DECISION

Tom Patton c/o IDC AMERICAS, LLC v. Darin Stemwedel d/b/a Cafifornia Organic Fertilizers, Inc.

Claim Number: FA0211000135010

PARTIES

Complainant is Tom Patton c/o IDC AMERICAS, LLC, Fresno, CA (“Complainant”) represented by Mark E. Crone. Respondent is Daren Stemwedel d/b/a California Organic Fertilizers, Inc., Fresno, CA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <idcamericas.com> and <idcamericas.net>, registered with Go Daddy Software, Inc.

PANEL

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.

Louis E. Condon as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 25, 2002; the Forum received a hard copy of the Complaint on December 6, 2002.

On November 26, 2002, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain names <idcamericas.com> and <idcamericas.net> are registered with Go Daddy Software, Inc. and that the Respondent is the current registrant of the names.  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 December 16, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 6, 2003 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@idcamericas.com and postmaster@idcamericas.net by e-mail.

A timely Response was received and determined to be complete on January 6, 2003.

An additional submission was received from the Complainant on January 10, 2003. This filing was timely according to The Forum’s Supplemental Rule #7. Likewise, a timely response to the additional submission was received from the Respondent. Both documents were considered by the panel.

On January 15, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Louis E. Condon as Panelist.

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Thomas R. Patton, the Complainant, was President, CEO and a 50% owner of Infinet Broadband, Inc.(“Infinet”) from December 2001 to approximately September 2002. The other 50% of Infinet was owned by Timothy and Deborah Stemwedel, parents of Daren Stemwedel, the Respondent herein, who was an employee of Infinet. According to the Complainant, Daren Stemwedel was a subordinate of Patton in Infinet.

In February, 2002, Complainant instructed Daren to register the <idcamericas.com> and <idcamericas.net> names for a data center business venture being organized by Complainant to be known as IDC Americas. IDC Americas was intended to be unrelated to the business of Infinet. Daren Stemwedel was aware that the domain names were intended for a separate business. Unbeknownst to Complaiant, and presumably due to the disharmony between Mr. Patton and the Stemwedels, Daren registered the domain names in the name of his parents’ company, the co-respondent California Organic Fertilizers, Inc. Complainant formed the legal entity IDC Americas, LLC on February 20, 2002. The request for the domain names was granted on February 23, 2002. At the time, Complainant did not disclose the formation of IDC Americas to his partners, the Stemwedels. Complainant has a United States trademark application pending for the name IDC Americas, the name of his limited liability company.

Subsequent to the registration of the domain names, Infinet Broadband, Inc. was dissolved by the Stemwedels, against Complainant’s wishes. The assets of Infinet were sold at public auction and repurchased by the Stemwedels, who now operate a wireless ISP named Maverick Broadband which delivers internet connectivity. When Complainant contacted Daren Stemwedel to initiate the transfer of the disputed names to his new company he was informed that the Stemwedels own the names. According to the Complainant, since Maverick Broadband does not offer DAT Center products or services, it is reasonable to assume that the Stemwedels’ unwillingness to release the domain names to Complainant and his business is intended solely to prevent Complainant from using the names for the benefit of his new company.

      

B. Respondent

Tom Patton was President, CEO and 50% owner of Infinet Broadband, Inc. from December 2001 to approximately September 2002. The other 50% of Infinet was owned by Timothy and Deborah Stemwedel. Infinet was financed entirely by California Organic Fertilizers, Inc.(“COFI”), which held a secured note on all assets of Infinet. COFI is fully owned by Mr. and Mrs. Stemwedel.

During the stated time, Daren Stemwedel was an employee of Infinet; however, at no time was he subordinate to Complainant. According to the Stemwedels, Daren served as Operations Manager to the organization, reporting directly to them as to the daily progress of the business and the activities of the Complainant. In this role he served to protect the considerable investment being made by COFI.

Complainant requested that Daren register the domain names for a data center product being organized by Infinet, to be known as Infinet Data Centers (IDC). IDC was to be a product line offered by Infinet encompassing Infinet’s data hosting and data-center services. All domain names associated with Infinet were registered to COFI. This was an executive decision made by Timothy and Deborah Stemwedel with the intent of further protecting COFI’s investment. This was done in good faith and with the knowledge of the Complainant. At this early stage of Infinet’s existence there was no disharmony between Complainant and the Stemwedels.

Subsequent to the registration of the domain names, Infinet Broadband, Inc. was dissolved by the Stemwedels. Per a secured note, all assets held by Infinet were foreclosed on by COFI. A Public Sale of Assets was held by COFI in which bids were accepted from a number of other entities. The amount of the secured note superceded all bids. COFI elected to retain all assets by way of a non-cash purchase. A new corporation, Maverick Broadband, Inc. (“Maverick”) was then formed by the Stemwedel family to take over all material, intangible, and contractual assets purchased from Infinet.

The Stemwedels are rightfully retaining ownership of the domains in question for the use with potential future business projects. Along with COFI and Maverick, the Stemwedels operate companies in a diverse array of industries including agriculture, software development, web design, data hosting services, and Internet access. The names <idcamericas.com> and <idcamericas.net> are not specific to the Data Center industry. They may be used for any service or products involving the initials IDC. Considering the increasing rarity of choice “.com” and “.net” TLD names, the loss of <idcamericas.com> and <idcamericas.net> would be a costly loss of a valuable intangible asset. These names are not being retained by the Stemwedels for the purpose of tarnishing the reputation of the Complainant or IDC Americas, or to negatively affect their business in any way.

   

 

C. Additional Submissions

            

On January 10, 2003, Complainant became aware that Respondent has a website at <idcamericas.net> advertising the demise of their (and Complainant’s) former business, Infinet Broadband, and forwarding individuals to the website for Respondent’s current business, Maverick Broadband. Complainant further notes that while Maverick Broadband does not offer data center services, it does offer internet connectivity services in competition with Complainant’s business.   

           

Respondents note that, although he was CEO of Infinet Broadband, Inc. at the time he organized IDC Americas, LLC, Complainant did not disclose the information to his partners, the Stemwedels. Presumably, according to them, this information was not disclosed because he knew that the Stemwedels would be adamantly opposed to the formation of the new organization, and he did not want to risk his position as CEO. The Stemwedels became aware of the IDC Americas, LLC organization in September 2002. At this time the Stemwedels also became aware of another organization, Infinet, Inc. of Nevada. Allegedly, there was evidence of Complainant redirecting funds intended for Infinet of California to this  Nevada  corporation. Respondents say that these acts along with many other unnamed incidences of Complainant’s being dishonest with the Stemwedels were the key factors leading to the decision to dissolve Infinet Broadband, Inc. Further, ownership of the domain names is rightfully being retained in order to protect the reputation of the Stemwedels, COFI, and Maverick Broadband, as well as the inherent value of a well-positioned .com TLD.

           

FINDINGS

The crucial issue between the two parties is who should be considered the rightful owner of the <idcamericas.com> and <idcamericas.net> domain names. The parties were joint owners of Infinet Broadband, Inc., which was dissolved some time after the disputed domain names were registered. Infinet’s assets were sold via public auction and repurchased by Respondent. Although not addressed by either party, the Panel must decide whether this dispute falls within the scope of the UDRP Policy. In the Panel’s opinion, it does not.

DISCUSSION

The scope of a proceeding under the ICANN Policy is quite narrow; it is not an appropriate forum for the adjudication of business disputes. As set forth so cogently by Judge David H. Bernstein “the above factual recitation should make clear, this is not a garden-variety cybersquatting case. In fact, it is not a cybersquatting case at all. Rather, this appears to be a breach of contract and breach of fiduciary duty dispute between former partners. The only arguable reason that Complainant is seeking relief in this forum is that the property at issue is a domain name.” See The Thread.com,LLC v. Poploff, No.D2000-1470 (WIPO Jan. 5, 2001). See also Commercial Publishing Co. v. EarthComm., Inc. FA 95013 (National Arbitration Forum July 20, 2000) (stating that the Policy is intended to resolve only a narrow class of cases of “abusive registrations” and does not extend to cases where a registered domain name is subject to legitimate disputes, which are relegated to the courts.)  See also Pacific Aircraft Incorporated v. Pacific Aircraft Corporation FA97645 (National Arbitration Forum August 14, 2001) (stating that a domain name dispute is not a proper jurisdiction to determine one’s contractual or quantum merit rights to recover for such services.)

DECISION

For the reasons set forth above, i.e. the dispute does not fall within the parameters of the Policy.  Accordingly, the relief requested is DENIED and the Respondent may RETAIN the domain names.

Louis E. Condon, Panelist

Dated: January 22, 2003

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