Frazier Winery LLC v. Al
Hernandez
Claim Number: FA0611000841081
PARTIES
Complainant is Frazier Winery, LLC (“Complainant”), represented by Lawrence
G. Townsend, of Owen Wickersham & Erickson,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <frazierwinery.com>, registered with Dotster.
PANEL
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.
Hon. Nelson A. Diaz as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on November 13, 2006; the
National Arbitration Forum received a hard copy of the Complaint on November 15, 2006.
On November 14, 2006, Dotster confirmed by e-mail to the National
Arbitration Forum that the <frazierwinery.com> domain name is
registered with Dotster and that the
Respondent is the current registrant of the name. Dotster
has verified that Respondent is bound by the Dotster
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 November 17, 2006, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of December 7, 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@frazierwinery.com by
e-mail.
A timely Response was received and determined to be complete on December 7, 2006.
On December 13, 2006, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Hon. Nelson A. Diaz as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
In its Complaint, Complainant contends that it engaged Respondent to
undertake services with regard to its website and domain name <frazierwinery.com>, as well as
to provide additional services and materials.
Complainant contends further that Respondent did not meet its
obligations, and, apparently in response to Complainant’s disputing of its
payment to Respondent, Complainant contends that Respondent fraudulently
changed the registration for the <frazierwinery.com>
domain name from Complainant to Respondent.
B. Respondent
Respondent agrees that he was engaged by Complainant to undertake
services with regard to its website and domain name <frazierwinery.com>, as well as to provide additional
services and materials. However,
Respondent contends that the initial $2,000 payment made by Complainant was
solely for the first year of website related services, all other services to be
invoiced separately. Respondent admits
that he changed the registration for the <frazierwinery.com>
domain name from Complainant to himself, but contends that such change was done
permissively and with Complainant’s knowledge.
Respondent does not claim any right to the domain name <frazierwinery.com> or the
website thereon, but contends that he has always and continues to act on behalf
of Complainant while this dispute is resolved.
FINDINGS
The Panel finds that there was a contract
between the parties relating to the provision of services by Respondent with
regard to Complainant’s <frazierwinery.com>
domain name and website. The Panel finds
further that this dispute is one regarding the parties’ respective rights and
obligations under that contract.
Accordingly, this dispute is outside the scope of the UDRP and the Panel
declines to make any further findings.
DISCUSSION
The Complaint does not
raise issues of abusive registration of the <frazierwinery.com> domain
name, because
the disputed domain name was registered and hosted by Respondent pursuant to a
business relationship with Complainant.
Although the parties dispute Respondent’s right or obligation to do so
under the terms of their contact, both parties acknowledge that there was a
contract under which Complainant engaged Respondent to undertake services
related to the <frazierwinery.com> domain name. The Complaint alleges issues regarding the
rightful possession of the domain name registration for the <frazierwinery.com> domain name pursuant to the
parties’ agreement. Consequently, this dispute is
properly one that arises under state law or common law, but in any event is
outside of the scope of the UDRP. See
Commercial Publ’g Co. v. EarthComm., Inc. FA 95013 (Nat. Arb. Forum July 20, 2000) (finding that the Policy’s administrative procedure
is “intended only for the relatively narrow class of cases of ‘abusive
registrations’ . . . The [P]olicy relegates all
‘legitimate disputes’ to the courts”); see also Discover New Eng. v.
Avanti Group, Inc. FA 123886
(Nat. Arb. Forum Nov. 6, 2002) (finding the dispute outside the scope of
the UDRP because the dispute centered on the interpretation of contractual
language and whether or not a breach occurred).
Because the dispute is outside the scope of the UDRP, the Panel makes no
further findings regarding the parties’ contentions.
DECISION
Having found that this dispute is outside the scope of the UDRP, the
Panel concludes that relief shall be DENIED.
Hon. Nelson A. Diaz, Panelist
Dated: December 27, 2006
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