Hillsboro Club Inc. v. 901
Claim Number: FA0809001225100
PARTIES
Complainant is Hillsboro Club Inc. (“Complainant”), represented by James
McRae, of Hillsboro Club Inc.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hillsboroclub.org>, registered with Domain
People Inc.
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.
Michael Albert as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on September 18, 2008; the
National Arbitration Forum received a hard copy of the Complaint on September 22, 2008.
On October 8, 2008, Domain People Inc. confirmed by e-mail to the
National Arbitration Forum that the <hillsboroclub.org> domain name is
registered with Domain People Inc. and
that Respondent is the current registrant of the name. Domain People
Inc. has verified that Respondent is bound by the Domain People 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 October 17, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of November 6, 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@hillsboroclub.org by
e-mail.
A timely Response was received and determined to be complete on November 5, 2008.
An Additional Submission was received from Complainant on November 10,
2008 and was determined to be timely and complete pursuant to Supplemental Rule
7.
On November 14, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Michael Albert as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends that the Hillsboro Club is a private beach and
tennis club founded in 1925, and claims that it has used the HILLSBORO CLUB
mark in commerce for at least the past ten years. Complainant provided Exhibits of its
membership directory, calendar of events, and Club brochure, all containing the
HILLSBORO CLUB mark. Complainant also
provided a copy of its registration of the fictitious name THE HILLSBORO CLUB
with the state of
Complainant contends that Mr. John Garcia, owner of Respondent,
registered the disputed domain name on Complainant’s behalf, and that Mr.
Garcia managed the disputed domain name and the corresponding website for eight
years as an outside contractor. In
January 2008, Complainant contends that it terminated Mr. Garcia’s services and
requested transfer of the disputed domain name, but that Mr. Garcia refused
this request. Complainant asserts that
it offered to pay documented costs relating to the domain name registration,
but refuses to pay the $2500 demanded by Respondent because it has not received
adequate supporting documentation. Complainant contends that Respondent has
blocked control of the website corresponding to the disputed domain name and
thereby interfered with Complainant’s ability to manage and update the website.
B. Respondent
Respondent does not contest that Complainant has rights in the
HILLSBORO CLUB mark. Respondent concurs with Complainant that Mr. Garcia
registered and managed the disputed domain name and corresponding website. Respondent contends that Complainant and Mr.
Garcia agreed that Mr. Garcia would register and pay for the disputed domain name
in order to shield Complainant from potential legal liability relating to the
corresponding website. Respondent
asserts that audits and billing practices from the past ten years uniformly
show that Mr. Garcia has been the owner of the disputed domain name and argues
that the doctrine of laches prevents Complainant from now objecting to that
ownership.
Respondent contends that, when it was asked to transfer the disputed
domain name to Complainant, it offered to do so provided that Complainant pay
an outstanding bill of $1,010 for Mr. Garcia’s services and a lump sum of
$2,500, representing approximately one quarter of Mr. Garcia’s total claimed registration
and hosting expenses for the disputed domain name and the associated website. Respondent supports its measure of expenses
with records of a $35 registration renewal for the disputed domain name and
credit card bills showing payments to the host ISP, ValueWeb, of roughly $85
and $105 for the two months represented.
Respondent disputes Complainant’s assertion that Respondent has
interfered with Complainant’s control of the website associated with the
disputed domain name, stating that the ISP, ValueWeb, was responsible for
changes to the site management interface and the resetting of the account’s password. Respondent has included email correspondence
from July 2008 showing that Mr. Garcia promptly assisted representatives of
Complainant in resolving a password issue.
C. Additional Submission
In Complainant’s Additional Submission, Complainant states that it has
no knowledge of an agreement with Mr. Garcia that he would register and own the
disputed domain name. It also provides
documentation of its correspondence with Mr. Garcia showing that Mr. Garcia did
block access to site management tools by changing the password, returning
control after Complainant told him that his actions were illegal. Complainant denies that the $1,010 bill
reflects services actually rendered to Complainant. Complainant states that, based upon the
documentation provided, it is willing to pay $280 to cover renewal fees for the
domain name, but does not offer to compensate Mr. Garcia for web hosting costs.
FINDINGS
The facts before the Panel describe a dispute
that is outside the scope of the Policy.
This is not a case of abusive registration of a domain name. Respondent’s owner Mr. Garcia registered the
disputed domain name on Complainant’s behalf while under contract and paid all
costs associated with registration and web hosting. The parties dispute whether Complainant is entitled
to take ownership of the domain name now that it no longer wishes to employ Mr.
Garcia’s services. This is a question of
state contractual and fiduciary law and the Panel is not in a position to
adjudicate it. Hachette Filipacchi
Media U.S., Inc. v. Urthere Prods., Inc., D2002-0143 (WIPO May 30, 2002) (“[I]t
appears that the domain name was registered in good faith pursuant to an
agreement between the parties. . . . Whether
termination of the agreement ends Respondents [sic] entitlement to the domain
name is a matter of contractual interpretation outside the scope of the Policy.”);
Frazier Winery LLC v. Hernandez, FA 841081 (Nat. Arb. Forum Dec. 27,
2006) (“The Complaint does not raise issues of abusive registration of the [disputed]
domain name, because the disputed domain name was registered and hosted by
Respondent pursuant to a business relationship with Complainant. . . . The Complaint alleges issues regarding the
rightful possession of the domain name registration for the [disputed] domain
name pursuant to the parties’ agreement.
Consequently, this dispute is properly one that arises under state law
or common law, but in any event is outside of the scope of the UDRP.”).
Complainant has offered to pay for past
registration fees, and Respondent states that it has demanded only a fraction
of the past web hosting expenses related to the disputed domain name. The dispute between the parties is now
whether Complainant should pay a portion of prior web hosting costs for
ownership of the disputed domain name. Inextricably
tied to this negotiation is the unpaid bill for Mr. Garcia’s purported services,
a subject that is even further removed from the purview of this Panel.
DECISION
Having concluded that the dispute is outside the scope of the ICANN
Policy, the Panel concludes that relief shall be DENIED.
Michael Albert, Panelist
Dated: December 1, 2008
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