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Albuquerque Press Club v. Rip T. Williams
Claim Number: FA1101001366399
Complainant is Albuquerque Press Club (“Complainant”), represented by Thom Wright, New Mexico, USA. Respondent is Rip T. Williams (“Respondent”), New Mexico, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <albuquerquepressclub.com>, <albuquerquepressclub.org>, <abqpressclub.com>, and <abqpressclub.org>, registered with NAMESECURE.COM, NameSecure, L.L.C. (R58-LROR).
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.
Bruce E. O'Connor as Panelist.
This decision is being rendered in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the National Arbitration Forum’s UDRP Supplemental Rules (the “Supplemental Rules”).
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 6, 2011; the National Arbitration Forum received payment on January 13, 2011.
On January 7, 2011, NAMESECURE.COM, NameSecure, L.L.C. (R58-LROR) confirmed by e-mail to the National Arbitration Forum that the <albuquerquepressclub.com>, <albuquerquepressclub.org>, <abqpressclub.com>, <abqpressclub.org> domain names are registered with NAMESECURE.COM, NameSecure, L.L.C. (R58-LROR) and that Respondent is the current registrant of the names. NAMESECURE.COM, NameSecure, L.L.C. (R58-LROR) has verified that Respondent is bound by the NAMESECURE.COM, NameSecure, L.L.C. (R58-LROR) registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the Policy.
On January 26, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 15, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@albuquerquepressclub.com, postmaster@albuquerquepressclub.org, postmaster@abqpressclub.com, and postmaster@abqpressclub.org. Also on January 26, 2011, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A Response was received on February 18, 2011. However, the Response is deficient as it was received after the deadline to file a response.
On February 23, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. O'Connor as Panelist.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a New Mexico corporation that, since its establishment in 1965, has used the name and mark ALBUQUERQUE PRESS CLUB. The stated purpose of the corporation is to "provide a place of fellowship for journalists."
The domain names <albuquerquepressclub.com> and <albuquerquepressclub.org> are identical to Complainant's name and mark. The domain names <abqpressclub.com> and <abqpressclub.org> use the standard "abq" abbreviation for "Albuquerque" and are identical or confusingly similar to Complainant's name and mark.
Respondent has no rights or legitimate interests in the domain names at issue. At the time that Respondent established personal ownership of the domain names, he was an employee of Complainant. As part of and connected with his employment, Respondent purchased the domain names and constructed and maintained a web site for Complainant using the domain names.
Respondent registered the domain names in bad faith in his own name rather than in Complainant for whom they were purchased. Respondent's employment was terminated after he constructed and maintained a web site using those domain names specifically for the use and benefit of Complainant. Since his termination, Respondent has refused to transfer the domain names to Complainant and holds them hostage, demanding a significant amount of money for them. Respondent's post-termination activities are in bad faith, in that he refuses to transfer the domain names unless he receives valuable consideration in excess of his documented out-of-pocket costs relating to the domain names, and in that he is preventing Complainant from reflecting Complainant's name and mark in a corresponding domain name.
B. Respondent
The domain names in issue are not identical to Complainant's name and mark and "abq" is a non-standard abbreviation of and one of the rarer official nicknames of the city of Albuquerque.
Respondent has legitimate interests in the domain names. Respondent has continuously owned, maintained, and developed the domain names beginning in 2004. Those activities were knowingly allowed by Complainant, its board, employees, and other agents, who occasionally contributed to content (on Respondent's web site). Respondent's part-time employment as a bartender did not create an agency relationship with Complainant. At no time was Respondent empowered, instructed, or directed in any way to purchase the domain names for Complainant. At no time did Respondent's employee duties include the maintenance of a web site for Complainant.
The domain names at issue and the web site to which they resolve are the result of Respondent's personal work. The specific information on the web site that is related to Complainant is either in the public domain or shared voluntarily (with Respondent) by agents of Complainant. All costs associated with the domain names and the web site have been paid by Respondent personally. Complainant has, at no time, contributed to those costs.
Since Respondent's termination, several duly appointed representatives of Complainant have been given full administrative privileges on the web site as well as top-level ePanel access to the web site's server.
Respondent's use of the domain names in issue, prior to this dispute, was as a location for a web site for "fans of the Albuquerque Press Club." No commercial use of the domain names has been made, and all contact links on the web site resolve to Complainant's official web site using the domain name <qpressclub.com>. Recently, Respondent has placed a large notice on the web site directing the user to Complainant's official web site.
Respondent's registration and use of the domain names in issue has not been in bad faith. There is no evidence supporting Complainant's contention that Respondent was directed or instructed "to establish a domain and construct/maintain a web site on behalf of the Albuquerque Press Club."
Respondent also has not sought to sell the domain names to Complainant. Rather, Complainant has offered (on numerous occasions) to purchase the domain names for amounts well in excess of Respondent's costs, and has demanded that Respondent sell the domain names, threatening Respondent and attacking his character publicly. Respondent prefers to continue to shoulder the associated costs as a "labor of love" for his favorite non-profit.
The Panel concludes that it has no jurisdiction in this case, and makes no factual findings.
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."
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.
Foremost in this case are the following issues:
Were the registration and use of the domain names at issue within the scope of Respondent's employment relationship with Complainant?
Was Respondent authorized by Complainant to register and use the domain names?
Did Complainant acquiesce in or consent to Respondent's registration and use of the domain names?
Did Respondent register and use the domain names for his own benefit or for the benefit of Complainant?
Resolution of these issues requires an evaluation of the pertinent facts and application of the pertinent law.
From the evidence submitted, the Panel does not have enough information to make the factual evaluation. For example, what was the nature of Respondent's employment?[1] Why did Complainant permit Respondent to register and develop the domain names?[2] Did Complainant accept Respondent's ownership of the domain names after Respondent's termination?[3]
The parties have submitted no authorities. Which jurisdiction's laws are applicable to the Respondent's employment relationship, any fiduciary relationship between Respondent and Complainant, and any agency relationship between those parties? What are those laws?
Such an evaluation is beyond the scope of this proceeding. As aptly and ably stated in Manny Pasha v. John Koveos c/o bostonlimos, FA 1065837 (Nat. Arb. Forum Oct. 9, 2007):
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.
Although Complainant and Respondent have voiced their dispute in the terms of the Policy, they must seek resolution in another forum that has appropriate subject matter and personal jurisdiction over the controversy.
The Complainant is hereby dismissed for want of jurisdiction.
Bruce E. O'Connor, Panelist
Dated: March 8, 2011
[1] Respondent describes himself as a "part-time bartender." Minutes of board meetings and an affidavit submitted by Complainant identify Respondent as "manager."
[2] Complainant's board meeting minutes mention that Respondent is a member of a "Web and Web Site Development Committee" and reference reports from Respondent to the board on the progress of the Committee.
[3] The meeting minutes state, "Dave moved to continue to work with Mr. Rip Williams in production and maintenance of the website, which he [Rip] will continue to donate administration and maintenance toward of his own free will and without expectation of payment. A motion was made to amend Dave’s motion to include: The Press Club retains ownership of all content of the website created and donated by Rip. The motion was passed."
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