William J. Hopke v. Ellie Chambers
Claim Number: FA0909001282934
Complainant is William J. Hopke (“Complainant”), represented by David
E. Espenlaub, of Espre Solutions Inc.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vuelive.com>, registered with GoDaddy.com, Inc.
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.
Richard DiSalle as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 4, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 10, 2009.
On September 4, 2009, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <vuelive.com> domain name is registered with GoDaddy.com, Inc. and that the 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 September 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of October 5, 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 email@example.com by e-mail.
A timely Response was received and determined to be complete on October 5, 2009.
An Additional Submission was timely filed by the Complainant, and an Additional Submission was timely filed by the Respondent.
On October 9, 2009, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Richard DiSalle as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY SUBSTANTIVE ISSUE: Business Dispute Outside the Scope of the UDRP.
According to Respondent, an agreement was reached between Respondent’s employer, Vizeo Solutions, Ltd. and Complainant which allowed Complainant a conditional use of the <vuelive.com> domain name as long as Complainant could raise $5,000,000 by May 2008, remain solvent, and deliver to Respondent the agreed upon software and support. Respondent provides evidence of the written agreement as well as evidence of Complainant’s default. Respondent asserts that Complainant received adequate consideration for the agreement and that the agreement remains in effect. Complainant, on the other hand, fails to cite the existence of any agreement between Respondent’s employer and Complainant. Instead, Complainant argues that the wife of a former employee registered the <vuelive.com> domain name prior to the employee leaving Complainant’s employment.
The Panel finds that both parties have presented evidence of rights in the disputed domain name and the central issue in this case centers upon who should be the rightful owner of the disputed domain name. The Panel determines that this question and its answer falls outside the scope of traditional analysis conducted under the UDRP.
The Panel finds that this case is analogous to the factual circumstances in Love v. Barnett, FA 944826 (Nat. Arb. Forum May 14, 2007) in which the panel stated:
A dispute, such as the present one, between parties who each have
at least a prima facie case for rights in the disputed domain names
is outside the scope of the Policy … the present case appears to
hinge mostly on a business or civil dispute between the parties,
with possible causes of action for breach of contract or
fiduciary duty. Thus, the majority holds that the subject matter
is outside the scope of the UDRP and dismisses the Complaint.
Based upon the reasoning outlined in the aforementioned case and the similar circumstances alleged in the Response, the Panel concludes that the Complaint is dependent upon determining the rightful owner of the disputed domain name based on the relationship between Complainant and Respondent, and the Panel finds that this question falls outside the scope of the UDRP. Therefore, the Panel 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.”).
Having decided that it does not have jurisdiction under the ICANN Policy, the Panel DISMISSES the Complaint.
Accordingly, it is ORDERED that the Complaint is dismissed.
Richard DiSalle, Panelist
Dated: October 23, 2009
National Arbitration Forum
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