NATIONAL ARBITRATION FORUM
R&G Business, LLC v. Scott Wassermman a/k/a Scott Wassermman
Claim Number: FA1005001326899
is R&G Business, LLC
(“Complainant”), represented by John E. Cummerford,
of Greenberg Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dabalash.com>, registered with GoDaddy.com, 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.
Timothy D. O’Leary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 27, 2010.
On May 28, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <dabalash.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 June 11, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 1, 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 email@example.com by e-mail. Also on June 11, 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 July 1, 2010.
On July 8, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Timothy D. O’Leary as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Preliminary Issue: Business/Contractual Dispute Outside the Scope of the UDRP
Respondent, Scott Wassermman a/k/a
Scott Wassermman, claims to be the founder of Cosmetic Alchemy. Respondent alleges that it hired third
parties, Ms. Herrel and C Coast Labs, to assist in designing a formula for an
eyelash stimulator product. According to
Respondent, after designing the product Respondent agreed to an exclusive
contract with Ms. Herrel and C Coast Labs for the formula. Respondent contends that Ms. Dabdoub and Mr.
Torres, the founders of Complainant, were hired to distribute Respondent’s
eyelash stimulator product in
Complainant, R&G Business, LLC, claims that Complainant’s founder, Ms. Dabdoub, formerly worked as an independent promoter-distributor for Respondent. Complainant alleges that Ms. Dabdoub left Respondent’s business due to a wrongful accusation that Ms. Dabdoub misappropriated information from Respondent’s cosmetics business that competes with Complainant. Complainant asserts that Ms. Dabdoub founded Complainant after leaving Respondent and that Complainant registered the <dabalash.com> domain name to sell its cosmetics products. Complainant contends that it hired a third-party, Mr. Ríos, to manage and maintain the disputed domain name and the resolving website. According to Complainant, Mr. Ríos sold the disputed domain name to Respondent in April of 2010. Complainant argues that Mr. Ríos did not have the legal ability to transfer ownership of the <dabalash.com> domain name. Complainant further claims that Respondent’s purchase of the disputed domain name is directly related to the wrongful accusations directed at Complainant’s founder, Ms. Dabdoub, and that Respondent purchased the disputed domain name to cause harm to Complainant’s competing business.
The Panel finds that the
allegations made by Complainant and Respondent set out several business
relationships and several contractual disputes that require resolutions that
are outside the scope of the UDRP. In Love v. Barnett, FA
944826 (Nat. Arb. Forum May 14, 2007), the panel was concerned with possible causes of action for breach of
contract. In this case, however, Respondent
points out that its corporation, Cosmetic Alchemy, has filed suit in Federal
When the parties differ markedly with respect to the basic facts, and there is no clear and conclusive written evidence, it is difficult for a Panel operating under the Rules to determine which presentation of the facts is more credible. National courts are better equipped to take evidence and to evaluate its credibility.
The panel in Luvilon Industries NV v. Top Serve Tennis Pty Ltd., DAU2005-0004 (WIPO Sept. 6, 2005) concurred with this reasoning:
[The Policy’s purpose is to] combat abusive domain name registrations and not to provide a prescriptive code for resolving more complex trade mark disputes .… The issues between the parties are not limited to the law of trade marks. There are other intellectual property issues. There are serious contractual issues. There are questions of governing law and proper forum if the matter were litigated. Were all the issues fully ventilated before a Court of competent jurisdiction, there may be findings of implied contractual terms, minimum termination period, breach of contract, estoppels or other equitable defenses. So far as the facts fit within trade mark law, there may be arguments of infringement, validity of the registrations, ownership of goodwill, local reputation, consent, acquiescence, and so on.
Based upon the reasoning outlined in the aforementioned cases and the record, the Panel concludes that the instant dispute contains questions of contractual interpretation, and legal issues that fall outside the scope of the UDRP. 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).
The Panel concludes that this matter involves a number of contractual and other legal issues arising out of a business relationship and thus falls outside the scope of UDRP. Accordingly, it is Ordered that the Complaint is DISMISSED.
Timothy D. O’Leary, Panelist
July 16, 2010
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