Leslie Esdaile Banks v. LBP
Enterprises
Claim Number: FA0701000893428
PARTIES
Complainant is Leslie Esdaile Banks (“Complainant”), represented by Theodora
H. Brown, of Law Offices of Theodora H. Brown,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vampirehuntress.com>, registered
with Tucows
Inc.
PANEL
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.
Timothy D. O’Leary as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on January 19, 2007; the
National Arbitration Forum received a hard copy of the Complaint on January 19, 2007.
On January 22, 2007, Tucows Inc. confirmed by e-mail to the National
Arbitration Forum that the <vampirehuntress.com> domain name is
registered with Tucows Inc. and that the
Respondent is the current registrant of the name. Tucows Inc.
has verified that Respondent is bound by the Tucows
Inc. 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 January 26, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of February 15, 2007 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@vampirehuntress.com by
e-mail.
The National Arbitration Forum received an electronically-submitted
copy of the Response on February 15, 2007,
within the deadline for Response, but did not receive a hard copy until after
the deadline for Response. As a
result, the National Arbitration Forum has deemed the Response deficient
pursuant to Supplemental Rule 5(a).
On February 21, 2007, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Timothy D. O’Leary as Panelist.
Preliminary Issue #1:
Deficient Response
The National Arbitration Forum did
not receive the Response in hard copy form until after the deadline for
Response. In other Correspondence with
the National Arbitration Forum, Respondent submitted Federal Express tracking
records attempting to prove that it shipped a hard copy of the Response on time
and that it paid for a timely delivery. I consider the “Other Correspondence” submitted
by Respondent in deciding whether to consider the Response.
Respondent submitted a timely Response electronically. The failure to follow up with a hard copy
submission on time is a technical violation of the rules and does not warrant
disregarding the Response. See Strum v. Nordic Net
Preliminary Issue #2: Deficient Complainant’s Additional Submission
Complainant’s
Additional Submission was received by the Forum after the deadline for submissions. The Forum held that the submission was not in
compliance with Supplemental Rule #7. I
elect to consider this Submission along with Respondent’s Response in making my
decision.
Preliminary Issue #3:
Outside the Scope of the UDRP
Complainant alleges that she hired Respondent in 2005 to provide online publication relations services for her and that she granted Respondent access to her username and password so that Respondent could change the host server established by Complainant’s former web operations manager. Complainant claims that after a fee dispute in 2006, Respondent changed the contact information to list itself as the registrant of the <vampirehuntress.com> domain name and also changed the registrar without Complainant’s authorization. Complainant also claims that Respondent has since disabled Complainant’s website and forced Complainant to establish a new website at the <vampire-huntress.com> domain name. Further complicating matters, Complainant alleges that Respondent has accepted money from customers through Complainant’s PayPal account but never sent them Complainant’s books and also is still using Complainant’s name, image, and likeness to promote Respondent’s public relations business even though Complainant sent it a cease-and-desist letter.
Respondent does not contest any of
Complainant’s allegations as to the elements of the Policy but only provides a
lengthy timeline of the events leading up to this dispute. In its Response, Respondent acknowledges the
fee dispute with Complainant and states that it told Complainant that it would
release the <vampirehuntress.com>
domain name registration once Complainant paid Respondent in full. Respondent also alleges that Complainant
copied Respondent’s artwork for use on Complainant’s new website at the
<vampire-huntress.com> domain name and that if Complainant had not copied
it, Respondent would have already transferred the disputed domain name
registration to Complainant. Respondent
also asserts that Complainant filed a Complaint against Respondent with the
As this appears to be a business or civil dispute with possible causes of action for breach of contract or fiduciary duty, I find that this proceeding is outside the scope of the UDRP and dismiss the Complaint. See Fuze Beverage, LLC v. CGEYE, Inc., FA 844252 (Nat. Arb. Forum Jan. 8, 2007) (concluding that when the respondent registers a domain name on behalf of the complainant and then refuses to relinquish control over the domain name registration, the cause of action is for breach of contract or fiduciary duty and is thus outside the scope of the UDRP Policy); see also Frazier Winery LLC v. Al Hernandez, FA 841081 (Nat. Arb. Forum Jan. 2, 2007) (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).
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
DECISION
I find that this matter is a civil dispute
and outside the scope of the UDRP policy.
The Complaint is therefore dismissed.
Timothy D. O’Leary, Panelist
Dated: March 6, 2007
National Arbitration Forum