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  • Web developer ordered to give domain name back to client

    1. BY - Jun 25, 2013
    2. Policy & Law
    3. 8 Comments

    Web developer trying to hold domain name as lien against unpaid bills.

    alaska-healthIt’s something we see time and time again…a business lets a web developer register their domain name, and then refuses to give it back.

    In the case of a UDRP between Alaska Health Fair, Inc. and Chris Jacobson, there was an added twist: Alaska Health Fair transferred its existing domain name alaskahealthfair.org to Jacobson, apparently thinking this was required for him to perform services.

    According to the decision by panelist Charles A. Kuechenmeister, Alaska Health Fair’s executive director transferred the domain name to Jacobson while he was doing web development for the group. The executive director may not have known what she was doing, Kuechenmeister writes, but she did correspond via email to help Jacobson take control of the domain.

    Now Jacobson says the group owes him money, and he wants to hold on to the domain until he’s paid. The domain name now resolves to a message that states:

    “This website is paused for non-pay on overdue invoices. This service is provided by Sunimod and requires recompense. The system will resume when a complete payment against invoice #130424 is made.”

    The invoice is for $1,500.

    The panelist used this to determine that the domain name was registered and used in bad faith by Jacobson, and ordered it transferred back to Alaska Health Fair.

8 Comments
  • While the decision might be a fair outcome, I believe the panelist should have denied the complaint as not being appropriate to a UDRP dispute.

    It is clearly a contract dispute. The Complainant paid fees to the Respondent for the services it performed. The domain was originally transferred to respondent as part of the work he performed.

    This is not a clear cut case of cybersquatting.

    This is another instance of a panelist who can’t resist exercising the power he has been granted, when he should have exercised restraint instead.

  • @Nat

    disagree with you. it seems that the developer “took” the domain from the owner under “questionable” circumstances/deceptions (which in itself was very wrong) and then tried to get money from the legitimate owner to get the domain up and running again (what the money was for is irrelevant, so too is the argument about just putting the site back up and/or returning the domain name).

    this to me seems like a clear cut case of domain hijacking. isn’t UDRP used often to get hijacked domains returned?

  • @Rob

    He wasn’t a hijacker. The non-profit wanted him to have the domain.

    “Additionally, in December 2012 Complainant actively assisted Respondent to re-register the Domain Name in his name when his initial efforts to transfer it failed.”

    This means he didn’t register it in bad faith. So the UDRP requirements aren’t met.

    The most that you can say is that holding it for ransom is bad faith use, but that is insufficient basis for ordering a transfer under the UDRP.

    This is a contract dispute, not a case of cybersquatting.

    If the facts as to how he came to possess the domain are in dispute, then in that case it is also a matter for the courts, not for the UDRP.

    The UDRP is only intended for clear-cut cases of cybersquatting.

  • Now they HAVE to start a lawsuit to recover the damages to thair business image, all other damages caused by the complete block of the site and punitive damages for the bad faith.

  • hang on, hang on, hang on…

    “The non-profit wanted him to have the domain.”

    without knowing the case, i feel that the above comment is REALLY stretching it quite far.

    i find it unfathomable that a person or business entity WANTS another person to own and control their domain name, unless of course they are totally ignorant about domains and are being conned by someone to think that it is necessary.

    nat, you as a person who knows about domains would know well that you never hand over your domain to anyone, there is no need to. i know a lot of developers do it, but i say that if you are honest then you tell your client that it is not required and leave control in their hands.

    personally i think your whole argument was just shot right out of the water with the above comment.

  • @rob

    I know of a lot of businesses where the company’s domain is registered in the name of the web designer. It is not good business practice and it causes problems down the road, but it doesn’t mean that the initial registration was in bad faith. It means just the opposite, that the initial registration was as a result of a business relationship between the parties voluntarily entered into by both parties, making it impossible that the initial registration was in bad faith. These scenarios do not meet the test of ‘registered in bad faith’ required by the UDRP.

    While the panelist may feel that he is doing the right thing by ordering the transfer – perhaps along the lines of ‘There is a wrong happening here and I have the power to correct that wrong’ – misapplying the UDRP to order a transfer when the UDRP specifically denies the power to transfer under those circumstances creates awful precedent and makes it easier for other parties to use the UDRP to take domain names from their rightful owners.

    Sometimes guilty parties are released because of a ‘technicality’. The outcome in that particular instance might be unjust. But following those technicalities protects all the innocent people who face the judicial process.

    Be careful what you wish for when you cheer when a panelist tramples on the language of the UDRP to justify the transfer of a domain.

  • The panel in the brinkmannqualityroofing.com dispute got it right. The decision was announced today.

    http://domains.adrforum.com/domains/decisions/1499810.htm

    The panelist faced a similar fact situation but declined to order a transfer because it was outside of the scope of the UDRP.

    He offered solid reasoning for his decision, which applies to this case as well-

    Based upon the reasoning outlined in the aforementioned cases and the record, the Panel concludes that this instant dispute contains a question of contractual interpretation, and thus falls outside the scope of the UDRP.

    For the reasons stated above, the majority finds that it is not necessary for the Panel to consider the three elements of the Policy.See Everingham Bros. Bait Co. v. Contigo Visual, FA 440219 (Nat. Arb. Forum Apr. 27, 2005) (“The Panel finds that this matter is outside the scope of the Policy because it involves a business dispute between two parties. The UDRP was implemented to address abusive cybersquatting, not contractual or legitimate business disputes.”); see also Fuze Beverage, LLC v. CGEYE, Inc., FA 844252 (Nat. Arb. Forum Jan. 8, 2007) (“The Complaint before us describes what appears to be a common-form claim of breach of contract or breach of fiduciary duty. It is not the kind of controversy, grounded exclusively in abusive cyber-squatting, that the Policy was designed to address.”); see also Frazier Winery LLC v. Hernandez, FA 841081 (Nat. Arb. Forum Dec. 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).

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