Everingham Bros. Bait Co. v. Contigo Visual
Claim Number: FA0503000440219
Complainant is Everingham Bros. Bait Co. (“Complainant”), represented by Uleses C. Henderson, of Foley and Lardner LLP, 2029 Century Park East, 35th Floor, Los Angeles, CA 90067. Respondent is Contigo Visual (“Respondent”), 2700 Iowa Ave., Suite 32, Riverside, CA 92507.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <everinghambrosbaitco.com>, <baitbarge.com>, and <armalis-knotcincher.com>, registered with Network Solutions, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 14, 2005; the National Arbitration Forum received a hard copy of the Complaint on March 14, 2005.
On March 16, 2005, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the domain names <everinghambrosbaitco.com>, <baitbarge.com>, and <armalis-knotcincher.com> are registered with Network Solutions, Inc. and that Respondent is the current registrant of the names. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 March 18, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 7, 2005 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 firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 14, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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." 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <everinghambrosbaitco.com>, <baitbarge.com>, and <armalis-knotcincher.com> domain names are identical and confusingly similar to Complainant’s EVERINGHAM BROS. BAIT CO., BAITBARGE.COM, AND ARMALIS KNOT CINCHER marks.
2. Respondent does not have any rights or legitimate interests in the <everinghambrosbaitco.com>, <baitbarge.com>, and <armalis-knotcincher.com> domain names.
3. Respondent registered and used the <everinghambrosbaitco.com>, <baitbarge.com>, and <armalis-knotcincher.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Everingham Bros. Bait Co., has been a staple in Southern California’s sportfishing community for over 50 years. Established in 1951, Complainant specializes in live fishing bait. Complainant’s fishing fleet catches and delivers live bait, such as sardines and anchovies, daily to its bait barges located in the San Diego Bay and Mission Bay, California.
Complainant hired Respondent, Contigo Visual, to develop and host its websites operated at <everinghambrosbaitco.com>, <baitbarge.com>, and <armalis-knotcincher.com>. Internet users who visit any of the three previously named websites are redirected to the website operated at <baitbarge.com>. Respondent registered the domain names under its own name, and has since refused to transfer the domain names to Complainant.
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.
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.
Complainant and Respondent entered into a contract, which included registration of the disputed domain names. 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 Latent Tech. Group, Inc. v. Fritchie, FA 95285 (Nat. Arb. Forum Sept. 1, 2000) (dispute concerning employee’s registration of domain name in his own name and subsequent refusal to transfer it to employer raises issues of breach of contract and breach of fiduciary duty that are more appropriately decided in court, not before a UDRP Panel); see also Discover New England v. The 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); see also AutoNation Holding Corp. v. Rabea Alawneh, D2002-0581 (WIPO May 2, 2002) (holding that assertions of trademark infringement "are entirely misplaced and totally inappropriate for resolution through an ICANN proceeding. The scope of an ICANN proceeding is extremely narrow: it only targets abusive cybersquatting, nothing else"); see also Thread.com, LLC v. Poploff, D2000-1470 (WIPO Jan. 5, 2001) (refusing to transfer the domain name and stating that the ICANN Policy does 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”); see also Commercial Publ’g Co. v. EarthComm., Inc. FA 95013 (Nat. Arb. Forum July 20, 2000) (stating that the Policy’s administrative procedure is “intended only for the relatively narrow class of cases of ‘abusive registrations.’” Cases where registered domain names are subject to legitimate disputes are relegated to the courts).
Having found this dispute to be outside the scope of the ICANN Policy, the Panel concludes that relief shall be DENIED.
John J. Upchurch, Panelist
Dated: April 27, 2005
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