Rangeshwara Reddy Kona v. Syed Kamran Ali
Claim Number: FA1111001417233
Complainant is Rangeshwara Reddy Kona (“Complainant”), represented by Rangeshwara Reddy Kona, Texas, USA. Respondent is Syed Kamran Ali (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bharatwaves.com>, registered with Name.com LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 25, 2011; the National Arbitration Forum received payment on November 25, 2011.
On November 28, 2011, Name.com LLC confirmed by e-mail to the National Arbitration Forum that the <bharatwaves.com> domain name is registered with Name.com LLC and that Respondent is the current registrant of the name. Name.com LLC has verified that Respondent is bound by the Name.com LLC 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 December 6, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 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@bharatwaves.com. Also on December 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.
Having received no response from Respondent which was in keeping with the requirements of the Policy and its associated Rules, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 6, 2012, 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 (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 a compliant response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant operates an Internet-based entertainment portal business, and, in that connection, has rights in the BHARATWAVES.COM mark
Complainant has used the mark since January 10, 2005, when it registered the domain name encompassing the mark.
Respondent acquired the domain name on or about November 12, 2011, without authorization from Complainant.
The content of the website resolving from the <bharatwaves.com> domain name has been purchased by Complainant from various vendors.
B. Respondent has failed to submit a Response in this proceeding which was in keeping with the requirements of the Policy or its accompanying Rules. However, Respondent has submitted a series of e-mail communications to the National Arbitration Forum. In the interests of justice, the Panel will take into account, in rendering its decision in this proceeding, Respondent’s assertions in those communications, insofar as those assertions may merit, as follows:
The Complaint was filed under an inappropriate policy, and should have been filed under the ICANN policy denominated the Transfer Dispute Resolution Policy (TDRP).
Complainant has failed to show that it has registered its claimed mark with any trademark authority.
Respondent purchased the disputed domain name from Complainant in September of 2011.
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.”
The Complaint filed in this proceeding is seriously deficient. It fails to make even the most rudimentary factual showings which would be vital to a complete understanding of the issues presented. The non-compliant e-mail communica-tions submitted by Respondent are likewise seriously deficient. However, from the scant information presented by the parties, it appears 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 appears to be a dispute between contending owners of the subject domain name who may have entered into a purchase arrangement regarding the domain name the terms of which have not been submitted to the Panel. Such a dispute should be confided to the jurisdiction of the appropriate local or national court. 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 … by a court of law. Accordingly, the Complaint must be dismissed.
To the same effect, 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 be, and it is hereby, DISMISSED.
Terry F. Peppard, Panelist
Dated: January 17, 2012
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