El Monte Ford, Inc. v. Shamin Tahzib
Claim Number: FA0509000569039
Complainant is El Monte Ford, Inc. (“Complainant”), represented by John Pherrin, of El Monte Ford, 11401 E. Garvey Ave., El Monte, CA 91732. Respondent is Shamin Tahzib (“Respondent”), El Monte Ford, Inc., 11401 E. Garvey Ave., El Monte, CA 91732.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <fordpricing.com>, registered with Register.com, Inc.
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.
Sandra Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 28, 2005; the National Arbitration Forum received a hard copy of the Complaint on October 6, 2005.
On September 30, 2005, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <fordpricing.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 October 13, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 2, 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 postmaster@fordpricing.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 9, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra Franklin 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Complainant has exclusive rights to the <fordpricing.com> domain name.
2. Respondent does not have any rights or legitimate interests in the <fordpricing.com> domain name because it has given full ownership rights to Complainant.
3. Complainant makes no allegation that Respondent registered or used the <fordpricing.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, El Monte Ford, Inc., alleges that it contracted with Respondent, Shamin Tahzib, who was also an employee, to register the <fordpricing.com> domain name. Complainant provides a copy of the parties’ agreement, which states the following:
I, Shamim Tahzib, give El Monte Ford, Inc. all exclusive rights and uses of the domain name “Ford Pricing.com” until November 7, 2003. At that time El Monte Ford, Inc. has the option to renew at El Monte Ford’s expense, in El Monte Ford’s name.
Respondent registered the <fordpricing.com> domain name on November 8, 2002.
Respondent is no longer Complainant’s employee. Complainant argues that Respondent is contractually obliged to hand over the password information to the <fordpricing.com> domain name. Additionally, Complainant argues that Respondent is holding the domain name “hostage” because of a labor dispute between Respondent and Complainant. Complainant avers that Respondent lost a hearing with the California Labor Board regarding this labor dispute.
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical 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.”).
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.
The Panel finds that this dispute centers on an alleged
contract for services between Complainant and Respondent. Therefore, the Panel finds that this matter
is outside the scope of the Policy because it does not concern the abusive
registration of a domain name. 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); Discover
New England 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); 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”); 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”).
Having concluded that this case is outside the scope of the ICANN Policy, the Panel concludes that relief shall be DENIED.
Sandra Franklin, Panelist
Dated: November 23, 2005
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