com> and <transactnetwork.net>, 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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 22, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 25, 2008.
On August 25, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <transactnetwork.com> and <transactnetwork.net> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. 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 September 3, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 23, 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 postmaster@transactnetwork.com and postmaster@transactnetwork.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 14, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <transactnetwork.com> and <transactnetwork.net> domain names are identical to Complainant’s TRANSACTNETWORK mark.
2. Respondent does not have any rights or legitimate interests in the <transactnetwork.com> and <transactnetwork.net> domain names.
3. Respondent registered and used the <transactnetwork.com> and <transactnetwork.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Transact Network
Limited, is an “e-money business” that conducts its business online. Complainant operates under the “Transact
Network” tradename.
Respondent, MobiStub LLC, is
owned and operated by Miles Paschini, former founder and director of Transact
Network Limited. The WHOIS information
lists Miles Paschini as the administrative contact for both of the <transactnetwork.com> and <transactnetwork.net>
domain names. As such, the Panel will
refer to MobiStub LLC and Miles Paschini interchangably
as Respondent.
Complainant admits that Respondent was instrumental in the naming of Complainant and was placed in charge of registering the <transactnetwork.com> and <transactnetwork.net> domain names for use in Complainant’s business. In August 2008, a dispute arose between Miles Paschini and Complainant in which the two parties chose to dissolve their relationship. As the <transactnetwork.com> and <transactnetwork.net> domain names were registered by Respondent, Complainant has been unable to access the domain names since the dissolution.
Paragraph 15(a) of 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."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(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.
Complainant acknowledges that Respondent, Miles Paschini, was a founding member and director of Complainant’s business. At the time that Respondent served as director, Complainant adopted the name Transact Network Limited at the request of Respondent. Complainant was formed to provide an “e-money business” through the Internet. In furtherance of this business, Respondent registered the <transactnetwork.com> and <transactnetwork.net> domain names.
According to Complainant, the relationship between Mr. Paschini and Complainant dissolved in August of 2008. At the dissolution of the relationship, Mr. Paschini maintained control of the disputed domain names and has not relinquished control since. Complainant urges the Panel to find that Complainant has common law rights in the trade name, “Transact Network,” and that Respondent has registered and used the domain name in bad faith.
However, the Panel finds that this dispute is not a case of cyber-squatting as presented by Complainant. Rather this is a business dispute between a founder and former director and the company he helped to start. As a result, this matter involves a subject matter that is outside the scope of the UDRP and therefore the purview of this Panel. Mainly, this case centers on a potential breach of fiduciary duty on the part of Miles Paschini or possibly a contractual dispute, whether written or oral, between the parties. Such a dispute requires testimony and evidence that is beyond the power of this Panel. Previous panels have held, as this Panel holds, that these facts preclude a finding on the merits under the UDRP. See Fuze Beverage, LLC v. CGEYE, Inc., FA 844252 (Nat. Arb. Forum Jan. 8, 2007) (concluding that when the respondent registers a domain name on behalf of the complainant and then refuses to relinquish control over the domain name registration, the cause of action is for breach of contract or fiduciary duty and is thus outside the scope of the UDRP Policy); see also Thread.com, LLC v. Poploff, D2000-1470 (WIPO Jan. 5, 2001) (finding that the Policy did not apply to a business dispute because trying “to shoehorn what is essentially a business dispute between former partners into a proceeding to adjudicate cyber-squatting is, at its core, misguided, if not a misuse of the Policy”); see also Frazier Winery LLC v. Hernandez, FA 841081 (Nat. Arb. Forum Dec. 27, 2006) (holding that disputes arising out of a business relationship between the complainant and respondent regarding control over the domain name registration are outside the scope of the UDRP Policy).
As a result, the Panel chooses to forego analysis under the UDRP
and dismiss the Complaint.
The Panel concludes that relief shall be DENIED.
__________________________________________________________________
Honorable Paul A. Dorf (Ret.), Panelist
Dated: October 27, 2008
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