Hillsboro Club Inc. v. 901
Claim Number: FA0809001225100
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.
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.
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 email@example.com 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.
Complainant requests that the domain name be transferred from Respondent to 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.
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.
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.
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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