DECISION

10,000 RV Sales, Inc. v. David Lanfor

Claim Number: FA0407000292958

PARTIES

Complainant is 10,000 RV Sales, Inc. (“Complainant”), 5925 Kearny Villa Rd., Ste. 100, San Diego, CA 92123-1000. Respondent is David Lanfor (“Respondent”), P.O. Box 87127, San Diego, CA 92138-7127.

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <10000rv.com>, registered with Register.com.

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.

Terry F. Peppard as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on July 6, 2004; the Forum received a hard copy of the Complaint on July 9, 2004.

On July 7, 2004, Register.com confirmed by e-mail to the Forum that the domain name <10000rv.com> is registered with Register.com and that the Respondent is the current registrant of the name.  Register.com has verified that Respondent is bound by the Register.com 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 July 21, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 10, 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@10000rv.com by e-mail.

A timely Response was received and determined to be complete on August 3, 2004.

Complainant filed with the Forum an Additional Submission on August 9, 2004, within the time allowed by Supplemental Rule 7.  Respondent likewise filed with the Forum an Additional Submission, under date of August 10, 2004, also within the time permitted by Supplemental Rule 7.

On August 11, 2004, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as Panelist.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

Complainant contends that it has done business under the name “10,000 RV,” buying and selling recreational vehicles from offices in San Diego, California, since 1982. 

Complainant further contends that it created and registered the disputed domain name in 1997, and thereafter used it for several years to display the company’s business web site.

In addition, Complainant alleges that it has filed for, but not yet received, trademark and service mark registration for the name “10,000 RV” under the law of California.

Complainant goes on to allege that, in 2001, Respondent, a former employee of Complainant who once had responsibility for maintaining its website, acted without its knowledge or consent to appropriate its domain name registration by renewing that registration in his own name, which fact was not discovered until the summer of 2003, when Respondent took control of the subject domain name and removed Complainant’s website from that address. 

It is Complainant’s contention that Respondent is neither commonly known by the disputed domain name, nor does Respondent have trademark or service mark rights in that name.

It is also Complainant’s contention that Respondent has, on several occasions, offered to lease the subject domain name to Complainant for the sum of $1,000.00 per month.

Complainant next contends that Respondent has refused to correct search engine listings which identify the subject domain name as Complainant’s official web site.

Finally, Complainant asserts that Respondent has, since 2003, posted pages to the web site now associated with the disputed domain name, and controlled by him, displaying:

1.  Photographs of wrecked recreational vehicles;

2.  Contact information for Complainant’s competitors in the area surrounding San Diego, California; 

3.  An offer to sell the disputed domain name to any interested buyer; and

4.  Information relating to a legal proceeding in which Complainant suffered a   

     civil judgment. 

B. Respondent

Respondent contends that, although Complainant has paid fees for the registration of the disputed domain name, that fact does not entitle Complainant to ownership of the name.

Respondent further contends that he has, over time, paid the majority of the fees required for acquisition and maintenance of the disputed domain name registration.

It is, moreover, Respondent’s contention that the subject domain name was at all times under his control, and that his arrangement with Complainant, which was never reduced to writing, was that Complainant could use the subject domain name if Complainant paid the associated registration fees.

Respondent goes on to assert that he was never an employee of Complainant, but was rather the domestic partner and business associate of Complainant’s owner. 

Respondent further asserts that it was only after their personal and business relationship ended that Complainant and Respondent negotiated unsuccessfully for Complainant to lease the disputed domain name, after which Respondent determined to change the content of the associated web site about which Complainant now complains. 

Finally, Respondent alleges that the current content of that web site is within his constitutional right of free speech and is published as a public service.  

C. Additional Submissions

In its Additional Submission, Complainant indicates that it does not dispute that Respondent created the web site originally placed on the disputed domain name, but asserts that this was done in his capacity as an employee of Complainant.  Complainant further asserts that it never intended that the subject domain name would be owned by anyone other than Complainant.  Moreover, Complainant alleges that Respondent only began to display the web pages described in its initial submission after Complainant had refused to agree to an arrangement for the lease of the subject domain name from Respondent on terms proposed by Respondent.

In his Additional Submission, Respondent notes that Complainant’s trademark and service mark registration applications were filed with California authorities eight days after the commencement of this proceeding.  Respondent further denies both that he is a business competitor of Complainant and that his use of the disputed domain name has any commercial purpose. 

FINDINGS

The Panel finds that the dispute presented here is not of the kind intended to fall within the jurisdiction of the Policy.  Rather it is a contest between two former business associates over ownership of a domain name in which each of them claims a legitimate interest. Complainant has, however, failed to prove the elements of Policy paragraphs 4(a)(i) and (ii), as required. Accordingly, the Complaint must be dismissed, with the parties left to their remedies in a court of competent jurisdiction.

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; and

(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.

Resolution of this dispute does not merit extensive discussion.  Suffice to say that, for reasons best known to them, the parties to this proceeding entered years ago into a personal and business relationship, the critical terms of which, including their intentions with regard to ownership of the subject domain name, were never reduced to writing.  Moreover, Complainant never, before this proceeding was filed, took the precaution of registering a trademark or service mark in association with the disputed domain name. As a result, Complainant has failed to prove to the satisfaction of this Panel either that it “has rights” to the disputed domain name within the meaning of Policy paragraph 4(a)(i) or that Respondent “has no rights or legitimate interests in respect of the domain name” within the meaning of Policy paragraph 4(a)(ii). 

A situation closely parallel to this one was presented in The Thread.com, LLC v. Jeffrey S. Poploff, D2000-1470 (WIPO Jan. 5, 2001).  This panel adopts the reasoning of that decision, and, in particular, those portions that recite:

This panel is not a general domain name court, and the Policy is not designed to adjudicate all disputes of any kind that relate in any way to domain names.  Rather the Policy is narrowly crafted to apply to a particular type of abusive cybersquatting.

   *  *  *

To attempt to shoehorn what is essentially a business dispute between former partners into a proceeding to adjudicate cybersquatting is, at core, misguided, if not a misuse of the Policy.

                                                          *  *  *

 

This decision should not be read as a vindication of Respondent’s [alleged] conduct.

            See also:  Latent Tech. Group, Inc. v. Fritchie, FA95285 (Nat. Arb. Forum  

            Sept. 1, 2000), cited with approval in The Thread.com, and panel decisions cited therein.

                 

In sum, inasmuch as this dispute is outside the purview of the Policy, and inasmuch as Complainant is obliged under the Policy to establish by proof all three elements of Policy paragraph 4(a) but has failed to satisfy the proof requirements of subparagraphs 4(a)(i) and (ii) thereof, the Complaint must be dismissed.

 

DECISION

Accordingly, it is Ordered that the relief requested herein shall be, and it is hereby, DENIED, and the Complaint herein shall be, and it is hereby, DISMISSED.

Terry F. Peppard, Panelist
Dated: August 23, 2004

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