OnlineDomain.com Domain Name News & Opinions
A UDRP complaint for windowsforums.com was denied at the National Arbitration Forum. One would expect Microsoft to be the Complainant but it wasn’t. The Panel decided that this was a business/contractual dispute that fell outside the scope of the UDRP and dismissed the Complaint.
Complainant was Michael J. Fara from New York that filed the complaint after he agreed to buy the domain for $6,995 at buydomains.com but then the seller, Sean Spurr, received a better offer and decided to cut Complainant out of the deal.
Complainant submitted the Complaint to the National Arbitration Forum July 20, 2012. The domain windowsforums.com was registered in 2004.
I am not sure who the Respondent was as the Complaint identifies Respondent as “Identity Protection Service / Identity Protect Limited” from United Kingdom and also because Respondent failed to submit a Response in this proceeding. I don’t know why Respondent is not John Fairbrother that is the current Registrant as it can be seen in whois. Respodent is not Sean Spurr either. Sean Spurr was the alleged owner when Michael J. Fara agreed to buy the domain.
Complainant operates various websites such as windowsforum.com (since 1999), forumswindows.com, microsoftwindowsforums.com and windows7forums.com. Complainant claimed to own and operate Windows forum communities, and also claims to have a good relationship with Microsoft, the owner of the WINDOWS mark. Complainant contended to have a “bona-fide de-facto trademark over ‘WindowsForums.’ and that he doesn’t need not own a trademark registration for the mark in the United States.
The Panel noted that Complainant’s arguments in the present case stemmed from a failed business/contract action. Complainant submitted evidence to show that it had purportedly purchased the disputed domain name from a third-party, Sean Spurr, for $6,995.00. However, Complainant argued that, after it forwarded the money to the account in question, the authorization codes to transfer the disputed domain name failed to work. Complainant submitted numerous e-mail communications that it had with the purported seller of the disputed domain name, the registrar, and the domain name broker at buydomains.com. Complainant contended that, after it made the deal to buy the disputed domain name, Mr. Spurr received a better offer and decided to cut Complainant out of the deal. The Panel noted that the bulk of Complainant’s arguments extends from this breach of contract that it claimed occurred regarding the sale and transfer of the disputed domain name, as well as its rightful ownership of the domain name because of its prior purchaser status.
The Panel then presented a few relevant cases and based upon the reasoning outlined in these cases and the record, the Panel concluded that the instant dispute contains a question of contractual interpretation, and thus falls outside the scope of the UDRP. The Panel therefore dismissed the Complaint.
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“I am not sure who the Respondent was as the Complaint identifies Respondent as “Identity Protection Service / Identity Protect Limited” from United Kingdom.”
The UDRP issued multiple requests for the complaint to be changed, including the name of the Respondent to the one listed on the domain WHOIS, even though we were able to trace it to John Fairbrother. They also made us change the wording and context of the claim numerous times to make sure it wasn’t thrown our on arbitrary “technical” grounds.
To date, there is no question in my mind, that this was not only a violation of ICANN rules, as to what went on here, but BuyDomains went quickly from siding with the buyer (us) and taking a neutral stance when the idea of testimony was brought up. Further, the seller willfully deceived the buyer and the 3rd party auction house by saying that he believed “legal issues” would require him to pull out of the deal, even transferring the auth codes and then invalidating them once he got a better deal from Fairbrother.
We also made the mistake of hiring one arbitration judge to look at the case instead of an entire panel, which, of course, costs more.
We suspect the seller was still shopping, and so was Mr. Fairbrother, who likely heard rumors of our move, as one of his main competitors in the online support forum category, through a leak in our organization. While UDRP cites “breach of contract”, this type of activity from Fairbrother borders on criminal. Interesting to see someone still posting about this.