Total Net Connex
Technologies, Inc. v. management, telecom
Claim Number: FA0906001269206
PARTIES
Complainant is Total Net Connex Technologies, Inc. (“Complainant”), represented by Lonnie Coleman, of Moomjian, Waite, Wactlar & Coleman, LLP, New York, USA. Respondent is management, telecom (“Respondent”), represented by Keith E. Henrich, New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tnexx.com>, <tnetconnex.com>, and <mobiustel.net>,
registered with Network Solutions, 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.
G. Gervaise Davis III and Honorable Herman D. Michels (Ret.) as
Panelists, and Sandra J. Franklin as Panelist and Panel Chairperson.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on June 18, 2009; the
National Arbitration Forum received a hard copy of the Complaint on June 19, 2009.
On June 19, 2009, Network Solutions, Inc. confirmed by e-mail to
the National Arbitration Forum that the <tnexx.com>, <tnetconnex.com>, and <mobiustel.net> domain
names are registered with Network Solutions,
Inc. and that the Respondent is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 June 26, 2009, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 16, 2009 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@tnexx.com, postmaster@tnetconnex.com, and postmaster@mobiustel.net
by e-mail.
A timely Response was received and determined to be complete on July 16, 2009.
An Additional Submission was received from Complainant on July 21,
2009, and was determined to be timely and complete, and so is in compliance
with Supplemental Rule 7.
An Additional Submission was received from Respondent on July 27, 2009,
and was determined to be timely and complete, and so is in compliance with
Supplemental Rule 7.
On July 28. 2009, pursuant to Complainant’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed G. Gervaise Davis III and Honorable Herman
D. Michels (Ret.) as Panelists, and Sandra J. Franklin as Panelist and Panel
Chairperson.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant made the following initial assertions:
1. Complainant purchased the <tnexx.com>, <tnetconnex.com> and <mobiustel.net> domain names. Complainant has common law rights in the marks Total Net Connex Technologies, TNEX, tnexxcom and tnetconnex.com.
2. Respondent does not have any rights or legitimate interests in the <tnexx.com>, <tnetconnex.com>, and <mobiustel.net> domain names.
3. Respondent registered and used the <tnexx.com>, <tnetconnex.com>, and <mobiustel.net> domain names in bad faith.
B. Respondent responded as
follows:
1.
Mobius
Telecommunications, Inc. is the true owner of the <mobiustel.net> domain name and there is a pending civil lawsuit about that
domain.
2. There is a legal dispute as to who owns Total
Net Connex and there are related legal actions pending regarding the <tnexx.com>and <tnetconnex.com> domain names.
C. In Complainant’s Additional
Submission, it stated:
1. Former counsel for Complainant U.S. Starcom,
Keith Henrich, is now appearing as counsel for Respondent.
2. Complainant properly purchased all of the
assets of Total Net Connex Technologies, Inc.
3. Complainant paid for the <mobiustel.net> domain name.
4. Mr.
Saccente and Mr. Stephens breached fiduciary duties owed to Complainant.
D. In Respondent’s Additional
Submission, it stated:
1.
Complainant
has not shown any type of ownership over <mobiustel.net>.
2. Matters pertaining to Mr. Saccente and Mr.
Stephens are best heard in the Court currently hearing the related case.
Preliminary Substantive Issue: Business Dispute Outside the
Scope of the UDRP
Both parties refer to the sale of assets,
including domain names and trademarks, of Total Net Connex Technologies,
Inc. There are apparently one or more
legal actions currently pending pertaining to that sale, the results of which
will address who is the rightful owner of the <tnexx.com>, <tnetconnex.com>,
and <mobiustel.net> domain
names.
It is not clear exactly what role Mr. Saccente and Mr. Stephens played
in that sale, but neither of them are parties to this
domain name dispute.
The
Panel notes that numerous legal theories related to the ownership of the domain
names are put forward by one or both parties, including claims of fraud,
misrepresentation, conversion, breach of contract, breach of fiduciary duty,
shareholder rights, malpractice, and even criminal responsibility. These matters require factfinding by a
tribunal and, indeed, two or more courts are already involved in getting to the
bottom of the factual quagmire in this case.
This dispute is clearly outside the scope of the UDRP.
The Panel finds that the Complaint is dependent upon determining the rightful owner of the disputed domain names based on the relationship between Complainant, Respondent and third parties, a determination which is outside the scope of the UDRP. The Panel accordingly dismisses the Complaint. See 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.”); see also Fuze Beverage, LLC v. CGEYE, Inc., FA 844252 (Nat. Arb. Forum Jan. 8, 2007) (“The Complaint before us describes what appears to be a common-form claim of breach of contract or breach of fiduciary duty. It is not the kind of controversy, grounded exclusively in abusive cyber-squatting, that the Policy was designed to address.”).
DECISION
The Panel dismisses the Complaint and concludes that relief shall not
be granted.
G. Gervaise Davis III, Panelist
Honorable Herman D. Michels (Ret.), Panelist
Sandra J. Franklin, Panelist and Panel
Chairperson
Dated: August 7, 2009
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