Frazier Winery LLC v. Al Hernandez
Claim Number: FA0611000841081
Complainant is Frazier Winery, LLC (“Complainant”), represented by Lawrence
G. Townsend, of Owen Wickersham & Erickson,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <frazierwinery.com>, registered with Dotster.
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.
Hon. Nelson A. Diaz as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 13, 2006; the National Arbitration Forum received a hard copy of the Complaint on November 15, 2006.
On November 14, 2006, Dotster confirmed by e-mail to the National Arbitration Forum that the <frazierwinery.com> domain name is registered with Dotster and that the Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster 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 November 17, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 7, 2006 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 by e-mail.
A timely Response was received and determined to be complete on December 7, 2006.
On December 13, 2006, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Nelson A. Diaz as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
In its Complaint, Complainant contends that it engaged Respondent to undertake services with regard to its website and domain name <frazierwinery.com>, as well as to provide additional services and materials. Complainant contends further that Respondent did not meet its obligations, and, apparently in response to Complainant’s disputing of its payment to Respondent, Complainant contends that Respondent fraudulently changed the registration for the <frazierwinery.com> domain name from Complainant to Respondent.
Respondent agrees that he was engaged by Complainant to undertake services with regard to its website and domain name <frazierwinery.com>, as well as to provide additional services and materials. However, Respondent contends that the initial $2,000 payment made by Complainant was solely for the first year of website related services, all other services to be invoiced separately. Respondent admits that he changed the registration for the <frazierwinery.com> domain name from Complainant to himself, but contends that such change was done permissively and with Complainant’s knowledge. Respondent does not claim any right to the domain name <frazierwinery.com> or the website thereon, but contends that he has always and continues to act on behalf of Complainant while this dispute is resolved.
The Panel finds that there was a contract between the parties relating to the provision of services by Respondent with regard to Complainant’s <frazierwinery.com> domain name and website. The Panel finds further that this dispute is one regarding the parties’ respective rights and obligations under that contract. Accordingly, this dispute is outside the scope of the UDRP and the Panel declines to make any further findings.
The Complaint does not raise issues of abusive registration of the <frazierwinery.com> domain name, because the disputed domain name was registered and hosted by Respondent pursuant to a business relationship with Complainant. Although the parties dispute Respondent’s right or obligation to do so under the terms of their contact, both parties acknowledge that there was a contract under which Complainant engaged Respondent to undertake services related to the <frazierwinery.com> domain name. The Complaint alleges issues regarding the rightful possession of the domain name registration for the <frazierwinery.com> domain name pursuant to the parties’ agreement. Consequently, this dispute is properly one that arises under state law or common law, but in any event is outside of the scope of the UDRP. See 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”); see also Discover New Eng. 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). Because the dispute is outside the scope of the UDRP, the Panel makes no further findings regarding the parties’ contentions.
Having found that this dispute is outside the scope of the UDRP, the Panel concludes that relief shall be DENIED.
Hon. Nelson A. Diaz, Panelist
Dated: December 27, 2006
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