Crowdfund International LLC v. PleaseFund.Us ltd
Claim Number: FA1212001475059
Complainant is Crowdfund International LLC (“Complainant”), represented by Melise R. Blakeslee of Sequel Technology & IP Law, PLLC, Washington, D.C., USA. Respondent is PleaseFund.Us ltd (“Respondent”), represented by James D. Nguyen of Davis Wright Tremaine LLP, California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pleasefund.us>, registered with Network Solutions, LLC.
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.
David E. Sorkin as Panelist.
Complainant filed a United States Nexus Dispute Policy (“usNDP” or “Policy”) Complaint against Respondent with the National Arbitration Forum electronically on December 10, 2012.
On December 10, 2012, the National Arbitration Forum, pursuant to the usNDP Rules (“Rules”), Rule 7(a), made an initial evaluation of the Complaint on the basis of the statements and documents submitted by Complainant in accordance with the Policy and Rules. The National Arbitration Forum found that Complainant had established a prima facie case that Respondent had not met the Nexus Requirements set forth by the usNDP. Specifically, the National Arbitration Forum found that Complainant has made a prima facie case that:
[Respondent is] not (a) a United States citizen, (b) a permanent resident of the United States of America or any of its possessions or territories, (c) primarily domiciled in the United States of America or any of its possessions.
On December 12, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2013 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@pleasefund.us. Also on December 12, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 January 11, 2013.
Complainant’s Additional Submission was received and determined to be compliant on January 16, 2013.
Respondent’s Additional Submission was received and determined to be compliant on January 22, 2013.
Additional material was submitted by Complainant on January 30, 2013.
On January 23, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Complainant requests that the domain name be cancelled.
A. Complainant
Complainant alleges that Registrant has not complied with the Nexus Requirements with respect to the domain name <pleasefund.us>. Complainant contends that Respondent fails to meet any of the three bases set forth in the Policy—specifically, that Respondent is not a natural person who is a U.S. citizen, permanent resident, or domiciliary (Nexus category 1); that Respondent is not a U.S. entity or organization incorporated or otherwise organized under the laws of a U.S. jurisdiction (Nexus category 2); and that Respondent is not a foreign entity with a bona fide U.S. presence (Nexus category 3).
Complainant asserts, inter alia, that Respondent is organized and located in the United Kingdom; that it targets people with no ties to the United States; and that the vast majority of the projects featured on its site originate in the United Kingdom. Complainant further states that Respondent’s domain name servers are located in the United Kingdom, contrary to the certification required by the Policy. Complainant asserts that the only references to the United States on Respondent’s website relate to a former developer who “spends time” in California, who was not employed by Respondent when it registered the domain name, and who is presently not employed by Respondent. Complainant argues that “[t]he coincidental part-time residence in California of a staff member who joined Registrant after the Domain Name was registered and who has now left, cannot serve to fulfill the Nexus requirement.” Complainant also states that a California corporation search returns no results for Respondent.
B. Respondent
Respondent accuses Complainant of an ulterior motive for initiating this proceeding, stating that it is part of a campaign to interfere with Respondent’s use of the PLEASEFUND name in the United States, while Complainant intends to develop a business under a similar name.
Respondent contends that it has at all times complied with the Nexus Requirements, and in particular that it qualifies under Nexus category 3:
Applicant must also (1) regularly engage in lawful activities (sales of goods or services or other business, commercial or non-commercial including not-for-profit activities) in the United States; or (2) maintain an office or other property within the United States.
Respondent states that its objective is and has always been to provide services all over the world, including to those in the United States, qualifying it under category 3(1). Respondent further states that it has an office within the United States from which it conducts business, which qualifies it under category 3(2). Respondent acknowledges that it formerly used name servers located outside the United States, stating that it did so upon the advice of a vendor, but claims that it moved the domain name back to U.S.-based name servers once it learned of that requirement. Respondent also takes issue with Complainant’s characterization of its “former developer,” stating that this individual is a “key partner” in Respondent and serves as its lead technical developer; that he maintains a U.S. office; and that he has operated as Respondent’s main representative in the U.S. since the domain name was registered.
Respondent argues that the Policy does not require a registrant to do business exclusively in the United States, and that it is entitled to use a .US domain name because it complies with the Nexus Requirements. Respondent further argues that the Complaint should also be denied because it was brought for an improper purpose.
C. Additional Submissions
In its Additional Submission, Complainant notes that the domain name at issue was originally registered under the name of a different entity, and argues that much of the evidence presented by Respondent predates its acquisition of the domain name and thus should be disregarded. Complainant further argues that Respondent’s developer is merely a freelance contractor working part-time for three companies, and that his rental of a virtual office cannot be attributed to Respondent, as he is not its employee, agent, or legal representative. Complainant suggests that this individual may not even be located in the United States, and points out that there is no evidence that Respondent has ever even used the virtual office. Complainant also contends that Registrant has not shown that it is lawfully doing business in the United States, as Respondent has not registered with the California Secretary of State and the City of Santa Barbara as it would legally be required to do. Finally, Complainant denies having initiated this proceeding for an improper purpose, stating that it disclosed its interest to Respondent from the outset.
Respondent argues, in its Additional Submission, that Complainant seeks to impose specific thresholds of business activities into the Policy, and that Respondent clearly meets the requirements set forth in the Policy. Respondent states that merely because its U.S. office is located in a shared office setting with other businesses does not render it a sham, noting that this is quite common for startup companies. Respondent notes that the Policy does not require that its U.S. representative hold any particular title, and that this individual’s work for and role with the company qualifies as lawful activity performed within the United States for purposes of the Policy. Respondent describes the individual as “one of [its] principals,” “a key partner,” and “an authorized shareholder.” Respondent further states that local business registration is not required by the Policy, arguing that the “lawful activities” requirement in the Policy refers to the nature of the business, rather than its compliance with business registration requirements; and notes that it may not be legally required to register with the State of California anyway.
The Panel finds that Respondent has a bona fide presence in the United States, satisfying category 3 of the Nexus Requirements.
Paragraph 9(a) of the Rules instructs this Panel to consider evidence submitted by Respondent under the Nexus Requirements.
Paragraph 3(a) of the Policy provides three circumstances, without limitation, if found by the Panel to be present, that serve as evidence of noncompliance with the Nexus Requirements:
(i) Respondent is not (a) a United States citizen, (b) a permanent resident of the United States, or (c) primarily domiciled in the United States or any of its possessions; or
(ii) Respondent is not a United States entity or organization that is (a) incorporated within one of the fifty United States, District of Columbia, or any of the United States possessions and territories, (b) organized or otherwise constituted under the laws of a state of the United States, the District of Columbia, or any of its possessions or territories; or
(iii) Respondent is not a foreign entity or organization that has a bona fide presence in the United States, reflected by real and substantial lawful connections with, or lawful activities in, the United States.
Under the usTLD Nexus Requirements Policy, factors to be considered in determining whether an entity or organization has a bona fide presence in the United States include, without limitation, whether it:
(1) Regularly performs lawful activities within the United States related to the purposes for which the entity or organization is constituted (e.g., selling goods or providing services to customers, conducting regular training activities, attending conferences), provided such activities are not conducted solely or primarily to permit it to register for a usTLD domain name and are lawful under the laws and regulations of the United States and satisfy policies for the usTLD, including policies approved and/or mandated by the DoC; and
(2) Maintains an office or other facility in the United States for a lawful business, noncommercial, educational or governmental purpose, and not solely or primarily to permit it to register for a usTLD domain name.
The evidence before the Panel indicates that Respondent maintains an office in the United States, and that Respondent appears to be engaged in lawful activities. The Panel notes that this office is a physical space, albeit one that is shared with other entities, rather than merely a mail forwarding service. Respondent’s motivations for maintaining this office are not entirely clear. However, having considered the relevant evidence, the Panel is not persuaded that Respondent’s primary purpose in maintaining its U.S. office is merely to qualify under the Nexus Requirements. Furthermore, Respondent is engaged in what appear to be legitimate business activities in the United States and elsewhere, and it is not clear that those activities are being conducted in violation of any state or local laws. Accordingly, the Panel finds that Respondent meets both of the factors to be considered in determining whether it has a bona fide presence in the United States, and thus concludes that Respondent satisfies the Nexus Requirements.
Having considered the requirements set forth in the United States Nexus Dispute Policy Rules, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <pleasefund.us> domain name REMAIN WITH Respondent.
David E. Sorkin, Panelist
Dated: January 30, 2013
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