Tom Patton c/o IDC AMERICAS, LLC v. Darin
Stemwedel d/b/a Cafifornia Organic Fertilizers, Inc.
Claim Number: FA0211000135010
PARTIES
Complainant
is Tom Patton c/o IDC AMERICAS, LLC, Fresno, CA (“Complainant”) represented by Mark E. Crone. Respondent is Daren
Stemwedel d/b/a California Organic Fertilizers, Inc.,
Fresno, CA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The
domain names at issue are <idcamericas.com>
and <idcamericas.net>, registered with Go Daddy Software, Inc.
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.
Louis E. Condon as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the
National Arbitration Forum (the “Forum”) electronically on November 25, 2002;
the Forum received a hard copy of the Complaint on December 6, 2002.
On November 26, 2002, Go Daddy Software, Inc. confirmed by
e-mail to the Forum that the domain names <idcamericas.com>
and <idcamericas.net> are registered with Go Daddy Software, Inc. and that the Respondent is the current
registrant of the names. Go Daddy Software, Inc. has verified
that Respondent is bound by the Go
Daddy Software, Inc. registration agreement and has thereby agreed to
resolve domain-name disputes brought by third parties in accordance with
ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 16, 2002, a Notification of
Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of January 6, 2003 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent via e-mail,
post and fax, to all entities and persons listed on Respondent’s registration
as technical, administrative and billing contacts, and to postmaster@idcamericas.com
and postmaster@idcamericas.net by e-mail.
A timely Response was received and
determined to be complete on January 6, 2003.
An additional submission was received
from the Complainant on January 10, 2003. This filing was timely according to
The Forum’s Supplemental Rule #7. Likewise, a timely response to the additional
submission was received from the Respondent. Both documents were considered by
the panel.
On January 15,
2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Louis E. Condon as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain names be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Thomas R. Patton, the Complainant, was
President, CEO and a 50% owner of Infinet Broadband, Inc.(“Infinet”) from
December 2001 to approximately September 2002. The other 50% of Infinet was owned
by Timothy and Deborah Stemwedel, parents of Daren Stemwedel, the Respondent
herein, who was an employee of Infinet. According to the Complainant, Daren
Stemwedel was a subordinate of Patton in Infinet.
In February, 2002, Complainant instructed
Daren to register the <idcamericas.com> and <idcamericas.net>
names for a data center business venture being organized by Complainant to be
known as IDC Americas. IDC Americas was intended to be unrelated to the
business of Infinet. Daren Stemwedel was aware that the domain names were
intended for a separate business. Unbeknownst to Complaiant, and presumably due
to the disharmony between Mr. Patton and the Stemwedels, Daren registered the
domain names in the name of his parents’ company, the co-respondent California
Organic Fertilizers, Inc. Complainant formed the legal entity IDC Americas, LLC
on February 20, 2002. The request for the domain names was granted on February
23, 2002. At the time, Complainant did not disclose the formation of IDC
Americas to his partners, the Stemwedels. Complainant has a United States
trademark application pending for the name IDC Americas, the name of his
limited liability company.
Subsequent to the registration of the
domain names, Infinet Broadband, Inc. was dissolved by the Stemwedels, against
Complainant’s wishes. The assets of Infinet were sold at public auction and
repurchased by the Stemwedels, who now operate a wireless ISP named Maverick
Broadband which delivers internet connectivity. When Complainant contacted
Daren Stemwedel to initiate the transfer of the disputed names to his new
company he was informed that the Stemwedels own the names. According to the
Complainant, since Maverick Broadband does not offer DAT Center products or
services, it is reasonable to assume that the Stemwedels’ unwillingness to
release the domain names to Complainant and his business is intended solely to
prevent Complainant from using the names for the benefit of his new company.
B.
Respondent
Tom Patton was President, CEO and 50% owner
of Infinet Broadband, Inc. from December 2001 to approximately September 2002.
The other 50% of Infinet was owned by Timothy and Deborah Stemwedel. Infinet
was financed entirely by California Organic Fertilizers, Inc.(“COFI”), which
held a secured note on all assets of Infinet. COFI is fully owned by Mr. and
Mrs. Stemwedel.
During the stated time, Daren Stemwedel
was an employee of Infinet; however, at no time was he subordinate to
Complainant. According to the Stemwedels, Daren served as Operations Manager to
the organization, reporting directly to them as to the daily progress of the
business and the activities of the Complainant. In this role he served to
protect the considerable investment being made by COFI.
Complainant requested that Daren register
the domain names for a data center product being organized by Infinet, to be
known as Infinet Data Centers (IDC). IDC was to be a product line offered by
Infinet encompassing Infinet’s data hosting and data-center services. All
domain names associated with Infinet were registered to COFI. This was an
executive decision made by Timothy and Deborah Stemwedel with the intent of
further protecting COFI’s investment. This was done in good faith and with the
knowledge of the Complainant. At this early stage of Infinet’s existence there
was no disharmony between Complainant and the Stemwedels.
Subsequent to the registration of the
domain names, Infinet Broadband, Inc. was dissolved by the Stemwedels. Per a
secured note, all assets held by Infinet were foreclosed on by COFI. A Public
Sale of Assets was held by COFI in which bids were accepted from a number of
other entities. The amount of the secured note superceded all bids. COFI
elected to retain all assets by way of a non-cash purchase. A new corporation,
Maverick Broadband, Inc. (“Maverick”) was then formed by the Stemwedel family
to take over all material, intangible, and contractual assets purchased from
Infinet.
The Stemwedels are rightfully retaining
ownership of the domains in question for the use with potential future business
projects. Along with COFI and Maverick, the Stemwedels operate companies in a
diverse array of industries including agriculture, software development, web
design, data hosting services, and Internet access. The names <idcamericas.com>
and <idcamericas.net> are not specific to the Data Center
industry. They may be used for any service or products involving the initials
IDC. Considering the increasing rarity of choice “.com” and “.net” TLD names,
the loss of <idcamericas.com> and <idcamericas.net>
would be a costly loss of a valuable intangible asset. These names are not
being retained by the Stemwedels for the purpose of tarnishing the reputation
of the Complainant or IDC Americas, or to negatively affect their business in
any way.
C.
Additional Submissions
On January 10, 2003, Complainant became
aware that Respondent has a website at <idcamericas.net> advertising
the demise of their (and Complainant’s) former business, Infinet Broadband, and
forwarding individuals to the website for Respondent’s current business,
Maverick Broadband. Complainant further notes that while Maverick Broadband
does not offer data center services, it does offer internet connectivity
services in competition with Complainant’s business.
Respondents note that, although he was
CEO of Infinet Broadband, Inc. at the time he organized IDC Americas, LLC,
Complainant did not disclose the information to his partners, the Stemwedels.
Presumably, according to them, this information was not disclosed because he
knew that the Stemwedels would be adamantly opposed to the formation of the new
organization, and he did not want to risk his position as CEO. The Stemwedels
became aware of the IDC Americas, LLC organization in September 2002. At this time
the Stemwedels also became aware of another organization, Infinet, Inc. of
Nevada. Allegedly, there was evidence of Complainant redirecting funds intended
for Infinet of California to this
Nevada corporation. Respondents
say that these acts along with many other unnamed incidences of Complainant’s
being dishonest with the Stemwedels were the key factors leading to the
decision to dissolve Infinet Broadband, Inc. Further, ownership of the domain
names is rightfully being retained in order to protect the reputation of the
Stemwedels, COFI, and Maverick Broadband, as well as the inherent value of a
well-positioned .com TLD.
FINDINGS
The crucial issue between the two parties
is who should be considered the rightful owner of the <idcamericas.com>
and <idcamericas.net> domain names. The parties were joint
owners of Infinet Broadband, Inc., which was dissolved some time after the
disputed domain names were registered. Infinet’s assets were sold via public
auction and repurchased by Respondent. Although not addressed by either party,
the Panel must decide whether this dispute falls within the scope of the UDRP
Policy. In the Panel’s opinion, it does not.
DISCUSSION
The scope of a
proceeding under the ICANN Policy is quite narrow; it is not an appropriate
forum for the adjudication of business disputes. As set forth so cogently by
Judge David H. Bernstein “the above factual recitation should make clear, this
is not a garden-variety cybersquatting case. In fact, it is not a
cybersquatting case at all. Rather, this appears to be a breach of contract and
breach of fiduciary duty dispute between former partners. The only arguable
reason that Complainant is seeking relief in this forum is that the property at
issue is a domain name.” See The
Thread.com,LLC v. Poploff, No.D2000-1470 (WIPO Jan. 5, 2001). See also Commercial Publishing Co. v.
EarthComm., Inc. FA 95013 (National Arbitration Forum July 20, 2000)
(stating that the Policy is intended to resolve only a narrow class of cases of
“abusive registrations” and does not extend to cases where a registered domain
name is subject to legitimate disputes, which are relegated to the
courts.) See also Pacific Aircraft Incorporated v. Pacific Aircraft Corporation FA97645
(National Arbitration Forum August 14, 2001) (stating that a domain name
dispute is not a proper jurisdiction to determine one’s contractual or quantum
merit rights to recover for such services.)
DECISION
For the reasons set forth above, i.e. the dispute does not fall within
the parameters of the Policy.
Accordingly, the relief requested is DENIED and the Respondent
may RETAIN the domain names.
Louis E. Condon, Panelist
Dated: January 22, 2003
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