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ChanceryTrack.com : #Domain dispute a byproduct of pending divorce

Chancery Track LLC contested the ownership of the matching domain chancerytrack.com via the UDRP process.

In its filing, the Complainant shed light on the personal dispute of its officers due to a pending divorce:

Complainant contends that it has operated its business for years providing foreclosure case review to law firms, attorneys and title companies throughout New Jersey. It also contends that Respondent is a former employee (and “soon-to-be ex-husband” of Complainant’s principal) who has hijacked the disputed domain name and is redirecting it to his own website. Complainant does not contend that it has any trademark rights but asserts that it has common law rights in “Chancery Track.”

According to the UDRP details, the Respondent denies that he hijacked the disputed domain since it has always been held in his name. However, he does appear to be holding the disputed domain name as leverage in connection with a pending divorce proceeding both he and his “soon-to-be” ex-wife refer to in “other legal proceedings.”

The sole panelist at the WIPO called this case as unsuitable to be decided via the UDRP process and denied the domain’s transfer.

The domain transfer was denied.

Chancery Track, LLC v. Andrew Paul

Claim Number: FA2101001928125

PARTIES

Complainant is Chancery Track, LLC (“Complainant”), represented by Stephen J. Padula, Florida, USA. Respondent is Andrew Paul (“Respondent”), Florida, USA.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <chancerytrack.com>, registered with NameCheap, Inc..

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

Gerald M. Levine, as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on January 13, 2021; the Forum received payment on January 13, 2021.

On January 13, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <chancerytrack.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On January 14, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 3, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@chancerytrack.com. Also on January 14, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.

A timely Response was received and determined to be complete on January 15, 2021.

On January 18, 2021, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Gerald M. Levine 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” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant contends that it has operated its business for years providing foreclosure case review to law firms, attorneys and title companies throughout New Jersey. It also contends that Respondent is a former employee (and “soon-to-be ex-husband” of Complainant’s principal) who has hijacked the disputed domain name and is redirecting it to his own website. Complainant does not contend that it has any trademark rights but asserts that it has common law rights in “Chancery Track.”

Complainant further contends that Respondent “is in no way affiliated with [it]” and has no rights or legitimate interests in the disputed domain name. It concludes by asserting that “[t]he Respondents conduct in hijacking the Complainant’s domain and company name in an effort to redirect web-site traffic to its own website speaks for itself.“ Presumably, “speaking for itself” means that Respondent registered and is using the disputed domain name in bad faith.

B. Respondent

Respondent asserts that he acquired the disputed domain name on January 4, 2016 in his own name and has held it continuously since that date. He states that Complainant was subsequently formed on January 13, 2016. He also states that Complainant is no longer operational or in business. The evidence for this is supported by copies of Certificates of Formation annexed to his Response. He states that “Complainant closed Chancery Track LLC sometime in October 2020 and formed Chancery Track USA LLC on October 19, 2020 to hide and transfer assets of the company from Respondent.”

Respondent denies that he hijacked the disputed domain since it has always been held in his name. However, he does appear to be holding the disputed domain name as leverage in connection with a pending divorce proceeding both he and his “soon-to-be” ex-wife refer to in “other legal proceedings.”

FINDINGS

1. Although the disputed domain name corresponds in whole to “Chancery Track,” Complainant has not shown that it has trademark rights, thus lacks standing to maintain this UDRP proceeding.

2. It is unnecessary to assess whether Respondent has rights or legitimate interests in the disputed domain name.

3. The Panel concludes that the present dispute is outside the scope of the UDRP and the complaint must therefore be dismissed.

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.”

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.

Identical and/or Confusingly Similar

For a complainant to have standing to maintain a UDRP proceeding, it must show that it has “a trademark or service mark in which [it] has rights.” Here, Complainant has alleged that it has common law rights. See Microsoft Corporation v. Store Remix / Inofficial, FA1734934 (Forum July 10, 2017) (finding that “[t]he Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”).

To demonstrate established common law rights a complainant must establish that its mark has become a distinctive identifier which consumers associate with the complainant’s goods or services. WIPO Overview 3.0, section 1.3 notes that the evidence for establishing common law rights typically includes (i) the nature and duration of use of the mark, (ii) the amount of ales under the mark, (iii) the nature and extend of advertising using the mark, (iv) the degree of actual public (e.g. consumer, industry, media) recognition, and (v) consumer surveys.” See Regenxbio Inc. v. Solomon, FA1819239 (Forum January 14, 2019) (“absent supporting evidence of sales figures or extent of use, a complainant may not sufficiently allege common law rights in a mark under the Policy.”).

The formation of a company alone does not qualify has having a trademark or service mark. Low though the threshold for standing may be, it is not so low that a complainant’s assertion that it has “operated its business for years” can be received as evidence of its truth. Here, Complainant has provided no evidence that the term “Chancery Track” has become a distinctive identifier which consumers associate with the Complainant or any other evidence that would support a common law right.

Rights or Legitimate Interests

For the reasons more fully explained in the bad faith section below, this dispute is outside the scope of the UDRP in that it raises issues far beyond the claim of cybersquatting. Having thus concluded, it is not necessary to determine the issue of rights or legitimate interests.

Registration and Use in Bad Faith

While this dispute does involve rights over the disputed domain name, and superficially raises the issue of bad faith, the Panel finds that it is part of a larger and more divisive dispute that is currently being played out in divorce court in the State of Florida. In his Response, Respondent states (quoting line and verse) that “under Florida law, Chancery Track LLC is a marital asset.” Whether this be so is of no concern to the Panel accept to note the obvious, that the UDRP is not the proper forum for resolving a dispute that raises issues properly outside the scope of the UDRP that should properly be before the divorce court.

The UDRP is simply not designed to address evidence-heavy questions, such as are evident in this dispute. See Fuze Beverage, LLC v. CGEYE, Inc., FA 844252 (Forum January 8, 2007) (“The Complaint before us . . . is not the kind of controversy, grounded exclusively in abusive cyber-squatting, that the Policy was designed to address.”) Also, Frazier Winery LLC v. Hernandez, FA 841081 (Forum December 27, 2006) (holding that disputes arising out of a business relationship between the complainant and respondent regarding control over the domain name registration are outside the scope of the UDRP Policy).

For these reasons, it is unnecessary to wade into the question of whether Respondent registered or is using the disputed domain name in bad faith. Who as between the parties will ultimately be found to own the disputed domain name is better determined by the Court in which the divorce proceedings are currently being played out.

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

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

Gerald M. Levine Panelist

Dated: January 22, 2021


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