Total Net Connex Technologies, Inc. v. management, telecom
Claim Number: FA0906001269206
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.
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.
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 firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
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.”).
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
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum