Heather Vale Goss v. G. William Bushfield / UK2 Group - domain ownership under dispute / Support Administrator
Claim Number: FA1105001387721
Complainant is Heather Vale Goss (“Complainant”), Oregon, USA. Respondent is G. William Bushfield / UK2 Group - domain ownership under dispute / Support Administrator (“Respondent”), Ontario.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <heathervale.com>, <successunwrapped.com>, <interviewingunwrapped.com>, <internetmarketingunwrapped.com>, and <marketingunwrapped.com>, registered with Resell.biz (collectively the “Dispute Domain Names”).
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.
Kendall C. Reed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 6, 2011; the National Arbitration Forum received payment on May 6, 2011.
On May 10, 2011 and June 24, 2011, Resell.biz confirmed by e-mail to the National Arbitration Forum that the <heathervale.com>, <successunwrapped.com>, <interviewingunwrapped.com>, <internetmarketingunwrapped.com>, and <marketingunwrapped.com> domain names are registered with Resell.biz and that Respondent is the current registrant of the names. Resell.biz has verified that Respondent is bound by the Resell.biz 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 July 6, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 2011 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@heathervale.com, postmaster@successunwrapped.com, postmaster@interviewingunwrapped.com, postmaster@internetmarketingunwrapped.com, and postmaster@marketingunwrapped.com. Also on July 6, 2011, 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 27, 2011.
An Additional Submission was received from Complainant on July 31, 2011.
An Additional Submission was received from Respondent on August 8, 2011.
On August 4, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Kendall C. Reed as Panelist.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
The Complainant and Respondent were married and were business partners. They have since divorced.
The Dispute Domain Names reflect Complainant’s registered business names and copyrighted works. They are in fact Complainant’s original domain names.
Respondent logged into the registrar accounts that belonged to both Complainant and Respondent and wrongfully locked Complainant out of these accounts, including those for the Disputed Domain Names.
This improper assertion of ownership by Respondent over the Disputed Domain Names causes confusion among Complainant’s customers, clients, and associates. Further, Respondent has from time to time failed to pay the maintenance fees for some of the Disputed Domain Name, which has resulted in a loss of service and resulting in harm to Complainant’s business.
Complainant has offered to pay Respondent for control over the Disputed Domain Names, but Respondent has refused.
B. Respondent
Respondent and Complainant were married in 1993 and divorced on August 11, 2008 [General Judgment of Dissolution of Marriage…and Money Award, In the Circuit Court of the State of Oregon for the County of Josephine, a copy of which is attached as an exhibit to the Response, the “Judgment of Dissolution” or “Judgment”].
The Disputed Domain Names were developed during the couple’s marriage and before Complainant acquired trademark rights that might apply to them. As such, Disputed Domain Names were marital property and subject to division by the court upon the couple’s divorce.
Pursuant to the applicable Judgment of Dissolution, all of the couple’s property was divided and none was left out. The court awarded property to each spouse in accordance with who had possession at the time of the Judgment. At that time, Respondent was in possession of the Disputed Domain Names, and as such, these belong to him. He did not wrongfully take them.
C. Complainant’s Additional Submissions
The Disputed Domain Names were not awarded to Respondent pursuant to the Judgment of Dissolution. The language of the Judgment referenced by Respondent applied only to personal property, and the Disputed Domain Names are not personal property. Further and more generally, the Judgment of Dissolution did not address the couple’s business interests.
D. Respondent’s Additional Submissions
The Judgment of Dissolution did include the Disputed Domain Names. The Judgment was inclusive of all of the couple’s property.
This Panel finds that the Complainant and Respondent were married and subsequently divorced pursuant to the Judgment of Dissolution. The Disputed Domain Names were originally acquired by one or both of the Complainant and Respondent during their marriage. The Judgment does not specifically mention the Disputed Domain Names.
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: DISPUTE OUTSIDE THE SCOPE OF A PROCEEDING UNDER THE POLICY
This Panel’s authority arises from the Policy adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”). The purpose of the Policy is to provide a forum and remedies, in the first instance, with respect to claims of abusive domain name hijacking, also called cybersquatting. The administrative forum thereby created by the Policy is narrowly tailored to fit this mandate. The allowable issues are restricted, the timelines are short, and awards are based solely on the papers submitted.
This administrative forum is ill suited to decide competing claims of ownership to domain names when the allegations of fact are in marked disagreement and/or it would be necessary for a panel to reach out beyond the Policy and trademark law and principles to reach a decision. See In Love v. Barnett, FA 944826 (Nat. Arb. Forum May 14, 2007), where the panel stated: “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.”
According to the panel in Love, complex cases such as the one presented there may be better decided by the courts than by a UDRP panel: “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, this Panel concludes that the instant dispute cannot be resolved without interpreting the noted Judgment of Dissolution and potentially the family law provisions of Oregon, at a minimum, which analysis is better suited for a court of competent jurisdiction, with all of the tools available there, than this administrative Panel. As such, this Panel concludes that this dispute falls outside the scope of the Policy.
When a panel finds that a dispute falls outside the scope of the Policy, it may 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 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).
Accordingly, the Complaint is dismissed, and the registration of the following domain names shall remain unchanged: <heathervale.com>, <successunwrapped.com>, <interviewingunwrapped.com>, <internetmarketingunwrapped.com>, and <marketingunwrapped.com>
Kendall C. Reed, Panelist
Dated: August 17, 2011
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