Rajysan, Incorporated v. Gurmeet Sahani
Claim Number: FA1310001527713
Complainant is Rajysan, Incorporated (“Complainant”), represented by Adam D.H. Grant, California, USA. Respondent is Gurmeet Sahani (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <rajysan.com> and <lynxrite.com>, registered with Network Solutions.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 31, 2013; the National Arbitration Forum received payment on October 31, 2013.
On November 1, 2013, Network Solutions confirmed by e-mail to the National Arbitration Forum that the <rajysan.com> and <lynxrite.com> domain names are registered with Network Solutions and that Respondent is the current registrant of the names. Network Solutions has verified that Respondent is bound by the Network Solutions 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 November 6, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 26, 2013 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@rajysan.com, postmaster@lynxrite.com. Also on November 6, 2013, 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.
Between December 3 and 5, 2013, the representatives for the parties exchanged a number or emails concerned with the questions of whether a stay of these proceedings is appropriate or not, and whether or not the concurrent court action would be dispositive of the domain name dispute.
On December 4, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Debrett G. Lyons 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 formal response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights in RAJYSAN and LYNXRITE and alleges that the disputed domain names are confusingly similar to its respective trademarks.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant alleges that Respondent registered and used the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant owns United States Trademark Reg. No. 4,298,173 for the word mark LYNXRITE filed July 17, 2012, registered March 5, 2013.
2. Complainant claims to have common law rights in the name RAJYSAN by reason of use of its company name since 1985.
3. The disputed domain name <rajysan.com> was registered on September 9, 1997 and the disputed <lynxrite.com> domain name was registered on February 7, 1999.
4. From 1991 until September 11, 2013, Respondent was an officer and/or employee of Complainant.
5. On October 9, 2013 Complainant filed a civil lawsuit against Respondent alleging, inter alia, breach of fiduciary duty.
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.
Preliminary Issue: dispute outside scope of Policy?
On a reading of the Complaint, Panel is not satisfied that this is a case involving abusive domain name registration, but is better characterized as a business dispute arising from which there is a question concerning the rightful ownership of the disputed domain names.
Accordingly, the matter which first calls for consideration is whether the Complaint falls outside the scope of the Policy. This is an issue which takes precedence over the fact that concurrent court proceedings between the parties might also require Panel to consider whether it was properly seized of the matter.
Previous panels have found that disputes between employers and employees are outside the scope of the Policy and should be decided in a court of law. For example, in Latent Tech. Group, Inc. v. Fritchie, FA 95285 (Nat. Arb. Forum Sept. 1, 2000), the panel held that a dispute concerning an employee’s registration of a domain name in his own name and his subsequent refusal to transfer it to his employer raised issues of breach of contract and breach of fiduciary duty that were more appropriately resolved in court, not before a UDRP panel.
In Thread.com, LLC v. Poploff, D2000-1470 (WIPO Jan. 5, 2001), the panel refused to transfer the domain name, stating that the Policy did not apply because attempting “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.”
In Discover New England v. Avanti Group, Inc., FA 123886 (Nat. Arb. Forum Nov. 6, 2002), the panel found that a dispute centering on a contractual question was outside the scope of the Policy.
In Draw-Tite, Inc. v. Plattsburgh Spring Inc., D2000-0017 (WIPO Mar. 20, 2000), it was said:
This Panel well recognizes that its jurisdiction is limited to providing a remedy in cases of “the abusive registration of domain names,” or “Cybersquatting.” . . . Like any other tribunal, however, this Panel can determine whether it has jurisdiction only from the facts and arguments presented to it.
Panel notes here other similar decisions. See, for example, 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.”); 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.”); 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.
In view of Respondent's failure to submit a response, 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.
Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory (seeVertical 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.”).
Here, Complainant alleges that Respondent was terminated from his position as an officer and employee of Complainant on September 11, 2013 because of evidence indicating Respondent breached his fiduciary duty to Complainant.
Complainant asserts that it is the true owner of the disputed domain names which were originally registered for the benefit and use of Complainant and that Respondent has no rights or legitimate interests in the domain names.
Complainant goes on to allege that Respondent has engaged in actions to usurp control of the disputed domain names and cut Complainant off from using the domains, including changing the access passwords and the DNS Name Servers.
Complainant states that Respondent intends to compete directly with complainant, and divert business from Complainant.
Panel considers these are all serious allegations, not to be accepted lightly. As such, it makes the following observations.
Respondent is not a cybersquatter. There is no unequivocal evidence before Panel that Respondent has registered the domain names opportunistically or in breach of its fiduciary duty or other possible obligations. It is far from clear what those obligations might have been since the Complaint is ambivalent in key respects. It is stated that Respondent was not merely an employee of the complainant company but was either one of its executive officers or was permitted over a very long period to hold himself out as such. During that time the domain names were registered in the Respondent’s own name. That action might not have been proper but equally there is no clear evidence of what should have been the appropriate conduct. Certainly there seemed to have been no challenge to that action (or, an indifference to it) by Complainant for many years.
Complainant has not submitted a screenshot or given a description of the resolving website(s) and there is otherwise no evidence whatsoever to support the claim that Respondent intends to compete directly with, and divert business from, Complainant.
Panel can see no evidence to suggest that, some 14 years prior to the Complaint, Respondent registered the domain names in bad faith. Indeed, Complainant goes so far as to say that Respondent’s actions prior to his termination of employment were not objectionable.
Moreover, Complainant sought to partially regulate its trademark affairs by filing an application with the USPTO for LYNXRITE in July, 2012, at which point still no action was taken in respect of the domain names.
Panel is dissatisfied with Complainant’s assertion that Respondent has no rights or a legitimate interest in the domain name and believes that issue is best left to a court or other forum with greater inquisitive powers.
On balance, the Panel considers that there is ample weight in prior UDRP decisions to justify its finding that the matter is properly one for another forum.
Having decided that the dispute is outside the ambit of the Policy, the Panel concludes that relief shall be DENIED and so it is Ordered that the <rajysan.com> and <lynxrite.com> domain names REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: December 11, 2013
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