Chevrolet of Homewood v. mt nephin co
Claim Number: FA1010001351227
Complainant is Chevrolet of Homewood ("Complainant"), represented by Guy J. Cesario, Illinois, USA. Respondent is mt nephin co ("Respondent"), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <chevyofhomewood.com> and <chevroletofhomewood.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.
Hector A. Manoff as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 8, 2010; the National Arbitration Forum received payment on October 8, 2010.
On October 8, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <chevyofhomewood.com> and <chevroletofhomewood.com> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 12, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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 postmaster@chevyofhomewood.com and postmaster@chevroletofhomewood.com. Also on October 12, 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 November 2, 2010.
Complainant submitted an Additional Submission on November 9, 2010. Complainant’s Additional Submission was received after the deadline for submissions and without the required fee. The Forum does not consider this submission to be in compliance with Supplemental Rule 7.
On November 12, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hector A. Manoff as Panelist.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
1. Complainant asserts that the disputed domain names <chevroletofhomewood.com> and <chevyofhomewood.com> are identical and confusingly similar to its legal name respectively, according to the attached Certificate of Authority issued by the Secretary of State of the State of Illinois, which was issued on October 30, 2009.
2. Complainant further asserts that Respondent is a family member of an ex-partner and that they have no affiliation or connection with their current business.
3. Complainant also asserts that the disputed domain names were purchased after Respondent separated from the partnership.
4. Complainant affirms that the disputed domain names are not being used.
5. Complainant asserts that the disputed domain names were purchased so as not to give Complainant the option to purchase the names.
6. Complainant asserts that Respondent has registered the disputed domain names for the purpose of disrupting their business by not allowing them access to their known legal business names.
B. Respondent
1. Respondent asserts that it registered the disputed domain names before Complainant established its business.
2. Respondent further contends that the name “Chevrolet of Homewood” is an assumed name and that the original name is “Steve Peters Chevrolet”; he also asserts that, since he is still a partner of “Steve Peters Chevrolet”, he is therefore a partner of Chevrolet of Homewood.
3. Respondent states that he was never contacted regarding the disputed domain names.
C. Additional Submissions
Complainant
1. Complainant attaches copies of two business licenses aimed at proving their business name “Chevrolet of Homewood” is real.
2. Complainant indicates that Peter Gleason did in fact declare and sign that he was no longer affiliated with the Steve Peters Chevrolet dealership and submits a certification presumably signed by Peter A. Gleason.
3. Complainant indicates that it never contacted Mr. Gleason directly because he did not purchase the disputed domain names under his own name but rather using Mr. Gleason’s sister’s address along with a fictitious business name.
Respondent
1. Respondent indicates that the documents submitted by Complainant in their Additional Submission had been forged and, thus, he denies having signed the document that would certify he was no longer affiliated with the Steve Peters Chevrolet dealership.
2. Respondent attaches a certificate printed from the website of the Secretary of State of the State of Illinois that would indicate that “Chevrolet of Homewood” was an assumed name of Steve Peters Chevrolet Inc. until 08/27/2009.
D. Other Correspondence
On November 16, 2010, the Panel received additional correspondence from Complainant, which provided the contact information of an attorney at law for any questions the Panel may have regarding the “partnership separation” (sic).
Complainant further states that Peter Gleason, Mt Nephin, joyce m and Joyce Ford are not located in Homewood nor are they in the business of selling or servicing Chevrolets.
Complainant Chevrolet of Homewood submits no evidence indicating that it has a trademark registration for its CHEVROLET OF HOMEWOOD mark, nor does it try to prove whether it has established common law rights in its mark. Instead, it submitted business licenses that were issued after the registration date of the disputed domain names.
Moreover, the discussion reveals a contractual/business dispute between the parties, which is clearly outside the scope of the UDRP.
Paragraph 15(a) of 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 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
Preliminary Issue 1: Complainant’s Deficient Additional Submission
Complainant submitted an Additional Submission after the deadline for submissions had passed, so it has been deemed deficient by the National Arbitration Forum pursuant to Supplemental Rule 7. However, the Panel has determined to give the Complainant’s Additional Submission due weight. See, e.g., Atlantic Station, LLC v. Dargan Burns III (FA0903001250592 (Nat. Arb. Forum April 26, 2009) (finding that “the Panel believes that this deficiency is technical in nature and caused no prejudice to Respondent. The Panel is of the view that it should focus on the real dispute between the parties and will accordingly give the Complainant’s Additional Submission due weight”. Also see, e.g., Bd. of Governors of the Univ. of Alberta v. Katz, D2000-0378 (WIPO June 22, 2000) (finding that a panel may consider a response which was one day late, and received before a panelist was appointed and any consideration made); see also J.W. Spear & Sons PLC v. Fun League Mgme., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that where respondent submitted a timely response electronically, but fail to submit a hard copy of the response on time, "[t]he panel is of the view that given the technical nature of the breach and the need to resolve the real dispute between the parties that this submission should be allowed and given due weight").
Preliminary Issue 2: Business/Contractual Dispute Outside the Scope of the UDRP
Complainant does not have a trademark registration for “CHEVROLET OF HOMEWOOD” nor did it prove to have acquired common law rights on that mark. Instead, it based its claim on its alleged rights on their legal name “Chevrolet of Homewood, Inc.”, which Respondent intended to prove by submitting copy of business licenses which were issued after the disputed domain names were registered by Respondent.
Respondent claimed he had been a partner of Complainant, who indeed acknowledged that assertion when it submitted copy of a document which would certify that Respondent had been separated from the partnership, and by providing contact information of the attorney that handled the “partnership separation”.
The disputed domain names were registered on April 14, 2009. After having reviewed the attached documents, the Panel noted that the document submitted by Complainant that would prove Respondent’s separation from the partnership was dated June 1, 2009.
Therefore, the Panel believes that there was an ongoing dispute among the partners at the time Respondent registered the disputed domain names and, thus, that each party might have rights in the disputed domain names.
Taking into account that the UDRP was implemented to address abusive cybersquatting and not contractual or legitimate business disputes, the Panel decides to dismiss 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 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); see also Love v. Barnett, FA 944826 (Nat. Arb. Forum May 14, 2007), (holding that “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.”).
For the reasons presented above, the Panel concludes that relief shall be DENIED.
Accordingly, the Complaint is DISMISSED.
Hector A. Manoff, Panelist
Dated: November 19, 2010
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