Thumprecords.com

The timeline behind thumprecords.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Thump Records, Inc. v. WebPros Claim Number: FA0503000446911 PARTIES Complainant is Thump Records (“Complainant”), represented by Allen Grodsky, of Grodsky and Olecki LLP, 2001 Wilshire Blvd., Suite 210, Santa Monica, CA 90403. Respondent is WebPros (“Respondent”), 302 Diamond St., Arcadia, CA 91006. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <thumprecords.com>, registered with Alldomains.com Inc. PANEL The undersigned certifies that r she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding. Sandra Franklin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 25, 2005; the National Arbitration Forum received a hard copy of the Complaint on March 30, 2005. On March 30, 2005, Alldomains.com Inc. confirmed by e-mail to the National Arbitration Forum that the domain name <thumprecords.com> is registered with Alldomains.com Inc. and that Respondent is the current registrant of the name. Alldomains.com Inc. has verified that Respondent is bound by the Alldomains.com 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 April 1, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 21, 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@thumprecords.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 27, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra Franklin 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. 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 <thumprecords.com> domain name is identical to Complainant’s THUMP RECORDS mark. 2. Respondent does not have any rights or legitimate interests in the <thumprecords.com> domain name. 3. Respondent registered and used the <thumprecords.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS On March 19, 1997, Complainant filed an application for the THUMP RECORDS trademark with the U.S. Patent and Trademark Office (Ser. No.75260325). Complainant was granted registration of the mark on November 24, 1998 (Reg. No. 2,206,183). On or about September 29, 1997, acting on behalf of Thump Records, Brandon Lee, the accountant for Thump Records, registered the <thumprecords.com> domain name through the registrar, AllDomains.com. Complainant registered the domain name for purposes of selling music records online. On or about September 14, 1998, Thump Records retained the services of Respondent, WebPros, to provide website design and hosting of Thump Record’s website located at the <thumprecords.com> domain name. Respondent operated Complainant’s website for several years. As part of the hosting agreement, Respondent was allegedly obligated to remit to Complainant monies generated from the online music sales of Thump records. In the fall of 2004, Respondent allegedly refused to remit those monies to Complainant. Complainant recently discovered through a WHOIS search of the disputed domain name that the domain name registration had been transferred from Complainant to Respondent without authorization from Complainant. Complainant terminated its relationship with Respondent on March 15, 2005. Despite the termination of services, Respondent allegedly continues to operate the disputed domain name and attached website, and continues to sell Complainant’s merchandise online. DISCUSSION 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. Scope of the Policy The Policy “establishes a streamlined, inexpensive administrative dispute-resolution procedure intended only for the relatively narrow class of cases of ‘abusive registrations.’” ICANN Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy, October 24, 1999, www.icann.org/udrp/udrp-second-staff-report-24oct99.htm, at paragraph 4.1(c). The class of cases “does not extend to cases where a registered domain name is subject to a legitimate dispute (and may ultimately be found to violate the challenger's trademark).” Id. This exclusionary function of the Policy “is a feature of the policy, not a flaw.” Id. The narrow scope of the Policy reflects its origins as a novel form of Internet dispute resolution designed to balance a wide range of perspectives regarding the regulation of Internet conduct. See Quarterview v. Quarterview Co. Ltd., AF-0209(a-b) (July 6, 2000); see also Tribeca Film Center Inc. v. Lorenzo Brusasco-Mackenzie, D2000-1772 (Apr. 10, 2001); see also Nintendo of Am. Inc. v. Jones, D2000-0998 (Nov. 17, 2000); see also Wal-Mart Stores Inc. v. wallmartcanadasucks.com, D2000-1104 (Nov. 23, 2000). Panels have determined, consistent with the aforementioned, that certain issues exceed the scope of the Policy and therefore are to be more properly resolved in courts of law. For example, Panels have held that contractual disputes, trademark infringement, breaches of fiduciary duties, employer/employee disputes, and other business disputes are issues that exceed the scope of the Policy. See Discover New England v. 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 Stevenson Indus., Inc. v. CPAP-PRO Online, FA 105778 (Nat. Arb. Forum Apr. 24, 2002) (determining that Complainant bears the burden of proof under the UDRP in stating “If the existence of [rights or legitimate interests] turns on resolution of a legitimate trademark dispute, then Respondent must prevail, because such disputes are beyond the scope of this proceeding”); 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 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 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”). In the instant case, Complainant is asserting that Respondent is violating contractual obligations that it agreed to when it began hosting Complainant’s website located at the disputed domain name. Complainant concludes that this breach of contract is the sort of issue this Panel should properly resolve. This Panel disagrees. Whatever the Panel’s thoughts on Respondent’s alleged violations of its agreement with Complainant, this Panel is moved to act not by sentiment, but by authority. The limited scope of the Policy simply does not grant such authority to panels to resolve disputes that hinge on contractual provisions, breaches of fiduciary relationships, fraud, and the like. Even were the Panel empowered to resolve this dispute, the contract for which this dispute would turn has not been advanced, although some documents relating to Complainant’s agreement with Respondent are in the record. Perhaps the Panel may simply adopt the words of the Honorable Panelist Richard Hill in finding this dispute exceeds the scope of the Policy, “Complainant charges that Respondent engaged in misconduct that would possibly implicate such legal claims as misrepresentation, fraud, breach of contract, or even breach of a fiduciary duty. Thus, this dispute is not covered by the Policy.” Drayton Nay v. Ice Inc., FA 400432 (Nat. Arb. Forum Mar. 16, 2005). DECISION Because this case exceeds the scope of the ICANN Policy, the Panel concludes that relief shall be DENIED. Sandra Franklin, Panelist Dated: May 11, 2005 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.