James H. Fetzer v. Frederick
Burks Trustee For Nine-Eleven Scholars Membership
Claim Number: FA0701000887822
PARTIES
Complainant is James H. Fetzer (“Complainant”). Respondent is Frederick Burks Trustee For Nine-Eleven
Scholars Membership (“Respondent”),
REGISTRAR
The domain names at issue are <st911.org> and <scholarsfor911truth.org>, registered
with Schlund+Partner
AG.
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.
James A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on
On
On
A timely Response was received and determined to be complete on
On
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <st911.org> and <scholarsfor 911truth.org> domain names are confusingly similar to Complainant’s SCHOLARS FOR 9/11 TRUTH mark.
2. Respondent does not have any rights or legitimate interests in the <st911.org> or <scholarsfor 911truth.org> domain names.
3. Respondent registered and used the domain names at issue in bad faith.
B. Respondent
1. Respondent denies that Complainant has exclusive rights to the mark SCHOLARS FOR 9/11 TRUTH, whether or not the domain names at issue are confusingly similar to the mark.
2. Respondent claims that he has rights and legitimate interests in the domain names at issue.
3.
Respondent asserts that the domain names at
issue were not registered and are not being used in bad faith.
FINDINGS
This is a dispute between members of an
organization as to control of two domain names associated with the investigation
of the cause or causes of the horrific events involving the
Respondent
has taken control of the domain names on behalf of a group that has splintered
off from Scholars for 9/11 Truth and has now founded its own society, Scholars
for 9/11 Truth and Justice, which has occurred during the past month. In spite of having its own web site at <stj911.org>, Respondent refused to
return the control of <st911.org>
and <scolarsfor911truth.org>
to Complainant, who is founder, chair, and sole remaining officer of Scholars for
9/11 Truth…. This creates confusion over
what organization has claim to these domain names. They are two separate organizations and the
use of the domain names that have been the access route to Scholars for 9/11
Truth for nearly a year by a new society that has only existed for a month is
an infringement of the rights of Scholars for 9/11 Truth to its own identity,
trademark, and copyright. ICANN Rule
3(b)(ix)(1); ICANN Policy ¶ 4(a)(i). Respondent
is not even a member of Scholars for 9/11 Truth but received the domain names
from a former member in a dispute over the control of the web site. Respondent has participated in commandeering
the society’s email list and in using it to conduct unauthorized “votes” of the
members to provide a cover for the improper attempt at a hostile takeover of
the web site of Scholars for 9/11 Truth. Complainant has managed the web site
since its inception in January 2005 and up until now has been responsible for
selecting every item that appeared on that site on behalf of Scholars for 9/11
Truth. Respondent is taking advantage of
the good name of Scholars for 9/11 Truth to turn it into a conduit to
manipulate hits and traffic to its own site or otherwise deny Scholars for 9/11
Truth use of its own site.
Respondent, on the other hand, asserts
as follows:
This arbitration represents a political dispute within a political group. Rather than registering the two domain names in question for any profit or improper motive, the Respondent has paid registration and hosting costs out of his own pocket and volunteered countless hours of his own time trying to save the political group from an internal schism caused, at least in part, by the Complainant. The Respondent has also repeatedly attempted to ascertain the will of the leaders and members of this group in regard to the domain, and then to follow their wishes. Thus, the Respondent has exercised good faith in registering and using the domain names. Moreover, any trademark rights are owned by the society as a whole, and not the Complainant individually.
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.
It clearly appears, in the words of
Respondent, that this proceeding is the result of a “political dispute within a political group.” This controversy between the parties goes far
outside the scope of the UDRP and
includes possible causes of action for breach of contract or fiduciary duty. See
Fuze Beverage, LLC v. CGEYE, Inc., FA 844252 (Nat. Arb. Forum
Accordingly, the Panel finds that this dispute is not within the jurisdiction of this proceeding and that it is not necessary to make findings with respect to each of the three basic elements of the Policy.
DECISION
Having determined that this Panel lacks jurisdiction over the instant
controversy, all relief is DENIED.
Accordingly, it is Ordered that the <st911.org> and <scholarsfor911truth.org> domain names not be
transferred from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 16, 2007
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