Manny Pasha v. John Koveos
c/o bostonlimos
Claim Number: FA0708001065837
PARTIES
Complainant is Manny Pasha (“Complainant”), represented by Scott
T. Buckley, of Lawson & Weitzen, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bostonlimos.com>, registered with Godaddy.com,
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.
David P. Miranda and Bruce E.
O'Connor as Panelists and David S.
Safran, Chair.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on August 20, 2007; the
National Arbitration Forum received a hard copy of the Complaint on August 20, 2007.
On August 20, 2007, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <bostonlimos.com> domain name is
registered with Godaddy.com, Inc. and
that the Respondent is the current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.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 August 29, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of September 18, 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@bostonlimos.com by e-mail.
A timely Response was received and determined to be complete on September 18, 2007.
On September 24, 2007, a Reply to Respondents’ Response was received
from Complainant and determined to be complete.
On September 26, 2007, pursuant to Complainant’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed David P. Miranda and Bruce E.
O'Connor as Panelists and David S.
Safran as Chair.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant asserted that Respondent fraudulently converted the domain <bostonlimos.com> from its
ownership, that Respondent cannot show that it used a website at the domain <bostonlimos.com> for a bona fide
offering of goods or services due to the conversion, and that the registration
and use by Respondent is in bad faith since the conversion of ownership was for
the purpose of ransoming it back to Complainant and to harm Complainant, it
being known to Respondent to be a major source of Complainant’s business.
B. Respondent
Respondent contends that this body lacks jurisdiction over the dispute
between the parties which is one relating to whether or not a partnership
existed between Complainant and Respondent which gave Respondent an ownership
interest in the domain at issue and whether the transference of the domain <bostonlimos.com> from
Complainant to Respondent was done with the willing consent of Complainant or
within the legitimate rights of Respondent as a co-owning partner. Additionally, no domain name that is
confusingly to a trademark in which Complainant holds rights exists since the
domain name is not the name of Claimant’s company but rather is the same domain
name which booked the limousines of both parties, which use was a bona fide
offering of services via the domain <bostonlimos.com>.
C. Additional Submissions
In replying to Respondent’s Response, Complainant asserted that this
body has jurisdiction over this dispute because it involves the abusive
registration and use of a domain name. In support of this position, Complainant
again asserts the issue of conversion and a lack of any ownership interest in
the domain by Respondent as well as abuse of authority as an agent by
Respondent since no partnership existed.
FINDINGS
Complainant has raised issues of agency and
conversion at the heart of the basis for transference. Respondent has raised
issues of ownership and partnership at the heart of its claim to retain the
domain name. No matter which party is correct, the Panel finds that factual
inquires are involved that are outside of the scope of these proceedings.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(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 objective of the ICANN Uniform Policy “is very narrow. It is concerned . . . with cybersquatting and not commonplace trade mark infringement issues and/or unfair competition issues, however flagrant.” Palm v. South China House of Technology Consultants, D2000-1492 (WIPO Dec. 18, 2000); see, e.g., Bloomberg v. Secaucus Group, FA 97077 (Nat. Arb. Forum June 7, 2001); see generally, R. Badgley, Domain Name Disputes § 5.02 (2002).
Moreover, because the issues of ownership of a domain, conversion, existence of partnership or agency relationships, and determination if acts of a party were within its authority involved in this case are highly fact dependent, “those inquiries are simply inappropriate for this Panel to address owing to the rather summary nature of an ICANN proceeding which precludes a complete factual record from being established and duly considered. The Estate of Marlon Brando v. WhoisGuard c/o WhoisGuard Protected, FA 503817 (Nat. Arb. Forum Aug. 29, 2005) (Issues centered on whether ownership of a domain had been transferred to Respondent).
Therefore, this Panel believes that this matter is outside of the scope of an ICANN proceeding, and must be left to adjudication before an appropriate court and not to an ICANN administrative panel.[1]
Consequently, this Panel rules that it is without jurisdiction to decide this matter.
Thus, all consideration of any of the factors under the Policy is now moot.
DECISION
The Complaint is hereby DISMISSED for lack of jurisdiction.
David S. Safran, Panel Chair
Bruce E. O’Connor, Panelist
David P. Miranda, Panelist
Dated: October 9, 2007
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[1] Even if this Panel were to find that it had jurisdiction in the matter, the contrary proofs of the parties as to ownership illustrate that Complainant cannot show that it has rights in the alleged trademark as required by ¶4(a)(1) of the Policy.