Michael Mann / Medical Recovery Services v. domain reg / interhelp
Claim Number: FA1403001546676
Complainant is Michael Mann / Medical Recovery Services (“Complainant”), represented by Dean Krelic, California, USA. Respondent is domain reg / interhelp (“Respondent”), represented by Paul Foldes, Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <medicalrecoveryservices.com>, registered with GoDaddy.com, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 4, 2014; the National Arbitration Forum received payment on March 4, 2014.
On March 5, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <medicalrecoveryservices.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 March 10, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 31, 2014 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@medicalrecoveryservices.com. Also on March 10, 2014, 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 March 31, 2014.
On April 7, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Policy ¶ 4(a)(i)
Policy ¶ 4(a)(ii)
Policy ¶ 4(a)(iii)
B. Respondent
Policy ¶ 4(a)(i)
Policy ¶ 4(a)(ii)
Policy ¶ 4(a)(iii)
Complainant is Michael Mann / Medical Recovery Services of Woodland Hills, CA, USA. Complainant appears to claim rights in the mark MEDICAL RECOVERY SERVICES based on the formation of its company by the same name and the nature of the company’s business functions. Complainant asserts that Respondent registered the domain name on Complainant’s behalf.
Respondent is domain reg / interhelp of Alexandria, VA, USA. Respondent claims to have earned rights in the disputed domain name <medicalrecoveryservices.com> as a partial owner of the company, Medical Recovery Services, Inc. Respondent registered the disputed domain name on or about September 12, 2010.
Both parties provide various pieces of “correspondence” and attachments regarding business formation and disputes related thereto, only a minimum of which appear to support and track the requisite policies and necessary elements of the UDRP.
Preliminary Issue: Dispute Outside the Scope of the UDRP
Respondent’s submissions illustrates that the underlying dispute between the parties concern the respective rights each party has in regards to taking actions on behalf of Complainant (e.g., the registration, use, or control over Internet domain names). Respondent presents, in its Annex II, evidence that it acquired a 25% ownership interest in Complainant. Contrarily, Complainant, through Mr. Mann, frames the situation as one in which Respondent was an arms-length service provider who took Complainant’s money and then refused to transfer the domain name. The Panel notes that the record indicates that Respondent, Complainant, and Mr. Mann have some relationship that is more than an ordinary arms-length transaction between a business and a domain name registration service provider. The parties, through their own actions and/or those of their legal representatives, engaged in the formation of Medical Recovery Services, Inc. and at some point fell into disagreement regarding various aspects of the business including the ownership of the disputed domain name.
The Panel further notes that neither party presents any evidence to substantiate the content viewable through this disputed domain name’s website—evidence which is ordinarily paramount to a cybersquatting dispute under the UDRP.
The Panel finds that this is a business and/or contractual dispute between two companies that falls outside the scope of the UDRP. In Bracemart, LLC v. Drew Lima, the Panel declined to make any findings under the UDRP when there was evidence that both the complainant and the respondent at some point acted in an official capacity in the management of the company, and that “[b]ased upon this reasoning, the Panel concludes that the instant dispute relates to contractual interpretation and/or whether the relationship between Complainant and Respondent was one of employer-employee or one of partnership, which determination falls outside the scope of the Policy.” See FA 1494699 (Mar. 28, 2013). Because the question of whether the complainant or the respondent in that case had rights in the domain name relied heavily on the corporate structure of the companies involved, the Panel could not resolve the dispute under the UDRP. See id.
In Michael J. Fara v. Identity Protection Serv. / Identity Protect Ltd., the Panel held that the dispute at hand was beyond the scope of the UDRP because the complainant alleged (a) that it paid $6,995.00 to a third-party for the domain name, was (b) never given the access information for the domain name, (c) the third-party ended up selling the domain name off to the respondent, and (d) the third-party kept the complainant’s money. The panel in that dispute noted that the complainant’s arguments predominately concerned the breach of contract by the third-party domain name seller, and thus presented a case that hinged primarily on the applicable laws governing contract disputes rather than the UDRP. See Michael J. Fara v. Identity Protection Serv. / Identity Protect Ltd., FA 1454516 (Nat. Arb. Forum Sept. 11, 2012).
The panel in Luvilon Indus. 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 submissions by the parties in the present matter, the Panel here concludes that the instant dispute contains questions of contractual interpretation as well as other issues of corporate law and governance that fall outside the scope of the UDRP. Because the Panel makes such a finding, the Panel 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).
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.
See “Preliminary Issue” discussion above.
See “Preliminary Issue” discussion above.
See “Preliminary Issue” discussion above.
Because the Panel has found that this matter is outside the scope of the UDRP, the Panel orders that Complainant’s requested relief be DENIED and that this case be dismissed.
Darryl C. Wilson, Panelist
Dated: April 21, 2014
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