Lands' End, Inc. v. Andrey Ermeyev
Claim Number: FA1005001323780
Complainant is Lands'
End, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <landslend.com>, registered with UK2 Group LTD.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 10, 2010.
On May 11, 2010 and May 17, 2010, UK2 Group LTD confirmed by e-mail to the National Arbitration Forum that the <landslend.com> domain name is registered with UK2 Group LTD and that Respondent is the current registrant of the name. UK2 Group LTD has verified that Respondent is bound by the UK2 Group LTD registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May 21, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 2010 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@landslend.com. Also on May 21, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 14, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
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" through submission of a Written Notice, as defined in Rule 1. 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 <landslend.com> domain name is confusingly similar to Complainant’s LANDS’ END mark.
2. Respondent does not have any rights or legitimate interests in the <landslend.com> domain name.
3. Respondent registered and used the <landslend.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lands' End, Inc., is a company offering retail store and mail order services specializing in casual clothing, footwear and accessories, luggage, and home furnishings. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the LANDS’ END marks (e.g., Reg. No. 1,263,612 issued January 10, 1984).
Respondent, Andrey Ermeyev, registered the <landslend.com> domain name on October 14, 2004. The disputed domain name resolves to a website displaying generic links to both competing and noncompeting third-party websites.
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 owns multiple trademark registrations with the
USPTO for the LANDS’ END marks (e.g.,
Reg. No. 1,263,612 issued January 10, 1984).
The Panel finds that, according to Policy ¶ 4(a)(i),
Complainant has conclusively shown its rights in the LANDS’ END mark by
providing substantial evidence of its trademark registrations with the USPTO. The Panel further finds that Complainant’s
trademark registrations are sufficient to prove its rights regardless of
whether the Respondent lives or operates in the
Complainant alleges that the <landslend.com> domain name is confusingly similar to Complainant’s LANDS’ END mark. The differences between the disputed domain name and Complainant’s mark are the deletion of the apostrophe, the omission of the space between the terms of Complainant’s mark, the insertion of the letter “l,” and the addition of the generic top-level domain (“gTLD”) “.com.” The Panel finds that omitting the space between the terms and omitting the punctuation marks, like the apostrophe, are meaningless changes that do not affect confusing similarity under Policy ¶ 4(a)(i) because the requirements of domain names prevent the registration of domain names containing such elements. See Gurney’s Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Nat. Arb. Forum Feb. 19, 2003) (“Punctuation and spaces between words are not significant in determining the similarity of a domain name and a mark because punctuation and spaces are not reproducible in a domain name.”); see also Daddy’s Junky Music Stores, Inc. v. Kausar, FA 140598 (Nat. Arb. Forum Feb. 11, 2003) (“The lack of an apostrophe in the domain name is not a distinguishing difference because punctuation is not significant in determining the similarity of a domain name and a mark.”). The Panel finds an inserted letter resulting in a minor misspelling also does not differentiate the disputed domain name from Complainant’s mark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks). The Panel determines that a gTLD is completely irrelevant to the Policy ¶ 4(a)(i) analysis and does not prevent confusing similarity. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). The Panel, therefore, finds Respondent’s <landslend.com> domain name to be confusingly similar to Complainant’s LANDS’ END mark for the purposes of Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i)
has been satisfied.
Complainant bears the initial burden of presenting a prima facie case against Respondent pursuant to Policy ¶ 4(a)(ii). After presenting an adequate prima facie case, such as the one presented here, the burden transfers to Respondent to demonstrate its rights and legitimate interests in the disputed domain name. In this case, Respondent has failed to carry this burden as it met Complainant’s allegations with nothing more than silence. The Panel thus infers that Respondent does not contest Complainant’s allegations and that Complainant’s arguments against Respondent’s rights and legitimate interests are true. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). In an effort to make a complete determination on the issue, however, the Panel elects to consider the evidence presented in light of the Policy ¶ 4(c) factors to decide whether Respondent has rights and legitimate interests in the disputed domain name.
Complainant contends that Respondent is not commonly known by the <landslend.com> domain name and that this fact is an indicator of Respondent’s lack of rights and legitimate interests. The Panel finds that the WHOIS information lists the registrant of the disputed domain name as “Andrey Ermeyev,” a name lacking association with the disputed domain name. Without further evidence showing a nominal connection between Respondent and the disputed domain name or evidence supporting that Respondent was authorized to use Complainant’s mark, the Panel finds that Respondent does not possess rights and legitimate interests in the disputed domain name according to 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 Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Complainant argues that the <landslend.com> domain name is being used only to redirect Internet users to a host site for varied competing and non-competing pay-per-click links to third-party websites. Complainant asserts that displaying such links does not fulfill the bona fide offering of goods or services or the legitimate noncommercial or fair use requirements of Policy ¶¶ 4(c)(i) or 4(c)(iii) and therefore fails to endow Respondent with rights and legitimate interests in the disputed domain name. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Complainant asserts that the primary difference between Complainant’s LANDS’ END mark and the <landslend.com> domain name is the extra letter “l” inserted into Complainant’s mark. Complainant argues that this single extra letter converts the disputed domain name into a variation of Complainant’s mark that results from a typographical error, which represents Respondent’s efforts at typosquatting. The Panel finds such typosquatting to be evidence of Respondent’s lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Complainant alleges that Respondent’s website resolving from the <landslend.com> domain name advertises third party links to both Complainant’s official site and to competing websites that offer similar products like clothing and footwear. Respondent is thus using the disputed domain name to divert Internet users seeking Complainant to competitors’ websites, which disrupts Complainant’s business. The Panel finds that Respondent’s attempts to disrupt Complainant’s business with competing links reveals bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant contends that the links present on Respondent’s
website resolving from the <landslend.com>
domain name are presumably pay-per-click links that generate revenue for
Respondent. Respondent is therefore
appropriating Complainant’s mark for use in the disputed domain name in order
to attract Internet users and create confusion about the relationship between
Respondent and Complainant. The Panel finds these activities to profit by
intentionally creating confusion and misleadingly attracting Complainant’s
customers demonstrate bad faith registration and use under Policy ¶ 4(b)(iv). See
The Panel has previously held that Respondent’s use of the
<landslend.com> is typosquatting. The Panel finds that typosquatting, even
without other Policy ¶ 4(b) factors, is sufficient to support a finding of
Respondent’s bad faith registration and use according to Policy ¶ 4(a)(iii) as Respondent is trying to take advantage of simple typographical
errors Internet users frequently make when entering Complainant’s mark. See Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged
in typosquatting, which is evidence of bad faith registration and use under
Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for
sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s
registration and use of the disputed domain name demonstrates a practice
commonly referred to as ‘typosquatting.’
This practice diverts Internet users who misspell Complainant’s mark to
a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as
evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <landslend.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: June 28, 2010
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