Miff Munitions, Inc. d/b/a 9mm.com v.
Domains for Cheap
Claim
Number: FA0408000309943
Complainant is Miff Munitions, Inc. d/b/a 9mm.com (“Complainant”), represented by Richard K. Berger of Berkent Legal Services, P.C., 11 Salvi Drive, Framingham, MA 01701. Respondent is Domains for Cheap (“Respondent”), 3655 W. Anthem Way, Anthem, AZ
85086.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <9mm.com>, registered with Go Daddy
Software, Inc.
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.
John
J. Upchurch as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on August 6, 2004; the Forum received a hard copy of the
Complaint on August 9, 2004.
On
August 9, 2004, Go Daddy Software, Inc. confirmed by e-mail to the Forum that
the domain name <9mm.com> is registered with Go Daddy Software,
Inc. and that Respondent is the current registrant of the name. Go Daddy
Software, Inc. has verified that Respondent is bound by the Go Daddy Software,
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 16, 2004, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 7, 2004 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@9mm.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
September 14, 2004, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed John J. Upchurch as
Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the Forum has discharged its responsibility under
Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy
(the "Rules") "to employ reasonably available means calculated
to achieve actual notice to Respondent."
Therefore, the Panel may issue its decision based on the documents
submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's
Supplemental Rules and any rules and principles of law that the Panel deems
applicable, without the benefit of any Response from Respondent.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <9mm.com>
domain name is identical to Complainant’s 9MM.COM mark.
2. Respondent does not have any rights or
legitimate interests in the <9mm.com> domain name.
3. Respondent registered and used the <9mm.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant, Miff Munitions, Inc. d/b/a 9mm.com, is in the
business of providing Internet services such as e-mail, web hosting and
co-location services.
Complainant registered the <9mm.com> domain name through Network Solutions on
September 20, 1997 and paid for the domain name registration until September
12, 2012. Complainant has used the
9MM.COM mark continuously in association with its Internet services since 1997
and Complainant has not registered the mark with the United States Patent and
Trademark Office or in any other country.
In an e-mail
from Network Solutions, dated November 7, 2003, sent to Complainant’s contact
e-mail address at miff@9mm.com, it was indicated that an unknown person
requested the transfer of the <9mm.com> domain name registration
to the unknown “Mark Cummings.” The
e-mail requested authorization to change the name of the registrant, but the
request failed when Complainant did not authorize the transfer. An e-mail dated November 22, 2003 from
Network Solutions notified Complainant that the attempt to transfer had
failed.
On December 3,
2003, Network Solutions sent an e-mail to miff@9mm.com confirming that the
password for the <9mm.com> domain name had been changed. The contact e-mail address was then changed
to one not controlled by Complainant, and the <9mm.com> domain
name registration was subsequently transferred to Godaddy.com and to another
registrant.
Network
Solutions determined on December 5, 2003 that there was no fraud, because its
internal policy had been satisfied.
Network Solutions stated in an e-mail that a confirmation e-mail had
been sent to the administrative contact at blah@ctf.edu listed for the <9mm.com>
domain name at the time of the request and that contact confirmed the
transfer. However, this e-mail address
was not again listed subsequent to the transfer of the disputed domain name to
Godaddy.com. The first e-mail address
listed with Godaddy.com was for Mark Louis at hamster@usa.com with the business
Nine MM Inc. located in Indianapolis, Indiana.
Complainant
conducted searches for the entity Nine MM Inc. via Google and the Illinois
Secretary of State website. According
to these searches, this company does not exist. Furthermore, in the WHOIS information dated December 15, 2003,
the only address given for Nine MM Inc. was an unnumbered P.O. Box in
Indianapolis, Indiana. Complainant
attempted to call Mark Louis, the person listed as the technical contact for
the <9mm.com> domain name,
and Complainant was connected to ecorp.com instead of to Nine MM Inc. Complainant’s calls and voicemails to
ecorp.com have gone unanswered.
Subsequent to
the WHOIS report mentioned above, the registrant information for the <9mm.com>
domain name has been changed to Domains for Cheap c/o Jason Smith. The disputed domain name has not been used
in any way.
Complainant has
had numerous discussions with Godaddy.com and its General Counsel Christine
Jones, Esq. regarding the return of the <9mm.com> domain name
registration to Complainant.
Godaddy.com has instructed Complainant that it is unable to transfer the
domain name registration without judicial instruction, but it did inform
Complainant that the disputed domain name has been placed on Registrar-Hold
status awaiting a judicial instruction.
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."
In view of
Respondent's failure to submit a Response, the Panel shall decide this
administrative proceeding on the basis of Complainant's undisputed
representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and
draw such inferences it considers appropriate pursuant to paragraph 14(b) of
the Rules.
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.
This case
involves a complainant who claims that it owned a domain name registration and
that the domain name registration was fraudulently transferred to another
registrant and a different registrar.
However, although it appears from the record that Complainant was the
victim of fraudulent activity, the purpose of the Policy is to deal with
abusive domain name registrations by deterring the abusive practice known as
“cybersquatting.” Thus, since the instant
case primarily involves a fraudulent registration transfer, not cybersquatting,
the Panel finds that this dispute is outside the scope of the Policy. See Decker v. Antwer, FA
263584 (Nat. Arb. Forum June 28, 2004) (“[S]ince the instant case does not
involve the practice of cybersquatting and is more accurately described as a
fraudulent registration transfer, the Panel finds that this dispute may be more
suitable in a court of law as it exceeds the scope of the Policy.”); see
also Digital-Logic AG v. Krechman, FA 235827 (Nat. Arb. Forum Apr. 8, 2004)
(“[T]he Panel finds that this dispute raises potential contractual issues and
suggests fraudulent activity on the part of Respondent, which failed to
complete the transfer of the domain name at issue and subsequently renewed the
name. Therefore, the Panel finds that
the dispute is beyond the scope of the Policy.”); see also Commercial Publ’g
Co. v. EarthComm., Inc., FA 95013 (Nat. Arb. Forum July 20, 2000) (stating
that the Policy’s administrative procedure is “intended only for the relatively
narrow class of cases of ‘abusive registrations.’” Cases where registered domain names are subject to legitimate
disputes are relegated to the courts.).
Having found
this dispute to be outside the scope of the ICANN Policy, the Panel concludes
that relief shall be DENIED.
Accordingly, it
is Ordered that the <9mm.com> domain name REMAIN WITH
Respondent.
John J. Upchurch, Panelist
Dated:
September 28, 2004
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