Simone Elkeles v. GISOL, Inc.
Claim Number: FA1006001329560
Complainant is Simone
Elkeles (“Complainant”), represented by Ruth
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <simoneelkeles.com>, registered with Allindomains.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 11, 2010.
On June 14, 2010, Allindomains confirmed by e-mail to the National Arbitration Forum that the <simoneelkeles.com> domain name is registered with Allindomains and that Respondent is the current registrant of the name. Allindomains has verified that Respondent is bound by the Allindomains 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 22, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 12, 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 postmaster@simoneelkeles.com. Also on June 22, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 15, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant is a best-selling author of books published in her own name.
Complainant operates a website related to the books she has published, awards she has won, and reviews and testimonials at <simoneelkeles.net>.
Complainant has common law rights in the SIMONE ELKELES mark based on its use in association with her status as an author.
Respondent, GISOL, Inc., is the web hosting provider that Complainant chose to register the disputed domain name.
Respondent registered the disputed domain name in its own name on July 6, 2005.
The disputed domain name redirects Internet users to Complainant’s website resolving from her <simoneelkeles.net> domain name.
Respondent’s <simoneelkeles.com> domain name is identical to Complainant’s SIMONE ELKELES mark.
Respondent does not have any rights to or legitimate interests in the domain name <simoneelkeles.com>.
Despite repeated demands from Complainant that the contested domain name be transferred to the name of Complainant, Respondent has refused to do so unless and until Complainant pays Respondent the sum of $2,000.00.
Respondent registered and uses the <simoneelkeles.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
DISCUSSION AND FINDINGS
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.”
From our review of the submissions of the parties, it is evident that this is not a dispute within the contemplation of the Policy, which is intended solely to address instances of “cyber-squatting,” defined as the abusive registration and use of Internet domain names. Rather, this is a dispute as to the nature and conduct of a business arrangement between the parties, which should be confided to the jurisdiction of the appropriate local or national courts. See, for example, Summit Industries, Inc. v. Jardine Performance Exhaust Inc., D2001-1001 (WIPO Oct. 15, 2001):
[T]he question presented is outside the purview of the UDRP, in that it
involves questions of the extent of rights transferred and retained under a
stock purchase agreement. Such questions should be determined in an arbitration
conducted by agreement of the parties or by a court of law. Accordingly, the
Complaint must be dismissed.
See also Nintendo of America Inc. v. Alex Jones, D2000-0998 (WIPO Nov. 17, 2000):
It is not the function of an ICANN Administrative Panel to resolve all
issues concerning the use of intellectual property rights. Matters beyond the
narrow purview of the Policy are for the courts of appropriate jurisdictions.
Further see Love v. Barnett, FA 944826 (Nat. Arb. Forum May 14, 2007):
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.
DECISION
For the reasons indicated, it is Ordered that the Complaint herein is hereby DISMISSED.
Terry F. Peppard, Panelist
Dated: July 16, 2010
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