Maverick Equipment
Manufacturing, Inc. v. John Bubernak
Claim Number: FA0912001300889
PARTIES
Complainant is Maverick Equipment Manufacturing, Inc. (“Complainant”), represented by Geoffrey
W. Millsom, of Adler Pollock & Sheehan, P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <maverickhammers.net>, registered
with Melbourne
It, Ltd. d/b/a Internet Names Worldwide.
PANEL
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.
David E. Sorkin as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on December 30, 2009; the
National Arbitration Forum received a hard copy of the Complaint on January 4, 2010.
On January 3, 2010, Melbourne It, Ltd. d/b/a Internet Names Worldwide
confirmed by e-mail to the National Arbitration Forum that the <maverickhammers.net>
domain name is registered with Melbourne It,
Ltd. d/b/a Internet Names Worldwide and that the Respondent is the
current registrant of the name. Melbourne It, Ltd. d/b/a Internet Names Worldwide
has verified that Respondent is bound by the Melbourne
It, Ltd. d/b/a Internet Names Worldwide 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 January 7, 2010, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of January 27, 2010 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@maverickhammers.net by
e-mail.
A timely Response was received and determined to be complete on January 25, 2010.
On February 4, 2010, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed David E. Sorkin as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant manufactures hydraulic hammers and related products. Complainant’s trademark, MAVERICK HAMMERS, is
registered on the Principal Register of the U.S. Patent and Trademark
Office. Complainant states that it hired
Respondent to manage, design, and maintain Complainant’s website at the domain
name <maverickhammers.com>, and that Respondent thereafter registered and
is using the disputed domain name <maverickhammers.net>. Complainant contends that the disputed domain
name is identical or confusingly similar to Complainant’s mark, that Respondent
lacks rights or legitimate interests in the domain name, and that it was
registered and is being used in bad faith.
B. Respondent
Respondent states that he was a contractor hired by Complainant. Under the contract between the parties,
Respondent was to establish an alternate website for Complainant under a
separate domain name and then promote this website to search engines. Respondent states that the domain name
selected for this alternate site was the disputed domain name <maverickhammers.net>, and that
Respondent never had anything to do with Complainant’s primary website at
<maverickhammers.com>. Respondent
states further that the alternate website contained material approved by
Complainant and was up for only a short time, and that the disputed domain name
was never used for any other purpose.
However, Respondent alleges that he was never paid for his services
under the contract, and that he has offered to cooperate in transferring the
disputed domain name to Complainant upon payment. Respondent further asserts that he has
obtained a judgment against Complainant for breach of contract but has not yet
been able to collect on the judgment.
Respondent accuses Complainant of having brought the present Complaint
in order to harass Respondent. (The
Response was accompanied by copies of the contract and the judgment.)
FINDINGS
The Panel finds that Respondent’s
registration and use of the disputed domain name do not appear to qualify as
bad faith under the Policy, and that the present dispute falls outside the
scope of the Policy.
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) the 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.
Based upon the evidence before the Panel, it appears that Respondent
registered the disputed domain name pursuant to a contract between the parties,
and that Respondent has not used the domain name other than as authorized by
that contract.
Respondent’s actions to date, at least in regard to the registration of
the disputed domain name, do not clearly constitute bad faith as contemplated
by Paragraphs 4(a)(iii) and 4(b) of the Policy. Furthermore, the present dispute is primarily
a contractual one that is beyond the scope of the Policy. See,
e.g., In Love v. Barnett, FA 944826 (Nat. Arb. Forum May
14, 2007); Fuze Beverage, LLC v. CGEYE,
Inc., FA 844252 (Nat. Arb. Forum Jan. 8, 2007). The Panel therefore declines to grant a
remedy under the Policy.
DECISION
Having considered all three elements required under the ICANN Policy,
the Panel concludes that relief shall be DENIED.
David E. Sorkin, Panelist
Dated: February 17, 2010
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