Lifetime Brands, Inc. v. Hemang Infrasructure Private Limited
Claim Number: FA1005001327173
Complainant is Lifetime
Brands, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 28, 2010.
On May 29, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com> domain names are registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the names. Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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 3, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 23, 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@pfaltzcraft.com, postmaster@pfalzgraft.com, postmaster@phaltzgraff.com, and postmaster@phlatzgraff.com. Also on June 3, 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 29, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com> domain names are confusingly similar to Complainant’s PFALTZGRAFF mark.
2. Respondent does not have any rights or legitimate interests in the <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com> domain names.
3. Respondent registered and used the <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lifetime Brands, Inc., produces and sells a full range of kitchen products, including kitchenware, cutlery and cutting boards, bakeware, cookware, glassware, and more. Complainant sells its products through retail outlets, catalogs, and the Internet. Complainant owns two trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the PFALTZGRAFF mark:
Reg. No. 1,334,344 issued May 7, 1985 and
Reg. No. 1,919,285 issued October 15, 2005.
Respondent, Hemang Infrasructure Private Limited, registered the <phaltzgraff.com> domain name on August 22, 2000; the <pfaltzcraft.com> domain name on August 30, 2000; the <pfalzgraft.com> domain name on November 27, 2005; and the <phlatzgraff.com> domain name on December 3, 2005. All of the disputed domain names resolve to websites providing a listing links to third-party websites, some of which compete with Complainant.
Respondent has been the respondent in at least two other UDRP proceedings in which the disputed domain names were transferred to the respective complainants. See Blu Media Inc. v. Hemang Infrasructure Private Ltd., FA 1305977 (Nat. Arb. Forum March 22, 2010); see also Mohegan Tribal Gaming Auth. v. Hemang Infrasructure Private Ltd., FA 1316787 (Nat. Arb. Forum May 21, 2010).
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 two trademark registrations with the USPTO for the PFALTZGRAFF mark: Reg. No. 1,334,344 issued May 7, 1985 and Reg. No. 1,919,285 issued October 15, 2005.
The Panel finds that Complainant’s registration of its PFALTZGRAFF mark with the USPTO satisfies Policy ¶ 4(a)(i) in establishing Complainant’s rights in the mark, regardless of where Respondent lives or operates. See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant alleges that Respondent’s <pfaltzcraft.com>, <pfalzgraft.com>,
<phaltzgraff.com>, and <phlatzgraff.com> domain names
are confusingly similar to Complainant’s PFALTZGRAFF mark because each disputed
domain name merely substitutes letters in Complainant’s mark with different,
and phonetically similar letters, and/or transposes letters in Complainant’s
mark. These alterations correspond with
common mistakes made in the spelling of Complainant’s mark. The disputed domain names also append the
generic top-level domain (“gTLD”) “.com.”
The Panel finds that altering the spelling of Complainant’s mark with
letter substitutions and changing the order of letters fails to create a
distinct domain name that is not confusingly similar to Complainant’s PFALTZGRAFF
mark. See Dow Jones &
Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that
the deliberate introduction of errors or changes, such as the addition of a
fourth “w” or the omission of periods or other such “generic” typos do not change
respondent’s infringement on a core trademark held by the complainant); see also America Online, Inc. v. David,
FA 104980 (Nat. Arb. Forum Apr. 10, 2002) (“The misspelling of a famous mark
does not diminish the confusingly similar nature between the marks and the
disputed domain names.”). The Panel also
finds that the gTLD “.com” has no effect on preventing confusing similarity
under Policy ¶ 4(a)(i). 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). Therefore, the Panel concludes that
Respondent’s <pfaltzcraft.com>,
<pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com>
domain names are confusingly similar to Complainant’s PFALTZGRAFF mark for the
purposes of Policy ¶ 4(a)(i).
The Panel finds
Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain names. After presenting a prima facie case against Respondent that Policy ¶ 4(a)(ii) requires, the burden shifts to Respondent to demonstrate its rights and legitimate interests in the disputed domain names. The Panel infers that Respondent’s failure to respond to the Complaint indicates a lack of rights and legitimate interests in the disputed domain names. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”); 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.”). The Panel elects, however, to consider all the evidence in the record in light of the Policy ¶ 4(c) to determine if Respondent possesses any rights and legitimate interests in the disputed domain name.
Complainant asserts that Respondent is not commonly known by
the <pfaltzcraft.com>,
<pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com>
domain names and is not authorized to use Complainant’s mark. The WHOIS information for the disputed domain
name does not indicate any connection between Respondent and the disputed
domain names, and Respondent provides no additional information indicating that
it is identified by the disputed domain names.
The Panel therefore finds that Respondent is not commonly known by the
disputed domain names and thus lacks rights and legitimate interests pursuant
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 Education
Broad. Corp. v. DomainWorks Inc.,
FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that
the respondent was not commonly known by the <thirteen.com> domain name
based on all evidence in the record, and the respondent did not counter this
argument in its response).
Complainant argues that Respondent does not have rights and legitimate interests in the <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com> domain names because the disputed domain names are used only for the purpose of redirecting Internet users to websites listing various pay-per-click links to third-parties, many of which compete with Complainant’s kitchen and cookware products. The Panel finds that advertising competitors of Complainant and unrelated websites through presumed pay-per-click links is not a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶¶ 4(c)(i) or 4(c)(iii). See 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 argues that Respondent registered common misspellings or typographical errors of Complainant’s PFALTZGRAFF mark in order to take advantage of Internet users who unintentionally make such mistakes when searching for Complainant. The Panel concludes that this intentional registration of variations on Complainant’s mark resulting from mistakes constitutes typosquatting, which correlates with a lack of rights and legitimate interests in the disputed domain names according to Policy ¶ 4(a)(ii). See National 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.”); see also 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”).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Complainant alleges that Respondent’s <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com> domain names advertise Complainant’s competitors in the form of apparent pay-per-click links that redirect Complainant’s intending customers to its competitors’ websites. The Panel finds that appropriating Complainant’s mark and using it to redirect Internet users to the websites of Complainant’s competitors disrupts Complainant’s business and shows bad faith registration and use under 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 argues that Respondent registered the <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com> domain names in order to redirect Internet users to websites featuring a listing of pay-per-click links. As the links on the resolving websites generally relate to Complainant’s business and advertise other companies offering kitchen and cookware products, there is a good likelihood that Internet users will be inclined to click on the links, thereby profiting Respondent through click-through fees. The Panel finds this use of Complainant’s mark to attract Complainant’s customers and then profit from their confusion demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
The Panel has previously concluded that Respondent is
engaged in the practice of typosquatting through its registration of
confusingly similar disputed domain names. The Panel finds that typosquatting is evidence
in itself of bad faith registration and use according to Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat.
Arb. Forum July 15,
2005) (finding that the respondent’s registration and use of the
<nextell.com> domain name was in bad faith because the domain name
epitomized typosquatting in its purest form); see also Microsoft Corp. v. Domain Registration
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 <pfaltzcraft.com>, <pfalzgraft.com>, <phaltzgraff.com>, and <phlatzgraff.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: July 1, 2010
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