Automobile Atlanta, Inc. v.
Treadway Solutions
Claim Number: FA0905001264729
PARTIES
Complainant is Automobile Atlanta, Inc. (“Complainant”), represented by David N. Baker, of Sapronov & Associates, P.C., Georgia, USA. Respondent is Treadway Solutions (“Respondent”), represented by David W. Nance, Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <autoatlanta.com>, <autoatlanta.net>,
<automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.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.
Sandra J. Franklin as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on May 26, 2009; the
National Arbitration Forum received a hard copy of the Complaint on May 26, 2009.
On May 26, 2009, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <autoatlanta.com>, <autoatlanta.net>,
<automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com>
domain names are 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 June 8, 2009, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of June 29, 2009 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@autoatlanta.com, postmaster@autoatlanta.net, postmaster@automobileatlanta.com, postmaster@automobileatlanta.net, postmaster@dr914.com, and postmaster@lifeinhighgear.com by e-mail.
Respondent's Response was received in hard copy on June 30, 2009. However, in that the hard copy was
received subsequent to the Response deadline, the Response is considered
deficient under ICANN Rule 5.
Complainant submitted a timely Additional Submission on July 6,
2009. Respondent filed a timely
Additional Submission on July 14, 2009.
On July 6, 2009, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Sandra J. Franklin as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <autoatlanta.com>, <autoatlanta.net>, <automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com> domain names are confusingly similar to Complainant’s AUTO ATLANTA, DR914, and LIFE IN HIGH GEAR trade names.
2. Respondent does not have any rights or legitimate interests in the <autoatlanta.com>, <autoatlanta.net>, <automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com> domain names.
3. Respondent registered and used the <autoatlanta.com>, <autoatlanta.net>, <automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com> domain names in bad faith.
B. Respondent makes the
following assertions:
1. Complainant does not have trademark rights in
the <autoatlanta.com>, <autoatlanta.net>, <automobileatlanta.com>, <automobileatlanta.net>, and <lifeinhighgear.com> domain
names. Respondent did not address
Complainant’s contentions regarding the <dr914.com>
domain name.
2. Respondent has legitimate rights and interests
in the <autoatlanta.com>, <autoatlanta.net>, <automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com> domain names
as part of an employment and/or ownership agreement with Complainant.
3. Respondent registered and
used the <autoatlanta.com>, <autoatlanta.net>, <automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com> domain names
as part of a business agreement, now the subject of civil litigation.
C. In
its Additional Submission, Complainant confirms that there is pending civil
litigation between the parties and states:
1. Complainant has common law rights in the <autoatlanta.com>, <autoatlanta.net>,
<automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com> domain
names.
2. Respondent has no legitimate rights or
interests in the <autoatlanta.com>, <autoatlanta.net>, <automobileatlanta.com>, <automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com> domain names
because it cannot prove a written agreement between the two parties.
3. Respondent offered to sell
the domain names for $60,000, and also took down Complainant’s websites at the
domain name addresses, proving bad faith.
4. Respondent’s Response was
late.
D. In its Additional Submission, Respondent
makes conflicting statements about whether or not there is pending litigation
covering all of the issues between the parties.
Respondent also:
1. Reiterates its arguments
regarding Complainant’s lack of trademark rights in the disputed domain names;
and
2. Provides evidence of its good faith effort to
submit a timely and complete Response by the June 29 deadline.
PRELIMINARY ISSUES
Late Response
The Panel did consider the late Response submitted by Respondent, for the following reasons:
1. The Response was late by only one day.
2. The Complainant had the opportunity to, and did, submit a full response to Respondent’s contentions in its Additional Submission.
3. The Panel found the information contained therein to be essential to the just disposition of this case.
Business Dispute Outside
the Scope of the UDRP
Both parties acknowledge that the
dispute over the <autoatlanta.com>, <autoatlanta.net>, <automobileatlanta.com>,
<automobileatlanta.net>, <dr914.com>, and <lifeinhighgear.com> domain names
is related to a dispute over an alleged agreement between Complainant and
Respondent, an employee of Complainant, regarding Respondent’s partial
ownership of Complainant. This has set
up the need for evidentiary exploration which is beyond the scope of UDRP
proceedings. See Everingham Bros. Bait Co.
v. Contigo Visual, FA 440219
(Nat. Arb. Forum Apr. 27, 2005) (“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 also Fuze Beverage, LLC v.
CGEYE, Inc., FA 844252 (Nat. Arb. Forum Jan. 8, 2007) (“The
Complaint before us describes what appears to be a common-form claim of breach
of contract or breach of fiduciary duty. It is not the kind of
controversy, grounded exclusively in abusive cyber-squatting, that the Policy
was designed to address.”)
The Panel notes that the full dispute between the parties is already the subject of civil litigation between the parties, where all the relevant evidence will come out. The Panel defers to a tribunal that will have the benefit of all the evidence and, in any case, a UDRP decision cannot be implemented during the pendency of a related civil action. See AmeriPlan Corp. v. Gilbert FA105737 (Nat. Arb. Forum Apr. 22, 2002) (Regarding simultaneous court proceedings and UDRP disputes, Policy ¶ 4(k) requires that ICANN not implement an administrative panel’s decision regarding a UDRP dispute “until the court proceeding is resolved.” Therefore, a panel should not rule on a decision when there is a court proceeding pending because “no purpose is served by [the panel] rendering a decision on the merits to transfer the domain name, or have it remain, when as here, a decision regarding the domain name will have no practical consequence.”)
For the foregoing reasons, the
Panel declines to consider the arguments presented in this case and the Complaint
is dismissed.
DECISION
The Panel concludes that relief shall be DENIED.
Sandra J. Franklin, Panelist
Dated: July 20, 2009
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