Two brothers from Canada went against each other in a UDRP dispute at the National Arbitration Forum for the domain name Bousada.com. Panelist Beatrice Onica Jarka found that the dispute fell outside the scope of the UDRP and dismissed the complaint.
The Complainant was Reed Bousada of Bousada Interiors and the Respondent was his brother Jay Bousada of Thrillworks Inc. Their father started using the “Bousada” name in 1953 to identify his companies, 9029-4043 Québec Inc., Bousada Interiors, and Les Intérieurs Bousada, and to offer its services in retail and installation of flooring products and other services for residential or commercial purposes. Complainant is the successor to his father’s flooring company.
Complainant claimed that Respondent’s use of the disputed domain name causes disruption to Complainant’s business. Respondent registered the bousada.com domain name because he intended to use the domain name for a professional blog relating to his field of work, which is entirely unrelated to flooring. Complainant defaulted on payment of the work performed by the Respondent’s company. Complainant operates on another domain name bousadainc.com.
The Panel found that this dispute was outside the scope of UDRP and this is the reasoning:
The submissions of both parties relate to a complex trade dispute with possible causes of action for breach of contract or trust duty.
In this sense, the Panel notes that according to the Respondent, he was the one who registered, paid for, renewed, and managed the <bousada.com> domain name with no contribution or guidance from Complainant. Moreover, the Panel further notes that, according to the Respondent, the Complainant’s business was only temporarily permitted to use the domain name until Respondent decided to use the domain name for his own purposes, and on July 3, 2012, Respondent notified Complainant that his right to use the <bousada.com> domain name was ending due to failure to pay for any of Respondent’s services.
On the side of the Complainant, Panel also notes that the submission of the Complainant refers to breach of trust or contract by his brother who is the Respondent, who Complainant hired “many years ago” to set up the website, which Respondent registered for on Complainant’s behalf. Complainant trusted his brother to establish the resolving website. Complainant eventually decided that the website needed a makeover, and opted to hire a local company to do the job in order to complete the work more quickly; however, the domain’s access was blocked because Respondent held the code to the <bousada.com> domain name. Complainant contacted Respondent attempting to gain the access code, to which Respondent replied that Complainant owed him money. Complainant claims that Respondent has not replied to any further correspondence and that the website was shut down following the twenty-four time frame after trying to obtain the access code from Respondent.
The aspects of this case as presented by both parties are complex and require further submission of evidences to clear the factual situation, which, in the opinion of this Panel is object of a business and/orcontractual dispute between two companies that falls outside the scope of the UDRP.
In this sense, the Panel considers the well known practice of UDRP panels that, in some circumstances the dispute falls outside the UDRP and has to be dismissed.[…]
Based upon the reasoning outlined in the aforementioned cases and the record, the Panel concludes that the instant dispute contains a question of contractual interpretation, and thus falls outside the scope of the UDRP.
Based on this finding, the Panel dismisses the Complaint.