Maverick Equipment Manufacturing, Inc. v. John Bubernak
Claim Number: FA0912001300889
Complainant is Maverick Equipment Manufacturing, Inc. (“Complainant”), represented by Geoffrey
W. Millsom, of Adler Pollock & Sheehan, P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <maverickhammers.net>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 30, 2009; the National Arbitration Forum received a hard copy of the Complaint on January 4, 2010.
On January 3, 2010, Melbourne It, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <maverickhammers.net> domain name is registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide and that the Respondent is the current registrant of the name. Melbourne It, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne It, Ltd. d/b/a Internet Names Worldwide 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 January 7, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 27, 2010 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 by e-mail.
A timely Response was received and determined to be complete on January 25, 2010.
On February 4, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant manufactures hydraulic hammers and related products. Complainant’s trademark, MAVERICK HAMMERS, is registered on the Principal Register of the U.S. Patent and Trademark Office. Complainant states that it hired Respondent to manage, design, and maintain Complainant’s website at the domain name <maverickhammers.com>, and that Respondent thereafter registered and is using the disputed domain name <maverickhammers.net>. Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s mark, that Respondent lacks rights or legitimate interests in the domain name, and that it was registered and is being used in bad faith.
Respondent states that he was a contractor hired by Complainant. Under the contract between the parties, Respondent was to establish an alternate website for Complainant under a separate domain name and then promote this website to search engines. Respondent states that the domain name selected for this alternate site was the disputed domain name <maverickhammers.net>, and that Respondent never had anything to do with Complainant’s primary website at <maverickhammers.com>. Respondent states further that the alternate website contained material approved by Complainant and was up for only a short time, and that the disputed domain name was never used for any other purpose. However, Respondent alleges that he was never paid for his services under the contract, and that he has offered to cooperate in transferring the disputed domain name to Complainant upon payment. Respondent further asserts that he has obtained a judgment against Complainant for breach of contract but has not yet been able to collect on the judgment. Respondent accuses Complainant of having brought the present Complaint in order to harass Respondent. (The Response was accompanied by copies of the contract and the judgment.)
The Panel finds that Respondent’s registration and use of the disputed domain name do not appear to qualify as bad faith under the Policy, and that the present dispute falls outside the scope of the Policy.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Based upon the evidence before the Panel, it appears that Respondent registered the disputed domain name pursuant to a contract between the parties, and that Respondent has not used the domain name other than as authorized by that contract.
Respondent’s actions to date, at least in regard to the registration of the disputed domain name, do not clearly constitute bad faith as contemplated by Paragraphs 4(a)(iii) and 4(b) of the Policy. Furthermore, the present dispute is primarily a contractual one that is beyond the scope of the Policy. See, e.g., In Love v. Barnett, FA 944826 (Nat. Arb. Forum May 14, 2007); Fuze Beverage, LLC v. CGEYE, Inc., FA 844252 (Nat. Arb. Forum Jan. 8, 2007). The Panel therefore declines to grant a remedy under the Policy.
Having considered all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
David E. Sorkin, Panelist
Dated: February 17, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum