Ridewell Worldwide, Inc. v. Ridewell Worldwide Inc. Ridewell Worldwide Inc.
Claim Number: FA1408001573810
Complainant is Ridewell Worldwide, Inc. (“Complainant”), represented by Nathan C. Belzer of Belzer PC, Georgia, USA. Respondent is Ridewell Worldwide Inc. Ridewell Worldwide Inc. (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ridewellinc.com>, registered with GODADDY.COM, LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 6, 2014; the National Arbitration Forum received payment on August 6, 2014.
On August 7, 2014, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <ridewellinc.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 August 12, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 2, 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@ridewellinc.com. Also on August 12, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 8, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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. 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <ridewellinc.com> domain name is confusingly similar to Complainant’s RIDEWELL mark.
2. Respondent does not have any rights or legitimate interests in the <ridewellinc.com> domain name.
3. Respondent registered and uses the <ridewellinc.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses the RIDEWELL mark in connection with transport services. The mark is registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,618,086 registered May 12, 2009, filed July 20, 2007). On May 14, 2012, Complainant was purchased by its now-parent L.A. Motor Coach Company, Inc. under a Purchase Agreement that included the disposition of the RIDEWELL trademark rights, among other terms and conditions.
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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Preliminary Issue: Business/Contractual Dispute Outside the Scope of the UDRP
The Panel determines that the essence of this dispute is the disposition of trademark and related rights under an Asset Purchase Agreement provided and heavily relied upon by Complainant. That contractual agreement appears to transfer rights from the former individual and corporate owners to a third party, and includes numerous other terms and conditions that may or may not have been met. Further investigation into the terms and performance of the contract is necessary to determine who is the rightful owner of the trademark and related rights, an investigation better conducted by the courts. Therefore, the Panel finds that this is primarily a business and/or contractual dispute that falls outside the scope of the UDRP.
Similarly, in Bracemart, LLC v. Drew Lima, FA 1494699 (Nat. Arb. Forum Mar. 28, 2013), the panel declined to make any findings under the UDRP when the question of whether the complainant or the respondent in that case had rights in the domain name relied heavily on the agreements between the parties. The panel found 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 also Love v. Barnett, FA 944826 (Nat. Arb. Forum May 14, 2007), where the panel stated:
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.
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 trademarks. 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.
Indeed, prior panels have routinely dismissed cases involving contractual disputes. 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). Since the dispute over the <ridewellinc.com> domain name falls outside the scope of the UDRP, the Panel dismisses this Complaint.
The Complaint is dismissed and therefore it is Ordered that the <ridewellinc.com> domain name REMAIN WITH Respondent.
Sandra J. Franklin, Panelist
Dated: September 16, 2014
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