DECISION

Miff Munitions, Inc. d/b/a 9mm.com v. Domains for Cheap

Claim Number:  FA0408000309943

PARTIES

Complainant is Miff Munitions, Inc. d/b/a 9mm.com (“Complainant”), represented by Richard K. Berger of Berkent Legal Services, P.C., 11 Salvi Drive, Framingham, MA 01701.  Respondent is Domains for Cheap (“Respondent”), 3655 W. Anthem Way, Anthem, AZ 85086.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <9mm.com>, 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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

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

On August 9, 2004, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <9mm.com> is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. 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 August 16, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 7, 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@9mm.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 Forum transmitted to the parties a Notification of Respondent Default.

On September 14, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 <9mm.com> domain name is identical to Complainant’s 9MM.COM mark.

2. Respondent does not have any rights or legitimate interests in the <9mm.com> domain name.

3. Respondent registered and used the <9mm.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Miff Munitions, Inc. d/b/a 9mm.com, is in the business of providing Internet services such as e-mail, web hosting and co-location services. 

Complainant registered the <9mm.com> domain name through Network Solutions on September 20, 1997 and paid for the domain name registration until September 12, 2012.  Complainant has used the 9MM.COM mark continuously in association with its Internet services since 1997 and Complainant has not registered the mark with the United States Patent and Trademark Office or in any other country. 

In an e-mail from Network Solutions, dated November 7, 2003, sent to Complainant’s contact e-mail address at miff@9mm.com, it was indicated that an unknown person requested the transfer of the <9mm.com> domain name registration to the unknown “Mark Cummings.”  The e-mail requested authorization to change the name of the registrant, but the request failed when Complainant did not authorize the transfer.  An e-mail dated November 22, 2003 from Network Solutions notified Complainant that the attempt to transfer had failed. 

On December 3, 2003, Network Solutions sent an e-mail to miff@9mm.com confirming that the password for the <9mm.com> domain name had been changed.  The contact e-mail address was then changed to one not controlled by Complainant, and the <9mm.com> domain name registration was subsequently transferred to Godaddy.com and to another registrant.

Network Solutions determined on December 5, 2003 that there was no fraud, because its internal policy had been satisfied.  Network Solutions stated in an e-mail that a confirmation e-mail had been sent to the administrative contact at blah@ctf.edu listed for the <9mm.com> domain name at the time of the request and that contact confirmed the transfer.  However, this e-mail address was not again listed subsequent to the transfer of the disputed domain name to Godaddy.com.  The first e-mail address listed with Godaddy.com was for Mark Louis at hamster@usa.com with the business Nine MM Inc. located in Indianapolis, Indiana.

Complainant conducted searches for the entity Nine MM Inc. via Google and the Illinois Secretary of State website.  According to these searches, this company does not exist.  Furthermore, in the WHOIS information dated December 15, 2003, the only address given for Nine MM Inc. was an unnumbered P.O. Box in Indianapolis, Indiana.  Complainant attempted to call Mark Louis, the person listed as the technical contact for the  <9mm.com> domain name, and Complainant was connected to ecorp.com instead of to Nine MM Inc.  Complainant’s calls and voicemails to ecorp.com have gone unanswered. 

Subsequent to the WHOIS report mentioned above, the registrant information for the <9mm.com> domain name has been changed to Domains for Cheap c/o Jason Smith.  The disputed domain name has not been used in any way.

Complainant has had numerous discussions with Godaddy.com and its General Counsel Christine Jones, Esq. regarding the return of the <9mm.com> domain name registration to Complainant.  Godaddy.com has instructed Complainant that it is unable to transfer the domain name registration without judicial instruction, but it did inform Complainant that the disputed domain name has been placed on Registrar-Hold status awaiting a judicial instruction. 

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.

Procedural Matters

This case involves a complainant who claims that it owned a domain name registration and that the domain name registration was fraudulently transferred to another registrant and a different registrar.  However, although it appears from the record that Complainant was the victim of fraudulent activity, the purpose of the Policy is to deal with abusive domain name registrations by deterring the abusive practice known as “cybersquatting.”  Thus, since the instant case primarily involves a fraudulent registration transfer, not cybersquatting, the Panel finds that this dispute is outside the scope of the Policy.  See Decker v. Antwer, FA 263584 (Nat. Arb. Forum June 28, 2004) (“[S]ince the instant case does not involve the practice of cybersquatting and is more accurately described as a fraudulent registration transfer, the Panel finds that this dispute may be more suitable in a court of law as it exceeds the scope of the Policy.”); see also Digital-Logic AG v. Krechman, FA 235827 (Nat. Arb. Forum Apr. 8, 2004) (“[T]he Panel finds that this dispute raises potential contractual issues and suggests fraudulent activity on the part of Respondent, which failed to complete the transfer of the domain name at issue and subsequently renewed the name.  Therefore, the Panel finds that the dispute is beyond the scope of the Policy.”); see also Commercial Publ’g Co. v. EarthComm., Inc., FA 95013 (Nat. Arb. Forum July 20, 2000) (stating that the Policy’s administrative procedure is “intended only for the relatively narrow class of cases of ‘abusive registrations.’”  Cases where registered domain names are subject to legitimate disputes are relegated to the courts.).

DECISION

Having found this dispute to be outside the scope of the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is Ordered that the <9mm.com> domain name REMAIN WITH Respondent.

John J. Upchurch, Panelist

Dated:  September 28, 2004

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