Lifetime Brands, Inc. v. Kanter Associates SA c/o Admin
Claim Number: FA1005001327171
Complainant is Lifetime
Brands, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <pflatzgraft.com>, registered with Fabulous.com Pty Ltd.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 28, 2010.
On May 30, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <pflatzgraft.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty 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 June 7, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 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@pflatzgraft.com. Also on June 7, 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 July 2, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant manufacturers and markets food preparation, tabletop and home décor products, including kitchenware, cutlery, cutting boards, bakeware, cookware, pantryware and glassware.
Complainant sells its products in retail chains and company-owned factory stores, as well as via the Internet and catalogs.
Complainant has trademarks for the PFALTZGRAFF mark registered with the United States Patent and Trademark Office (“USPTO”), including Reg. No. 1,334,344, issued May 7, 1985, and Reg. No. 1,919,285, issued September 19, 1995.
Respondent is not affiliated with Complainant, nor has Complainant given permission to Respondent to use Complainant’s PFALTZGRAFF mark.
Respondent registered the <pflatzgraft.com> domain name on November 7, 2002.
The disputed domain name redirects Internet users to a webpage displaying pay-per-click links to Complainant’s products and similar competing products, as well as links to goods completely unrelated to Complainant’s business.
Respondent’s <pflatzgraft.com> domain name is confusingly similar to Complainant’s PFALTZGRAFF mark.
Respondent is not commonly known by the <pflatzgraft.com> domain name.
Respondent does not have any rights to or legitimate interests in the <pflatzgraft.com> domain name.
Respondent has been the respondent in at least two other UDRP proceedings in which disputed domain names were transferred to the respective complainants.
Respondent registered and uses the <pflatzgraft.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of the PFALTZGRAFF trademark with
the USPTO establishes its rights in the mark for the purposes of Policy ¶ 4(a)(i), regardless of whether the Respondent lives or operates
in the country in which the mark is registered.
Respondent’s <pflatzgraft.com>
domain name is confusingly similar to Complainant’s PFALTZGRAFF mark. The domain name incorporates a variation of
Complainant’s mark consisting of two typographical errors: the letters “l” and “a”
are transposed and the final letter “f” is replaced with the letter “t.” The disputed domain name also includes the
generic top-level domain (“gTLD”) “.com.”
The indicated misspellings of Complainant’s mark are insufficient to
avoid a finding of confusing similarity as between the resulting domain name
and the competing mark. See, for
example, Neuberger Berman Inc. v.
Jacobsen, D2000-0323 (WIPO June 12, 2000) (finding that a respondent’s
<newbergerberman.com> domain name was confusingly similar to a
complainant’s NEUBERGER BERMAN mark despite the slight difference in spelling);
see also Pier 1 Imps., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that
the domain name <peir1.com> is confusingly similar to a complainant's
PIER 1 mark).
Likewise, the addition
of a gTLD to Complainant’s mark in forming the contested domain name is
irrelevant to a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007)
(concluding that the affixation of a gTLD to a domain name is irrelevant to a
Policy ¶ 4(a)(i) analysis); see also
Jerry Damson, Inc. v.
The
mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to
adequately distinguish the Domain Name from the mark.
The Panel therefore concludes that Respondent’s contested <pflatzgraft.com> domain name is confusingly similar to Complainant’s PFALTZGRAFF mark for purposes of Policy ¶ 4(a)(i).
Policy ¶ 4(a)(ii) requires that
Complainant present a prima facie
case on the question whether Respondent lacks rights to and legitimate
interests in the disputed domain name. Once Complainant presents such a case, the burden shifts to Respondent
to demonstrate that it nonetheless has rights to or legitimate interests in its
domain name. See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a
respondent has no rights or legitimate interests with respect to a domain, the
burden shifts to that respondent to provide “concrete evidence that it has
rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Because Complainant’s Submission constitutes a prima facie case
under the Policy, the burden effectively shifts to Respondent.
Moreover, Respondent’s failure to respond to the allegations of the Complaint filed in this proceeding permits us to presume that it has no rights to or legitimate interests in the contested domain. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for a panel to draw adverse inferences from a respondent’s failure to reply to a complaint filed under the Policy); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002):
Respondent’s
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.
Nevertheless, we elect to examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the policy.
We begin by observing that Complainant contends, and Respondent does not deny, that Respondent is not affiliated with Complainant, that Respondent has not been given permission by Complainant to use Complainant’s PFALTZGRAFF mark, and that Respondent is not commonly known by the <pflatzgraft.com> domain name. Moreover, the WHOIS information for the disputed domain name does not reflect any association between Respondent and the disputed domain name. On this record, we are constrained to conclude that Respondent is not commonly known by the disputed domain name so as to demonstrate that it has rights to or legitimate interests in the disputed domain name within the meaning of Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests in a contested domain name where a respondent was not commonly known by the mark there in issue and never applied for a license or permission from a complainant to use the trademarked name); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the pertinent WHOIS information, suggesting that that respondent was commonly known by the disputed domain name).
Complainant also alleges, without objection from Respondent,
that Respondent’s <pflatzgraft.com>
domain name redirects Internet users to a website featuring pay-per-click links
to Complainant’s products, as well as to similar competing products, and to products
and services completely unrelated to Complainant’s kitchen products business. Respondent’s use of the disputed domain name
to direct Internet users seeking Complainant away from Complainant’s website to
a website both competing with Complainant and profiting from its
redirection scheme does not constitute
either a bona fide offering of goods
or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i)
or 4(c)(iii). See Constellation Wines
We further conclude from the record in this proceeding that Respondent’s
<pfltazgraft.com> domain name demonstrates
typo-squatting because the only differences between the disputed domain name
and Complainant’s mark result from the transposition of two letters, which is a
common typing mistake, and the replacement of one letter (the letter “f”) with
a phonetically similar letter (the letter “t”).
Registration of a domain name containing Complainant’s mark with such changes
is typo-squatting and is therefore evidence that Respondent lacks rights to or
legitimate interests in the disputed domain name according to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
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 thus finds that Policy ¶ 4(a)(ii) has been satisfied.
It is undisputed on this record that Respondent has been a
respondent in at least two other UDRP proceedings in which disputed domain
names were transferred to the respective complainants. See Vanguard
Trademark Holdings
We also conclude that Respondent uses the <pflatzgraft.com> domain name to host pay-per-click links that disrupt Complainant’s business, because many of the links advertise products similar to those sold by Complainant. Directing Internet users to these competing websites and products via a domain name that appropriates Complainant’s mark indicates that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using disputed domains to operate a search engine with links to the products of a complainant and to that complainant’s commercial competitors, as well as by diverting Internet users to several other domain names); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used a disputed domain name to operate a search engine with links to a complainant’s commercial competitors).
We further take account of the apparent fact that the links
featured on Respondent’s website resolving from the <pflatzgraft.com> domain name are pay-per-click links that
generate revenue for Respondent each time they are accessed. Respondent’s evident intention is to profit by
thus misleading and confusing Internet users reveals bad faith registration and
use of the subject domain name pursuant to Policy ¶ 4(b)(iv). See Constellation Wines U.S. Inc. v.
We have already concluded that Respondent is engaged in typo-squatting through its registration of the <pflatzgraft.com> domain name, which is confusingly similar to Complainant’s mark. Typo-squatting is itself evidence of bad faith registration and use of a domain name pursuant to Policy ¶ 4(a)(iii). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005): “Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] … mark.”
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).
For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <pflatzgraft.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 9, 2010
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