Everingham Bros. Bait Co. v. Contigo
Visual
Claim
Number: FA0503000440219
Complainant is Everingham Bros. Bait Co. (“Complainant”),
represented by Uleses C. Henderson, of Foley and Lardner LLP,
2029 Century Park East, 35th Floor, Los Angeles, CA 90067. Respondent is Contigo Visual (“Respondent”), 2700 Iowa Ave., Suite 32, Riverside, CA 92507.
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain names at issue are <everinghambrosbaitco.com>, <baitbarge.com>,
and <armalis-knotcincher.com>, registered with Network
Solutions, Inc.
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.
John
J. Upchurch as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on March
14, 2005; the National Arbitration Forum received a hard copy of the Complaint
on March 14, 2005.
On
March 16, 2005, Network Solutions, Inc. confirmed by e-mail to the National
Arbitration Forum that the domain names <everinghambrosbaitco.com>,
<baitbarge.com>, and <armalis-knotcincher.com> are
registered with Network Solutions, Inc. and that Respondent is the current
registrant of the names. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
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
March 18, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
April 7, 2005 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@everinghambrosbaitco.com, postmaster@baitbarge.com,
and postmaster@armalis-knotcincher.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 National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
April 14, 2005, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration Forum appointed John J.
Upchurch as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <everinghambrosbaitco.com>,
<baitbarge.com>, and <armalis-knotcincher.com> domain
names are identical and confusingly similar to Complainant’s EVERINGHAM BROS.
BAIT CO., BAITBARGE.COM, AND ARMALIS KNOT CINCHER marks.
2. Respondent does not have any rights or
legitimate interests in the <everinghambrosbaitco.com>, <baitbarge.com>,
and <armalis-knotcincher.com> domain names.
3. Respondent registered and used the <everinghambrosbaitco.com>,
<baitbarge.com>, and <armalis-knotcincher.com> domain
names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Everingham Bros. Bait Co., has been a staple in Southern California’s
sportfishing community for over 50 years.
Established in 1951, Complainant specializes in live fishing bait. Complainant’s fishing fleet catches and
delivers live bait, such as sardines and anchovies, daily to its bait barges
located in the San Diego Bay and Mission Bay, California.
Complainant
hired Respondent, Contigo Visual, to develop and host its websites operated
at <everinghambrosbaitco.com>,
<baitbarge.com>, and <armalis-knotcincher.com>. Internet users who visit any of the three
previously named websites are redirected to the website operated at <baitbarge.com>. Respondent registered the domain names under
its own name, and has since refused to transfer the domain names to
Complainant.
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.
Complainant and
Respondent entered into a contract, which included registration of the disputed
domain names. 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 Latent
Tech. Group, Inc. v. Fritchie, FA 95285 (Nat. Arb. Forum Sept. 1, 2000)
(dispute concerning employee’s registration of domain name in his own name and
subsequent refusal to transfer it to employer raises issues of breach of
contract and breach of fiduciary duty that are more appropriately decided in
court, not before a UDRP Panel); see also Discover New England v. The
Avanti Group, Inc. FA 123886 (Nat. Arb. Forum Nov. 6, 2002) (finding the
dispute outside the scope of the UDRP because the dispute centered on the
interpretation of contractual language and whether or not a breach occurred); see
also AutoNation Holding Corp. v. Rabea Alawneh, D2002-0581 (WIPO May 2, 2002) (holding that assertions of
trademark infringement "are entirely misplaced and totally inappropriate
for resolution through an ICANN proceeding. The scope of an ICANN proceeding is
extremely narrow: it only targets abusive cybersquatting, nothing else"); see
also Thread.com, LLC v.
Poploff, D2000-1470 (WIPO Jan. 5, 2001) (refusing to transfer the domain
name and stating that the ICANN Policy does not apply because attempting “to
shoehorn what is essentially a business dispute between former partners into a
proceeding to adjudicate cybersquatting is, at its core, misguided, if not a
misuse 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.
John
J. Upchurch, Panelist
Dated: April 27, 2005
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