Christine L. Seering v. ABOUT .
Claim Number: FA1004001319065
Complainant is Christine L. Seering (“Complainant”), represented by Shirlee
M. Bobryk, of White, Schneider, Young & Chiodini,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <prenatalcradleinc.com>, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 14, 2010.
On April 18, 2010, Melbourne It, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <prenatalcradleinc.com> 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 April 26, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to firstname.lastname@example.org. Also on April 26, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on May 14, 2010.
Complainant submitted an Additional Submission on May 19, 2010 that was deemed timely and in compliance with Supplemental Rule 7.
On May 24, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist. Each party has filed an Additional Submission.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s domain name <prenatalcradleinc.com is confusingly similar to Complainant’s PRENATAL CRADLE mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent filed a Response stating that this dispute is really a multifaceted and bitter controversy between two sisters-in-law which is the subject of ongoing court litigation. Respondent also notes that it is a subsidiary of Prenatal Cradle, Inc., a corporation which is 50% owned by each of the women.
C. Additional Submissions: Complainant and Respondent filed Additional Submissions which confirm that this dispute and other related matters are the subject of ongoing litigation between the parties and their privies.
Preliminary Issue :
Complainant and Respondent agree that they are currently in litigation in the Circuit Court in Clare County, Michigan in regard to the matters set forth in the Complaint and Response, as well as numerous other issues affecting the business of Prenatal Cradle, Inc. and About Babies, Inc. Complainant asserts that the litigation also includes a counterclaim by Complainant against Respondent for violation of the Anti-Cybersquatting Consumer Protection Act and Trademark Infringement.
It also appears that Complainant and Respondent are currently in litigation in Clare County, Michigan regarding a shareholder dispute between Complainant and Mona Seering.
This Panel determines that it will not proceed with the arbitration because of the pending litigation. See AmeriPlan Corp. v. Gilbert, FA 105737 (Nat. Arb. Forum Apr. 22, 2002) (Regarding simultaneous court proceedings and UDRP disputes, Policy ¶ 4(k) requires that ICANN not implement an administrative panel’s decision regarding a UDRP dispute “until the court proceeding is resolved.” Therefore, a panel should not rule on a decision when there is a court proceeding pending because “no purpose is served by [the panel] rendering a decision on the merits to transfer the domain name, or have it remain, when as here, a decision regarding the domain name will have no practical consequence.”) Accordingly, the Panel determines it best to dismiss the Complaint.
Accordingly, the Complaint is DISMISSED without prejudice.
James A. Carmody, Esq., Panelist
Dated: June 2, 2010
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