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January 27, 2011 / Nate Harris

Panel Lays Smack Down on Parties Fighting Over adyaclarity.com

Summary of Adya, Inc. v. A Clark /  Intensity Webhosting
(Nat. Arb. Forum Claim No. 1360903)

Filed: November 30, 2010; Decided: January 10, 2011 (Panelist: Debrett G. Lyons)

Disputed domain name: <adyaclarity.com>

adyaclarity.com

The Parties

Complainant Adya, Inc. (“Adya”) manufactures water purifying tablets under the trademark ADYA. As for the Respondent A. Clark (“Clark”), the Panel finds based on the available evidence that “whether or not Respondent could be described as a distributor of Complainant’s goods, Respondent has sold those goods in the past with Complainant’s permission.”

Preliminary Issue No. 1: Procedural Deficiency

Each of the parties submitted multiple additional submissions, none of which complied with the Forum’s Rules. Though the Panel notes that it has freedom to disregard them, it nonetheless takes them into account in reaching its decision.

Preliminary Issue No. 2: Scope of the Policy

As the Panel notes, “[a] fundamental question arises in this case as to whether the dispute between the parties properly falls for determination under the Policy,” since “the Policy is inapplicable to business disputes arising from which there is a question concerning the rightful ownership of the a domain name.”

With those general concerns laid out, the Panel sets its sights on the parties:

In the present case, neither party has shown particular concern for the Policy or what it requires to be shown.  Were the Panel to have analysed the Complaint in accordance with the Policy, there is a real question as to whether Complainant would have satisfied Paragraph 4(a)(ii).   That said, although Respondent is keen to characterize the matter as a business dispute, it gives little detail of the nature of the relationship between the parties or of the permission it alleges it had from Complainant to use and register the domain name.

What is clear, however, is that Respondent has sold Complainant’s goods bearing a trademark broadly corresponding with the disputed domain name with the Complainant’s knowledge and permission and under an unwritten agreement between the parties which Complainant is unenthusiastic to elaborate upon.  [ . . . ] The Panel considers that there is ample weight in prior UDRP decisions to justify a ruling that the matter is properly one for another forum. Any hesitation the Panel may have initially had in that respect was resolved by the content of the non-compliant communications made to the Forum by the parties following the Response. (emphasis added)

Decision

The complaint is denied.

Commentary

Ouch. Both parties got a well-deserved smackdown in this decision. As the Panel finds, this is clearly not a fact pattern suited for the UDRP. [This falls into the “sour relationship” category I discussed here a while back.]

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