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Lawrence Dick McGee v. AAdvanced Website Technologies [2000] GENDND 844 (7 August 2000)

National Arbitration Forum

Lawrence Dick McGee aka Dick Masters v. AAdvanced Website Technologies

Claim Number: FA0006000094989

PARTIES

The Complainant is Lawrence Dick McGee, West Palm Beach, FL, USA ("Complainant"). The Respondent is AAdvanced Website Technologies, Los Angeles, CA, USA ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME(s)

The domain name at issue is "DICKMASTERS.NET," registered with Network Solutions Inc. ("NSI").

PANELIST(s)

Judge Irving H. Perluss (Retired) is the Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 06/07/2000; The Forum received a hard copy of the Complaint on 06/16/2000.

On 06/08/2000, NSI confirmed by e-mail to The Forum that the domain name "DICKMASTERS.NET" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís Uniform Domain Dispute Resolution Policy ("Policy").

On 06/27/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 07/17/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondentís registration as technical, administrative and billing contacts by email.

On July 19, 2000, pursuant to Complainantís request to have the dispute decided by a Single Member panel, The Forum appointed Judge Irving H. Perluss (Retired) as Panelist.

RELIEF SOUGHT

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

PARTIESí CONTENTIONS

1. Complainant

1. The domain name "DICKMASTERS.NET" is identical to the name that Complainant has used for many years for entertainment and service.

2. Respondent has no rights or legitimate interest in the domain name at issue. Respondent was to create the website for Complainant, but after doing so registered the domain name as its own.

3. Respondent has registered and is using the domain name in bad faith, for the name belongs to the Complainant.

2. Respondent

1. Respondent does not contend that the domain name "DICKMASTERS.NET" is not identical to the domain name used by Complainant. Nevertheless, there has been another well-known individual who uses "DICKMASTERS" as his entertainment name.

2. Respondent owns and has a legitimate interest in the domain name at issue. It does not create or design websites it does not own. Complainant simply was to supply content for one year for which he was paid, and his contract not renewed.

3. The domain name was not registered and/or being used in bad faith.

FINDINGS

1. Complainant has used the name and pseudonym "DICKMASTER" for ten years or more in the entertainment business.
2. Complainant is an Afro-American, and there is a Caucasian who, in years past, used the name and pseudonym "DICKMASTER" in the entertainment business.
3. Nevertheless, absent evidence to the contrary, it is found that Complainant has a common law right to the mark "DICKMASTER."
4. There was an oral contract between Complainant and Respondent for Respondent to create a website on behalf of Complainant.
5. It is not true that Respondent does not create websites it does not own, as evidenced by Respondentís letter of June 1, 1998, on its letterhead to Complainant referring to a "standard contract to do dickmasters.com," and the reservation of the name on "Internic," and that Respondent is "about ready to start working on the website."
6. It is not true that Complainant was simply to supply content for one year for which he was paid and that his contract was not renewed, as evidenced by a congratulatory letter dated July 17, 1998, from an apparent employee of Respondent, on Respondentís letterhead, asking for the remaining payment from Complainant which will total "$2,250 + $100 startup fee," and stating "You are now part of the online world."
7. Complainant has made many threats to Respondentís officers and employees, and has made complaints to various state and federal agencies, but the Arbitrator does not believe that the emotional distress so displayed and so unrestrained is sufficient to label him "psychotic" and/or untruthful.
8. Respondent has promised to transfer the domain name at issue to Complainant as evidenced by an e-mail message from Respondent to Complainant, dated October 27, 1998.

DISCUSSION

Paragraph 4(a) of the ICANN Policy directs that the complainant must prove each of the following three elements to support a claim 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 is established that in determining credibility, a witness false in one part of his testimony is to be distrusted in others, and the entire testimony of a witness who willfully has testified falsely on a material point may be rejected.

It has been found that the evidence provided to the Arbitrator has established that Respondent was not forthright in at least two instances. Accordingly, Respondentís defenses herein made must be considered in the light of Respondentís shaken credibility.

The domain name at issue and Complainantís mark are identical.

Respondent has no rights or legitimate interest in the domain name at issue. The website was created by Respondent for Complainant, and was usurped by Respondent.

Respondent registered and is using the domain name at issue in bad faith, for the name belongs to Complainant. This is substantiated by the promise Respondent made to Complainant to transfer the domain name at issue to him.

DECISION

Based on the above findings, conclusions and pursuant to Rule 4(i), it is decided that the domain name "DICKMASTERS.NET" registered by AAdvanced Website Technologies, be transferred to Complainant Lawrence McGee.

Judge Irving H. Perluss (Retired), Panelist
Dated: August 7, 2000