national arbitration forum

 

DECISION

 

Ronald M. Gaswirth v. Schnitzer, David / Martech Consulting Group

Claim Number: FA1303001490145

PARTIES

Complainant is Ronald M. Gaswirth (“Complainant”), represented by Jason R. Fulmer of GARDERE WYNNE SEWELL LLP, Texas, USA.  Respondent is Schnitzer, David / Martech Consulting Group (“Respondent”), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <gaswirth.com> ("the Domain Name") , registered with Network Solutions, LLC.

 

PANEL

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.

 

Dawn Osborne of Palmer Biggs Legal as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on March 15, 2013; the National Arbitration Forum received payment on March 15, 2013.

 

On March 16, 2013, Network Solutions, LLC confirmed by e-mail to the National Arbitration Forum that the <gaswirth.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name.  Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 March 20, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 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@gaswirth.com.  Also on March 20, 2013, 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 April 8, 2013.

 

An  Additional Submission of the Complainant which complied with Supplemental Rule 7 was received on April 15, 2013.

 

An  Additional Submission of the Respondent which complied with Supplemental Rule 7 was received on April 22, 2013.

 

On April 15, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Dawn Osborne of Palmer Biggs Legal as Panelist.

 

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

 

The Complainant's submissions can be summarized as follows:

 

Rights can be established for the purpose of the Policy by demonstrating prior use of the domain name that is the subject of the dispute. Complainant has rights in the Domain Name due to use of the domain for the previous decade. The Domain Name was first registered in December 2002 and was used for a family website until November 2012 when the web site was taken down and the corresponding e mail which was used for financial and trading accounts, business, personal and general communication disappeared. This was, upon information and belief, caused by the Respondent.

 

The Domain Name was given to the Complainant by his family as a birthday gift in 2002. Complainant paid the renewal fees in 2007. The web site attached to the Domain Name has been maintained since inception by Complainant and all changes to the site or servers, e-mail accounts, etc. have been made at the Complainant's direction.

 

At the time the Domain Name was registered the Respondent was married to the Complainant's daughter and he assisted with the domain registration paperwork. Unbeknownst to the Complainant the Respondent put his own name in the registrant field and provided his own contact information. This fact was only discovered by the Complainant when the server stopped working and he found that he could not make the necessary changes as the Respondent held or changed the necessary log in information. The Respondent refused to provide the log in info and responded that the Complainant or his son might have some thoughts as to how the Respondent could help and how the Complainant and his son could show some good faith as well, the suggestion being that the Domain Name was part of a larger overall dispute between the parties.

 

Since 2010 Respondent and Complainant's daughter have been embroiled in a litigious divorce and the Respondent has filed many post-divorce claims.

 

In 2012 when the Domain Name came up for renewal the Respondent renewed it and paid the renewal fees. The page resolves to a blank page. Complainant believes that Respondent's sole purpose for registering/renewing the Domain Name was to preserve his ability to use it as leverage against the Complainant or in the divorce proceedings or, at the very least, to prevent the Complainant using it out of spite.

 

Complainant has rights in the Domain Name and the name GASWIRTH due to his status as a well-known labor and employment lawyer in the United States and as a recognised leader for business in this field. As such the Complainant has built up considerable reputation and notoriety, substantial goodwill and favourable recognition in the name RON GASWIRTH and GASWIRTH which have acquired significant secondary meaning throughout the United States and constitute a valid common law trade mark.

 

Respondent does not have rights or legitimate interests in the Domain Name. Respondent is not affiliated with the Complainant, has not been authorised to use Complainant's name or trade mark and has no trade mark rights in GASWIRTH or the Domain Name, nor is he commonly known by the same. The ministerial act of registering a domain name for another does not give a person rights or legitimate interests in the relevant Domain Name. The Respondent registered the Domain Name under his own name without the Complainant's permission which cannot give rise to a right or legitimate interest. Respondent's only association with the Complainant was his former marriage to the Complainant's daughter. This fact alone does not give any rights or legitimate interests in the Domain name. Domain Name has not been used in connection with a bona fide offering of goods or services and no active content is posted on the Domain Name. There has been no legitimate non-commercial fair use. Because of his previous relationship with the Complainant's daughter and his knowledge of the Complainant and his rights the Respondent cannot have any rights or legitimate interests in the Domain Name now or in the future and could not use the Domain Name without violating the rights of the Complainant.

 

Respondent registered and is using the Domain Name in bad faith. The Domain Name was registered in the name of the Respondent without the Complainant's knowledge presumably with the intent to preserve an ability to use this as leverage in the future and it is not currently being used. The act of sitting on the Domain Name in order to prevent the Complainant using it out of malice constitutes bad faith. Through his marriage to the Complainant's daughter the Respondent was aware of the Complainant's name and rights when he registered the Domain Name. Gaswirth is not the Respondent's name.

 

B. Respondent

 

Respondent's submissions in its Response can be summarised as follows:

 

Complainant does not have rights to a trade mark in GASWIRTH or GASWIRTH.COM. There is no registered trade mark. The use is as an employment lawyer and not for e-mail communication. The Complainant has not given sufficient evidence of secondary meaning of GASWIRTH as a distinctive identifier associated with the Complainant or his services. Complainant has never used TM or SM with GASWIRTH. In his business documents the Respondent used rgaswirth@[redacted].com. There are no trademark rights in his personal name and he has not presented any evidence that his name has been used as a trade mark. He does not have rights by virtue of his allowed use of the Domain Name.

 

The Domain Name was registered on December 31, 2002 by Martech International LLC d/b/a Martech Consulting Group ("Martech") a company owned and controlled by Respondent David Schnitzer. The Respondent allowed many people with the last name GASWIRTH to use the Domain Name for personal e-mail. By virtue of divorce proceedings David Schnitzer was awarded all property used in association with the business "known as Martech International". Photographs on the Complainant's own screenshots from the site associated with the Domain Name contain photographs of the Respondent. Respondent and Respondent's company registered the Domain Name and paid for the registration fees from a credit card owned by Martech, initially registered and paid for the domain through the latter's funds. It was not simply an administrative function or ministerial as alleged by the Complainant.

 

By rights as the controller of the original registrant the Respondent renewed the Domain name in 2012.

 

Several people have the name GASWIRTH in the USA. The Domain Name does not consist of the specific name of the Complainant Ronald Mark Gaswirth. There is no use of any other word with GASWIRTH identifying the Complainant with the Domain Name. The name GASWIRTH is not unique and does not have the recognition of a brand or celebrity.

 

Prior use of a domain does not create ownership privileges in that domain.

 

Since 2010 Complainant and his daughter have filed numerous post-divorce claims against the Respondent to embarrass and harass the Respondent. This complaint is the latest step in that on-going harassment. There is a Court ordered mutual injunction as part of the divorce litigation that enjoins the Complainant's daughter and anyone in active concert or participation with her including attorneys to do any act calculated to embarrass harass or annoy David Schnitzer or direct another third party to do so and vice versa. The Complainant is violating Texas Rules of Professional Conduct and ethical standards by contacting the Respondent directly through mail and memorandum. The Complainant and his law firm have represented the Respondent in the past, but are currently taking cases against him for the Complainant's daughter.

 

Respondent offered to help with the situation relating to the Domain Name, however the Complainant and his son attempted to initiate legal proceedings and threats in an attempt to have Respondent incur more costs. As a result Respondent refused to assist when requests were made to him about the Domain Name account password.

 

The Domain Name has not been registered or used in bad faith. Complainant waited over ten years to file a Complaint against the Respondent and three years after divorce proceedings. The Complaint is barred on grounds of doctrine of laches. The considerable delay is evidence that the Complainant does not really believe that the Respondent registered the Domain Name in bad faith.

 

The registration of the Domain Name predates all of the Complainant's evidence of common law rights.

 

Respondent has never made an effort to sell the Domain to the Complainant or anyone else.

 

Respondent's children have heritage associated with the GASWIRTH name and it is within the Respondent's rights to protect that name for possible use by his children. The Domain Name was used for a personal web site not associated with the Complainant's alleged business of providing legal services.

 

C. Additional Submissions

 

Additional submissions by the Complainant can be summarised as follows:

 

The Complainant possesses rights in the name GASWIRTH as a result of over forty years as a well-known lawyer in the USA. These rights were established long before the Respondent registered the Domain Name in 2002.

 

Complainant disputes that Martech registered the name and allowed many people with the name GASWIRTH to use the Doman Name. The Domain Name was given to the Complainant by his son Brad, his daughter Stacey and his daughter's then husband, the Respondent. The Complainant purchased the server and funded and directed the creation and setting up of the website, server and corresponding e mails and handled the on-going maintenance issues of the site. E mail correspondence shows the Respondent requesting the renewal fee in 2007 from the Complainant. When Complainant paid the fee Network solutions sent an e mail directly to the Complainant confirming the renewal. Respondent does not deny this. Complainant owned the Domain Name and was not merely a user of an email account associated with the Domain Name as the Respondent asserts.

 

Martech is now defunct and was formerly a shell company for an online mattress store. It is not apparently currently an active business. The divorce decree does not relate to the Domain Name at issue. The Respondent does not provide any evidence regarding Martech or its assets. It is difficult to see how the Domain Name would constitute an asset used in connection with Martech, This is further evidence that the Respondent and Martech have no rights or legitimate interests in the Domain Name and could not user the name in good faith without infringing the rights of the Complainant. Given that Martech's existence was forfeited in 2010 it could not have renewed the Domain Name in 2012.

 

Respondent's children's names do not include GASWIRTH their full names are Alexandra Megan Schnitzer and Josh Mitchell Schnitzer. They were born April 5, 2006 and March 28, 2008 over four years after the Domain Name was issued. The children, therefore, cannot be a legitimate interest for registering the Domain Name in 2002.

 

Even if the Respondent could demonstrate (which he cannot) that the registration of the Domain Name was in good faith, the renewal of the registration given the history of the divorce proceedings was made in bad faith. The act of disabling the web site and server occurred prior to the renewal which constitutes a new registration. There has been no legitimate use since the renewal.

 

Additional Submissions made by tRespondent can be summarised as follows:

 

This case involves reverse domain name hijacking due to complaint being made against a non–trademarked, non–servicemarked domain which anyone could have secured. The Complaint was brought by Complainant to harass Respondent.

 

Respondent objects to minor children's birth certificates being included in a public document. They are protected records. Use of them disturbs the peace of the children, an action which the Complainant is specifically Court Ordered not to do.

 

The use of the language 'held hostage' is harassment and as the Respondent has not made any demands, nor is he holding anything pending fulfilment of demands by another party, the use is superfluous at best and inflammatory to conjure negative emotions from the Panel at worst.

 

As of writing <ronaldmgaswirth.com>, <ronaldgaswirth.com>, and <rongaswirth.com> are ready available, as are all top-level domain extension variants, but Complainant has not registered them.

 

A Google search reveals many people with the Gaswirth name. The Complainant has never been referred to as simply "Gaswirth".

 

The evidence submitted by the Complainant is not sufficient to create secondary meaning in Gaswirth or Gaswirth.com.

 

Complainant is trying to divest the Respondent of property due to his personal vendetta against the Respondent in the belief that Respondent has wronged his daughter. Complainant has never owned, nor controlled the domain name and has no rights to do so now. The suggestions that the Respondent uses Complainant's name is absurd.

 

The allegation that the Respondent is involved in a 'shell company' is libellous and untrue.  Whether a business is a success is subjective.

 

The names of the children referred to by the Complainant do not formally contain 'Gaswirth', but it is the Complainant's desire to refer to the children as such.

 

The divorce decree is very relevant to this proceeding as all property was legally separated through a Court Order. The Complainant's family is trying to obtain an item they are not entitled to and they have done this routinely and sought not to turn over items to the Respondent in accordance with the Court Order since it was awarded.

 

The marriage between the Respondent and the Complainant's daughter took place in November 2001. The Complainant constructs arguments around it being later for his own purposes.

 

The Respondent did not intentionally disable the Domain Name website/server to harass the Complainant or disrupt his business.

 

Complainant's business is handled through ron@gardere.com and through a website at <gardere.com>, neither connected with the Domain Name. The Respondent is not disrupting the Complainant's business and had the rights to register the domain in question as the Complainant has no legal rights in the Domain Name.

 

The Complaint is barred on grounds of laches as the Complainant waited over ten years after divorce proceedings to file the Complaint.

 

FINDINGS

 

The Panel determines that this dispute is not suitable for determination under the Policy and, therefore, declines to make any findings of fact in these proceedings. 

 

DISCUSSION

 

Respondent argues that this claim is brought in violation of an agreement made between Complainant's daughter and Respondent regarding respective conduct following their divorce and a Court injunction. In addition there appears to be on-going litigation between the parties which may touch on the issues raised in this Complaint. As such the Panel declines to proceed to a decision in light of on-going litigation between the Parties on wide ranging issues which could make this proceeding redundant and the need for a Court to determine if this Proceeding falls within the ambit of a Court Injunction. As such this case is not suitable for determination under the Policy. This determination is neutral. It is not made in support of either party.  As a natural consequence the Domain Name will remain with the Respondent pending determination by a Court but this does not indicate any finding in favor of Respondent by the Panel.

 

DECISION

Having determined that this case is not suitable to be determined under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <gaswirth.com> domain name REMAIN WITH Respondent.

 

 

Dawn Osborne, Panelist

Dated:  April 29, 2013

 

 

 

 

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