Dream Musician, Inc. v. InterconX Corporation
Claim Number: FA0610000820332
Complainant is Dream Musician, Inc. (“Complainant”), represented by Cynthia A. Casby, of Holland & Knight LLP, 633 W. Fifth Street, Suite 2100, Los Angeles, CA 90071. Respondent is InterconX Corporation (“Respondent”), 8500 Fordson Road, Richmond, VA 23229.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <dreammusician.com> and <dreammusician.org>, registered with Bulkregister, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 16, 2006; the National Arbitration Forum received a hard copy of the Complaint on October 23, 2006.
On October 17, 2006, Bulkregister, Llc. confirmed by e-mail to the National Arbitration Forum that the <dreammusician.com> and <dreammusician.org> domain names are registered with Bulkregister, Llc. and that Respondent is the current registrant of the name. Bulkregister, Llc. has verified that Respondent is bound by the Bulkregister, Llc. 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 October 26, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 15, 2006 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@dreammusician.com and postmaster@dreammusician.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 20, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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." 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 makes the following assertions:
Complainant holds a registration with the United States Patent and Trademark Office (“USPTO”) for the DREAM MUSICIAN trademark (Reg. No. 3,007,583, issued October 18, 2005).
Complainant is using the DREAM MUSICIAN mark in connection with its operation of a business providing musicians with remixed original music that can be downloaded, allowing them to play along with popular songs.
The disputed domain names are vital to Complainant’s business, as Complainant intends to operate as an online business.
Complainant and Respondent were originally business partners, and Complainant requested that Respondent register the domain names <dreammusician.com> and <dreammusician.org> in Respondent’s name in connection with the creation of that business partnership.
Respondent registered the <dreammusician.com> domain name on August 11, 1999 and the <dreammusician.org> domain name on September 13, 2002.
Respondent had an oral agreement with Complainant that the disputed domain names would be transferred to Complainant upon completion of Complainant’s incorporation.
Subsequently, Respondent refused to transfer the disputed domain names, and demanded $21,000 for web hosting and management fees in connection with the development of the domains, as well as an additional $25,000 per year to lease the domains.
Currently, the disputed domain names forward to Complainant’s website located at the <dream-musician.com> domain name.
There is no evidence that Respondent has engaged in any demonstrable preparations to use the disputed domain names in connection with any other business operations.
Respondent’s <dreammusician.com> and <dreammusician.org> domain names are identical to Complainant’s DREAM MUSICIAN mark.
Respondent does not have any rights or legitimate interests in the domain names <dreammusician.com> and <dreammusician.org>.
Respondent registered and uses the <dreammusician.com> and <dreammusician.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
This dispute is outside the jurisdiction of the 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."
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 a 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.”
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.
JURISDICTION
OF THE PANEL
Complainant admits in its Complaint that, as part of a business relationship between them, the disputed domain names were initially registered in the name of Respondent with Complainant’s knowledge and consent. This admission makes it impossible for Complainant to succeed on the merits of its Complaint, because it cannot prove that the domains were registered in bad faith within the meaning of Policy paragraph 4(a)(3). Accordingly, and without more, the Complaint fails.
Moreover, and more importantly, the central character of the dispute presented by this Complaint is outside the jurisdiction of the Policy, which is intended to address abusive cybersquatting, not garden-variety claims of breach of contract and the like. In this regard, the instant case is on all fours with the case considered in The Thread.com, LLC v. Poploff, D2000-1470 (WIPO Jan. 5, 2001). There the presiding administrative panel ruled as follows:
To attempt to shoehorn what is essentially a business dispute between
former partners into a proceeding to adjudicate cybersquatting is, at its core,
misguided, if not a misuse of the Policy [citing Latent Technology Group, Inc.
v. Fitchie, FA 95285 (Nat. Arb. Forum Sep. 1, 2000].
We entirely agree.
Accordingly, the Panel having determined that the instant dispute is outside the jurisdiction of the Policy, it is Ordered that the Complaint herein be, and it is hereby, DISMISSED.
Terry F. Peppard, Panelist
Dated: November 29, 2006
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