national arbitration forum

DECISION

North American Reishi ltd., President Jeff Chilton v. J McDowell, GoTofino.com

Claim Number: FA1402001544834

PARTIES

Complainant is North American Reishi ltd., President Jeff Chilton (“Complainant”), British Columbia, Canada. Respondent is J McDowell, GoTofino.com (“Respondent”), British Columbia, Canada.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <nammex.com>, registered with GoDaddy.com, LLC.

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.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 21, 2014; the National Arbitration Forum received payment on February 21, 2014.

On February 21, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <nammex.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 February 25, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 17, 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@nammex.com. Also on February 25, 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.

A timely Response was received and determined to be complete on March 17, 2014.

Complainant submitted a timely Additional Submission on March 21, 2014.

Respondent submitted a timely Additional Submission on March 25, 2014.

On March 27, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A. Complainant

Complainant is North American Reishi ltd., President Jeff Chilton. Respondent is J McDowell, GoTofino.com
Complainant has rights in the NAMMEX mark, used in connection with a mushroom-related business. Complainant owns a trademark registration for the NAMMEX mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,607,913 registered August 13, 2002).
The <nammex.com> domain name is identical to Complainant’s NAMMEX mark.
Respondent does not have any rights or legitimate interests in the <nammex.com> domain name.
Respondent is not commonly known by the disputed domain name.
Respondent was contracted to build, maintain, and host Complainant’s website. Respondent and Complainant agreed to move the <nammex.com> domain name to the GoDaddy server, and Complainant agreed to provide her with the requisite authorization code to transfer the disputed domain name. Upon transferring the disputed domain name to the GoDaddy server, Respondent registered the disputed domain name in her own name without Complainant’s consent.
Respondent registered and is using the <nammex.com> domain name in bad faith.
Respondent is employed by Complainant and registered the disputed domain name in Respondent’s own name without Complainant’s consent.

B. Respondent

Respondent is the spouse of Complainant, Jeff Chilton. Respondent did not act in bad faith when registering the <nammex.com> domain name in her name, and Respondent has continued to provide website, email, and consulting services to Complainant in good faith.
Respondent has an interest in Complainant’s business. Respondent believes the business is a part of the marital separation negotiations and Respondent may be receiving an ownership stake in the business.
Respondent and Complainant Chilton are parties to a legal separation proceeding pursuant to applicable Canadian law.

C. Complainant’s Additional Submission

Complainant Chilton and Respondent are not married in the traditional sense. The parties have lived in a common law relationship since December 2005, and by law after two years of living together they are considered married. Canadian law states that all property brought into such a relationship remains the property of each individual partner, and this property is referred to as “Excluded Property.” Therefore, no prior asset of Complainant Chilton, such as the <nammex.com> domain name, can be claimed as an asset of Respondent.
Complainant did not give Respondent authority to registered the <nammex.com> domain name in her own name, and Respondent has not demonstrated any written permission or orders from Complainant indicating otherwise.
Contrary to Respondent’s contentions, Complainant’s business is not part of the marital separation negotiations. The idea had been discussed previously, but it was determined in September 2013 that part ownership in Complainant’s business would not be part of the negotiations.

D. Respondent’s Additional Submission

Respondent states that there is an ongoing civil and marital dispute going on, even if it is not a formal court proceeding.

Civil Dispute Outside the Scope of the UDRP

Complainant Chilton and Respondent are involved in a common law marriage pursuant to Canadian law, and the parties are currently separated. Complainant explains that he and Respondent have never been married in the traditional sense. Complainant states that the parties have lived in a common law relationship since December 2005, and by law after two years of living together they are considered married. Respondent claims the disputed domain name is a family asset to be dealt with in the separation negotiations. Complainant points to Canadian law, which states that all property brought into such a relationship remains the property of each individual partner, and this property is referred to as “Excluded Property.” Therefore, Complainant contends no prior asset of Complainant, such as the <nammex.com> domain name, can be claimed as an asset of Respondent.

The family law dispute surrounding the disputed domain name falls outside the scope of the UDRP. 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). Accordingly, Complainant’s Complaint is dismissed without prejudice.

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated: April 8, 2014