LF, LLC v. Kas Is / cas issen
Claim Number: FA2108001958712
Complainant is LF, LLC (“Complainant”), represented by Steven M. Levy, District of Columbia, USA. Respondent is Kas Is / cas issen (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <myloweslifes.org> and <myloweslifelogin.com>, registered with NameSilo, LLC; NameCheap, Inc.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 9, 2021; the Forum received payment on August 9, 2021.
On August 9, 2021, NameSilo, LLC; NameCheap, Inc. confirmed by e-mail to the Forum that the <myloweslifes.org> and <myloweslifelogin.com> domain names are registered with NameSilo, LLC and NameCheap, Inc. and that Respondent is the current registrant of the names. NameSilo, LLC and NameCheap, Inc. have verified that Respondent is bound by the NameSilo, LLC and NameCheap, Inc. registration agreements 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 August 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 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@myloweslifes.org, postmaster@myloweslifelogin.com. Also on August 11, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 6, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that the domain names are controlled by the same entity from the following evidence: both of the disputed domain names use a similar naming pattern of adding an element to the phrase “MyLowesLife”; both of the disputed domain names resolve to very similar website content, i.e., a fake blog claiming to discuss Complainant’s employee login portal at <myloweslife.com>; the WHOIS records list the named Registrants of the disputed domain names as “Kas Is” and “cas issen” and the Registrant phone numbers as “7947189615” and “+1.18961515” (note the common use of the digits 89615 in two apparently false phone numbers); and a link at the <myloweslifes.org> website links users directly to the <myloweslifelogin.com> website.
The Panel finds the disputed domain names are commonly owned/controlled by a single Respondent who is using multiple aliases.
A. Complainant
i) Complainant, LF, LLC, is a wholly-owned subsidiary of Lowe’s Companies, Inc. Complainant has rights in the LOWE’S mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,168,799, registered Sept. 8, 1981). The disputed domain names are identical and/or confusingly similar to Complainant’s LOWE’S mark because they incorporate Complainant’s entire mark, adding generic and/or descriptive terms (“my”, “life” or “lifes,” and “login”) and a generic top-level domain (“gTLD”) (“.org” and “.com”).
ii) Respondent lacks rights and legitimate interests in the disputed domain names as Respondent is not commonly known by the disputed domain names, nor is Respondent affiliated with Complainant. Additionally, Respondent does not use the disputed domain names for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use because Respondent copies a well-known trademark for the purpose of harvesting user information, hosting monetized advertisements, and diverting traffic away from Complainant’s legitimate website through impersonation and passing off with a fake blog.
iii) Respondent registered and uses the disputed domain names in bad faith. Respondent is seeking to disrupt Complainant’s business and obtain commercial gain through confusion with Complainant’s LOWE’S mark and <myloweslife.com> website. Specifically, Respondent uses fake blog content and Complainant’s logo, website content, and photograph to divert Complainant’s customers away from Complainant’s legitimate <lowe’s.com> and <myloweslife.com> websites. Additionally, Respondent is using this confusion to collect users’ information and promote monetized advertisements by third-party companies, generating revenue for itself. Respondent also manifests bad faith since it failed to respond to and comply with Complainant’s cease-and-desist notices. Lastly, Respondent had actual knowledge of Complainant’s rights in the LOWE’S mark based on Complainant’s extensive use of the mark long before the creation of the disputed domain names, the fame of Complainant’s mark, and the fact that Respondent’s websites specifically reference the mark and its related logo.
B. Respondent
Respondent did not submit a response to this proceeding.
1. The disputed domain names were registered on January 19, 2020 and June 17, 2017, respectively.
2. Complainant has established rights in the LOWE’S mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,168,799, registered Sep. 8, 1981).
3. Respondent copies Complainant’s mark for phishing for information, hosting monetized advertisements, and diverting traffic away from Complainant’s legitimate website through impersonation and passing off with a fake blog.
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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights in the LOWE’S mark through its registration with the USPTO (e.g., Reg. No. 1,168,799, registered Sep. 8, 1981). Registration of a mark with a national trademark agency is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Panel finds Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain names are identical and/or confusingly similar to Complainant’s LOWE’S mark because they incorporate Complainant’s entire mark, adding generic and/or descriptive terms (“my”, “life” or “lifes”, “login”) and gTLDs (“.org” and “.com”). When the entire mark is incorporated, adding a generic term and the gTLD “.org” or “.com” to the mark does not negate confusing similarity. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Therefore, the Panel finds that the disputed domain names are identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain names because Respondent is not commonly known by the disputed domain names, nor is Respondent affiliated with Complainant. Under Policy ¶ 4(c)(ii), when no response is submitted, relevant WHOIS information may demonstrate that a respondent is not commonly known by a disputed domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Additionally, lack of affiliation or authorization to use a mark is further evidence that a respondent is not commonly known by the mark. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). The WHOIS information identifies “Kas Is” and “cas issen” as the registrants for the <myloweslifes.org> and <myloweslifelogin.com> domain names, respectively. Additionally, Complainant asserts that Respondent is not affiliated with Complainant. Thus, the Panel finds that Respondent is not commonly known by the domain names under Policy ¶ 4(c)(ii).
Furthermore, Complainant argues that Respondent does not use the disputed domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and 4(c)(iii) because Respondent copies a well-known trademark for the purpose of harvesting user information, hosting monetized advertisements, and diverting traffic away from Complainant’s legitimate website through impersonation and passing off with a fake blog. Passing off for the purpose of diverting, collecting consumers’ information, and hosting monetized advertisements by unrelated third parties does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Priceline.com LLC v. levesque, bruno, FA1506001625137 (Forum July 29, 2015) (“The Panel finds that Respondent’s attempt to divert Internet users who are looking for products relating to Complainant’s famous mark to a website unrelated to the mark does not engage in a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”); see additionally Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”). Complainant points out that the disputed domain names are impersonations of Complainant’s <myloweslife.com> employee login website. Complainant also provides evidence showing that Respondent’s websites that resolve from the disputed domain names contain links to other locations on the same page, links to fake blog pages targeting other well-known trademarks, and links to monetized advertisements. Complainant contends that Respondent’s websites pretend to be a blog offering information on how to access Complainant’s employee portal website, but the real purpose of the websites is to divert traffic from Complainant’s legitimate <myloweslife.com> site through passing off and then funnel users to certain pages to derive revenue from the monetized advertisements that promote unrelated third parties. For example, a page within the <myloweslifes.org> website (accessed by clicking on the “MYLOWESLIFE LOGIN” link at the top of the page) contains a “Contact Us” form through which Respondent collects the names and email addresses of users. Further, in the middle of the <myloweslifes.org> home page, there are links to other fake blogs relating to well-known third-party trademarks such as McDonald’s, Walmart, United Airlines, among others. Additionally, the <myloweslifelogin.com> website contains at the bottom a form, in which the user is invited to input their name and email address (ostensibly to leave a comment but, in reality, for phishing by Respondent). Finally, the <myloweslifelogin.com> pages contain monetized advertisements that lead the user to unrelated third-party commercial websites. Therefore, the Panel finds that Respondent is not using the domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant argues that Respondent registered and uses the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv) because Respondent is seeking to disrupt Complainant’s business and obtain commercial gain through confusion with Complainant’s LOWE’S mark and <myloweslife.com> website. Specifically, Respondent uses fake blog content and Complainant’s logo, website content, and photograph to divert Complainant’s customers away from Complainant’s legitimate <lowe’s.com> and <myloweslife.com> websites. Additionally, Respondent is using this confusion to collect users’ information and promote monetized advertisements by third-party companies, generating revenue for itself. Passing off in order to divert Internet users to respondent’s website, where respondent promotes third-party commercial websites and phishes for personal information is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also American Cheerleader Media, LLC. v. ilir shoshi / cheer, FA 1592319 (Forum Jan. 20, 2015) (“The Panel here finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) as … Respondent utilizes a logo and stylized font identical to Complainant’s own, as well as Complainant’s copyrighted images and text in an attempt to pass itself off as Complainant.”); see additionally FIL Limited v. Li jie, FA 1718900 (Forum Mar. 17, 2017) (finding the <fidelity.cn.com> domain name was registered and used in bad faith as it resolved to a website which mimicked the complainant’s login page in an attempt to gain Internet users’ personal and financial information); see additionally Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 16, 2007) (concluding that Internet users would likely be confused as to the source or sponsorship of the <blackstonewine.com> domain name with the complainant because the respondent was redirecting Internet users to a website with links unrelated to the complainant and likely receiving click-through fees in the process). Complainant provides screenshot evidence showing that Respondent uses “Contact” or “Comment” forms to phish for users’ information. Respondent also promotes unrelated third parties and displays monetized advertisements aimed at earning click-through revenue. Further, Complainant alleges that Respondent also passes off by copying copyright-protected graphic elements owned by Complainant (e.g., logo, portions of Complainant’s website, photographs of Complainant’s shops). Complainant contends that Respondent cannot claim use of the disputed domain names for good faith informational blog sites, since Respondent provides no disclaimer on the websites. Thus, the Panel finds bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Lastly, Complainant argues that that Respondent registered the domain names in bad faith since Respondent had actual knowledge of Complainant’s rights in the LOWE’S mark based on Complainant’s extensive use of the mark long before the creation of Respondent’s domain names, the fame of Complainant’s mark, and the fact that Respondent’s websites specifically reference the mark and its related logo. Per Policy ¶ 4(a)(iii) actual knowledge of a complainant’s trademark rights is sufficient to establish bad faith and may be demonstrated by the substantial fame of the mark and the respondent’s use of the complainant’s mark and logo on the website. See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”); see also Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Complainant provides screenshot evidence of its business operations and media coverage of its business, demonstrating that Complainant and its mark is famous. Complainant also cites past UDRP decisions where Complainant’s LOWE’S mark was found to be famous. See, e.g., LF, LLC v. Metro Concourse Limited / Domain Handler, FA 1430498 (Forum Apr. 5, 2012) (“the Panel finds that, due to the fame of Complainant's [LOWE’S] mark, Respondent had actual knowledge of the mark and Complainant's rights”). Complainant also provides screenshots of Respondent’s websites, which make use of Complainant’s mark and logo. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain names that Respondent had actual knowledge of Complainant’s rights in the LOWE’S mark, and finds Respondent’s bad faith registration of the disputed domain names pursuant to Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <myloweslifes.org> and <myloweslifelogin.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: September 9, 2021
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