national arbitration forum

 

DECISION

 

Nissan of Fort Worth c/o Frank Figueredo, Jr. v. Thornhill Auto Group

Claim Number: FA0906001270184

 

PARTIES

Complainant is Nissan of Fort Worth c/o Frank Figueredo, Jr., Texas, USA (“Complainant”).  Respondent is Thornhill Auto Group (“Respondent”), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <nissanoffortworth.com>, registered with Godaddy.com, Inc.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Judge Ralph Yachnin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on June 24, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 24, 2009.

 

On June 24, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <nissanoffortworth.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name.  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 July 1, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 21, 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@nissanoffortworth.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On July 24, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Complainant purchased the Nissan Dealership in Forth Worth, Texas from Respondent on October 1, 2008.

2.      In the purchase agreement Respondent agreed to transfer all intellectual property and contract rights associated with the dealership to Complainant.

3.      Respondent has, in bad faith, not relinquished or turned over the ownership of the <nissanoffortworth.com> domain name.

 

B.  Respondent failed to submit a Response in this proceeding.

 

PRELIMINARY ISSUE: Outside the Scope of the UDRP

 

The Panel finds that this is a contractual issue that falls outside the scope of review under the UDRP and that such an issue must be resolved in a Court of competent jurisdiction.  The Panel therefore chooses to dismiss 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.”); 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).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

It is Ordered that the Complaint be and hereby is DISMISSED.

 

 

 

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

 

Dated:  August 6, 2009

 

 

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