Lifetime Brands, Inc. v. Cosmos1 a/k/a NA NA c/o Andrey Vishnevskii
Claim Number: FA0907001272715
Complainant is Lifetime
Brands, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pfaltzgraf.com>, registered with Enom, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On July 13, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 3, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <pfaltzgraf.com> domain name is confusingly similar to Complainant’s PFALTZGRAFF mark.
2. Respondent does not have any rights or legitimate interests in the <pfaltzgraf.com> domain name.
3. Respondent registered and used the <pfaltzgraf.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lifetime Brands, Inc., through its subsidiary,
Pfaltzgraff Co., markets and sells various food preparation, tabletop, and home
décor products. Complainant has operated
under the PFALTZGRAFF mark since 1811.
Complainant holds multiple trademark registrations with the United
States Patent and Trademark Office (“USPTO”) for its PFALTZGRAFF mark (i.e.,
Reg. No. 73,482,119 issued
Respondent registered the <pfaltzgraf.com>
domain name on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant holds trademark registrations for the
PFALTZGRAFF mark with the USPTO. The Panel
finds Complainant has established rights in the PFALTZGRAFF mark under Policy ¶
4(a)(i) through its multiple registrations with the USPTO (i.e., Reg. No.
73,482,119 issued May 25, 1985). See Expedia,
Inc. v. Tan, FA 991075 (Nat. Arb. Forum
Complainant contends that Respondent’s <pfaltzgraf.com> domain name is
confusingly similar to Complainant’s pfaltZgrafF
mark. The disputed domain name
contains a common misspelling of Complainant’s mark, by subtracting the letter
“f,” with the addition of the generic top-level domain “.com.” The Panel finds that a common misspelling
with the addition of a top-level domain fails to adequately distinguish the
disputed domain name from Complainant’s PFALTZGRAFF mark. Therefore, the Panel finds the <pfaltzgraf.com>
domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶
4(a)(i). See Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any
rights or legitimate interests in the <pfaltzgraf.com> domain
name. The burden shifts to Respondent to
prove it does have rights or legitimate interests when Complainant makes a prima facie case in support of its
allegations under Policy ¶ 4(a)(ii). The
Panel finds Complainant made a sufficient prima
facie case. Respondent’s failure to
respond to the Complaint allows the Panel to infer that Respondent does not
have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to
determine whether Respondent has rights or legitimate interests in the disputed
domain name under Policy ¶ 4(c). See Vanguard Group, Inc. v. Collazo,
FA 349074 (Nat. Arb. Forum
Respondent uses the <pfaltzgraf.com> domain name to resolve to a website featuring links to third party websites, some of which relate to Complainant’s competitors. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Complainant asserts that Respondent has never been authorized
to use the PFALTZGRAFF mark. Complainant
further provides the WHOIS information which lists Respondent as “Andrey
Vishnevskii.” Respondent failed to
provide evidence that is commonly known by the <pfaltzgraf.com>
domain name. Furthermore, the Panel
fails to find evidence in the record suggesting that Respondent is commonly
known by the disputed domain name.
Therefore, the Panel finds Respondent is not commonly known by the
disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7,
2006) (concluding that the respondent was not commonly known by the disputed
domain names where the WHOIS information, as well as all other information in
the record, gave no indication that the respondent was commonly known by the
disputed domain names, and the complainant had not authorized the respondent to
register a domain name containing its registered mark); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Moreover, Respondent’s use of the <pfaltzgraf.com>
domain name constitutes typosquatting.
The Panel finds that Respondent’s use of a domain name that is a common
misspelling of the Complainant’s PFALTZGRAFF mark to redirect Internet users
seeking Complainant’s website fails to establish rights or interests pursuant
to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent registered the <pfaltzgraf.com>
domain name on
The Panel presumes Respondent receives click-through fees
from the hyperlinks to Complainant’s competitors and third parties. Respondent is using the confusingly similar
disputed domain name to profit from Internet users’ confusion as to
Complainant’s affiliation with the disputed domain name and resolving
website. The Panel finds Respondent’s
use of the disputed domain name constitutes bad faith registration and use
under Policy ¶ 4(b)(iv). See
Finally, Respondent’s <pfaltzgraf.com> domain
name shows evidence of typosquatting through the use of a common misspelling of
Complainant’s PFALTZGRAFF mark.
Therefore, the Panel finds Respondent’s use of typosquatting constitutes
bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r
firstname.lastname@example.org 1111111111, D2003-0232 (WIPO May 22,
2003) (finding the respondent registered and used the domain name in bad
faith because the respondent “created ‘a likelihood of confusion with the
complainant’s mark as to the source, sponsorship, affiliation, or endorsement
of the Respondent’s web site or location’. . . through Respondent’s persistent
practice of ‘typosquatting’”); see also Bank of Am. Corp. v. Tak Ume domains for
sale, FA 154528 (Nat. Arb. Forum
The Panel finds Complainant has satisfied 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 <pfaltzgraf.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 19, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum