Glaramara, LLC v. Heydar Bayramov / Molten WoW
Claim Number: FA1503001609055
Complainant is Glaramara, LLC (“Complainant”), represented by Matthew H. Swyers of The Trademark Company, PLLC, Virginia, USA. Respondent is Heydar Bayramov / Molten WoW (“Respondent”), represented by Adam Taylor of Adlex Solicitors, United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <molten-wow.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Richard Hill as Presiding Panelist, Honorable Bruce E. Meyerson (Ret.) and Honorable Neil Anthony Brown, QC, as Panelists.
Complainant submitted a Complaint to the Forum electronically on March 11, 2015; the Forum received payment on March 11, 2015.
On March 13, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <molten-wow.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 20, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 2015 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@molten-wow.com. Also on March 20, 2015, 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 9, 2015.
On April 27, 2015, pursuant to Respondent's request to have the dispute decided by a three-member Panel, the Forum appointed Richard Hill as Presiding Panelist, Honorable Bruce E. Meyerson (Ret.) and Honorable Neil Anthony Brown, QC as Panelists.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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
Complainant states that Respondent is a former employee of Complainant’s former businesses. Those parties entered into a sales agreement concerning the disputed domain name; in particular, Respondent had authority to act as proxy agent and registered the disputed domain name for Complainant in that capacity. The disputed domain name was subsequently fraudulently transferred to Respondent. The Registrar has refused to recognize that the transfer was fraudulent.
Complainant asserts common law rights in the MOLTEN mark dating back to August 5, 2009. The mark is used on or in connection with the sale of online video games and computer games. The disputed domain name is confusingly similar to the MOLTEN mark.
For the reasons set forth below, the Panel will not summarize the Complainant’s other contentions in any great detail.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is neither commonly known as the domain name or in possession of licensing rights. The domain name resolves to a webpage that offers competing services. Further, Complainant previously held the disputed domain name but Respondent illegally hijacked it.
Respondent has engaged in bad faith registration and use. Respondent registered the domain name for the purpose of disrupting Complainant’s business, and Respondent is attempting to commercially benefit from a likelihood of confusion. Complainant previously held the domain name but Respondent illegally hijacked it. Also, Respondent’s illegal hijacking of the disputed domain name shows Respondent had actual knowledge of Complainant’s rights.
B. Respondent
Respondent alleges that the Complaint is based entirely on a deliberately fabricated version of events, part of a fraudulent scheme whereby the Complainant’s principal, who formerly had a limited role in relation to the “Molten Wow” business (“M-W”), is now seeking to gain control of M-W and/or to damage it for the benefit of his own competing business. Respondent conceived M-W and has always been the owner and controller thereof. Respondent has never been an “employee” or “agent” of Complainant nor of any of the
various companies allegedly connected with him. Respondent provides a detailed factual account to support his allegation. Respondent alleges that Complaint Exhibit 5 (“the Agency Contract”) is a doctored version of the document that he signed. For the reasons set forth below, the Panel will not summarize the Respondent’s factual account in any greater detail.
According to Respondent, the subject matter of this disputed addresses a business disputed between two parties, and is thus outside the scope of the UDRP.
According to Respondent, Complainant has not presented enough evidence to establish common law rights in the mark.
Respondent states that he has rights or legitimate interests in the disputed domain name because it is used in connection with a bona fide offering of goods or services.
Respondent contends that he has not acted in bad faith. Respondent argues he has rights or legitimate interests in the disputed domain name, and that this negates a finding of bad faith.
Respondent requests a finding of Reverse Domain Name Hijacking.
Both parties allege that they are the principal of the contractual agreement regarding the disputed domain name, and accuse each other of being the agent. They provide divergent accounts of key facts and dispute the authenticity of documents in the case file.
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.
Before considering the three elements of the Policy, the Panel must first consider whether the instant dispute is properly within the scope of the UDRP.
Both parties allege that they are the principal of the contractual agreement regarding the disputed domain name, and accuse each other of being the agent. The parties provide detailed accounts of the facts to support their case, and documentation as evidence. But the accounts diverge significantly and Respondent alleges that Complainant has falsified a key document: the contractual agreement provided in Complainant’s attached Exhibit 5; and that Respondent was not given a copy of the original agreement.
The Panel finds that the instant case involves a business and/or contractual dispute between two companies that falls outside the scope of the UDRP. In Love v. Barnett, FA 944826 (Nat. Arb. Forum May 14, 2007), the panel found that complex cases such as the one presented here may be better decided by the courts than by a UDRP panel:
When the parties differ markedly with respect to the basic facts, and there is no clear and conclusive written evidence, it is difficult for a Panel operating under the Rules to determine which presentation of the facts is more credible. National courts are better equipped to take evidence and to evaluate its credibility.
Consequently, the Panel dismisses 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).
Since the Panel finds that the instant case is not within the scope of the Policy, it will not analyze the three elements of the Policy.
Since the Panel finds that the instant case is not within the scope of the Policy, it will not analyze the three elements of the Policy.
Since the Panel finds that the instant case is not within the scope of the Policy, it will not analyze the three elements of the Policy.
Paragraph 1 of the Rules defines Reverse Domain Name Hijacking:
Reverse Domain Name Hijacking means using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name.
The Respondent invokes this provision when it requests the Panel to find that the Complainant is using the Policy in a bad faith attempt to deprive a registered domain name holder of a domain name.
The general conditions for a finding of bad faith on the part of the Complainant are well stated in Smart Design LLC v. Carolyn Hughes, <smartdesign.com> D2000-0993 (WIPO, October 18, 2000):
Clearly, the launching of an unjustifiable Complaint with malice aforethought qualifies, as would the pursuit of a Complaint after the Complainant knew it to be insupportable.
These conditions are confirmed in Goldline International, Inc. v. Gold Line, <goldline.com> D2000-1151 (WIPO, January 4, 2001) and Sydney Opera House Trust v. Trilynx Pty. Limited, <sydneyoperahouse.net> D2000-1224 (WIPO, October 31, 2000) (where the condition is stated as “the respondent must show knowledge on the part of the complainant of the respondent’s right or legitimate interest in the disputed domain name and evidence of harassment or similar conduct by the complainant in the face of such knowledge”), which in turn cites Plan Express Inc. v. Plan Express, <planexpress.com> D2000-0565 (WIPO, July 17, 2000).
As already noted, the parties dispute the facts and the present proceedings are not an appropriate venue in which to determine which version of the facts is correct. Thus, the Panel is not in a position to conclude that the Complainant acted with malice or that it knew that its case was insupportable.
Consequently, the Panel dismisses the request for a finding of Reverse Domain Name Hijacking.
Having determined that the instant case is not within the scope of the ICANN Policy, the Panel concludes that relief shall be DENIED. The request for a finding of Reverse Domain Name Hijacking is DENIED.
Accordingly, it is Ordered that the <molten-wow.com> domain name REMAIN WITH Respondent.
Richard Hill, Presiding Panelist
Hon. Bruce E. Meyerson (Ret.), Panelist Hon. Neil Anthony Brown, QC, Panelist
Dated: May 3, 2015
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