A recent decision, Thomas E.Wright v. Oliver Graham (FA1804001783404, 21 May 2018), decided that the answer is a clear no. It is one many decisions to the same effect.
In Wright v Graham, the Complainant had contracted to maintain the Complainant’s information technology infrastructure. The Complainant said the Respondent had hijacked the domain name into his own name and operated the website with links to competitive businesses.
The Respondent case was that his business “Iron Horse” owned the domain name since merging it with the Complainant to form a new agency. Their Shareholders’ Agreement stated, “Assets brought in and transferred are owned by the Iron Horse shall include and consist of all computers; all web site and domains, initial and subsequent, and any and all such business personal property including computer data.” Accordingly, the Respondent claimed that he owned the domain name, relying on his interpretation of the contract and also that the Complainant had engaged in fraudulent business transactions.
The Panel, Vali Sakellarides, held that the basis of the dispute was a business/contractual dispute and it was therefore outside the scope of the UDRP Policy. This view had been summed up in a previous decision, Love v. Barnett, FA 944826 (Forum May 14, 2007):
“A dispute, such as the present one, between parties who each have at least a prima facie case for rights in the disputed domain names is outside the scope of the Policy … the present case appears to hinge mostly on a business or civil dispute between the parties, with possible causes of action for breach of contract or fiduciary duty. Thus, the majority holds that the subject matter is outside the scope of the UDRP and dismisses the Complaint.”
In making her observations, the Panelist also referred to a plethora of decisions where Panelists refused to become involved in commercial disputes, see: Luvilon Indus. NV v. Top Serve Tennis Pty Ltd., DAU2005-0004 (WIPO Sept. 6, 2005); Bracemart, LLC v. Drew Lima, FA 1494699 (Forum Mar. 28, 2013); Everingham Bros. Bait Co. v. Contigo Visual, FA 440219 (Forum Apr. 27, 2005); Fuze Beverage, LLC v. CGEYE, Inc., FA 844252 (Forum Jan. 8, 2007). Wright’s Case is therefore consistent with many other decisions.
The lesson to be learned is that disputes involving business and contractual issues should always be dealt with by the courts, and not by arbitration using the UDRP.
See also our earlier case note on H-D Michigan, LLC v. Jim Harley (NAF case no. FA1004001318741), 25 May 2010, in Domain Times on 31 May 2010.