La-Z-Boy Chair Company v. CSRUS Enterprises
Claim Number: FA1103001377835
Complainant is La-Z-Boy Chair Company (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is CSRUS Enterprises (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lazy-boy.com>, registered with Power Brand Center Corp.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 14, 2011; the National Arbitration Forum received payment on March 17, 2011.
On March 15, 2011, Power Brand Center Corp. confirmed by e-mail to the National Arbitration Forum that the <lazy-boy.com> domain name is registered with Power Brand Center Corp. and that Respondent is the current registrant of the name. Power Brand Center Corp. has verified that Respondent is bound by the Power Brand Center Corp. registration agreement 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 March 18, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 7, 2011 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@lazy-boy.com. Also on March 18, 2011, 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 April 12, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 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 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 <lazy-boy.com> domain name is confusingly similar to Complainant’s LA-Z-BOY mark.
2. Respondent does not have any rights or legitimate interests in the <lazy-boy.com> domain name.
3. Respondent registered and used the <lazy-boy.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, La-Z-Boy Chair Company, creates, manufactures, distributes, and sells upholstered furnishings, including recliners, sofas, stationary chairs, sleeper sofas, and other types of furniture. Complainant owns multiple trademark registrations for the LA-Z-BOY mark with the United States Patent and Trademark Office (“USPTO”):
Reg. No. 599,684 issued December 21, 1954;
Reg. No. 1,532,017 issued March 28, 1989;
Reg. No. 1,662,504 issued October 29, 1991; and
Reg. No. 1,943,118 issued December 19, 1995.
Respondent, CSRUS Enterprises, registered the <lazy-boy.com> domain name on June 5, 2002. The disputed domain name resolves to a pay-per-click link directory advertising third-party providers of competing furniture products.
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 for the LA-Z-BOY mark with the USPTO. The Panel finds that these USPTO trademark registrations prove Complainant’s rights in the LA-Z-BOY mark for the purposes of Policy ¶ 4(a)(i), even though Respondent lives or operates outside the U.S. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); 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 <lazy-boy.com> domain name is confusingly similar to Complainant’s LA-Z-BOY mark because the disputed domain name only deletes the first hyphen, adds the letter “y,” and appends the generic top-level domain (“gTLD”) “.com.” The Panel finds that adding a single letter does not change the disputed domain name sufficiently to avoid a finding of confusing similarity. See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i).); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”). The Panel also concludes that deleting a hyphen and adding a gTLD does not alleviate confusing similarity. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy); see also Nat’l Cable Satellite Corp. v. Black Sun Surf Co., FA 94738 (Nat. Arb. Forum June 19, 2000) (holding that the domain name <cspan.net>, which omitted the hyphen from the trademark spelling, C-SPAN, is confusingly similar to the complainant's mark). The Panel thus determines that Respondent’s <lazy-boy.com> domain name is confusingly similar to Complainant’s LA-Z-BOY mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
In determining when to shift the burden to show rights and legitimate interests to Respondent, Policy ¶ 4(a)(ii) requires that Complainant first put forth a prima facie case against Respondent. As Complainant has satisfied this obligation in the instant proceeding, the obligation now transfers to Respondent. In defaulting, however, Respondent has not indicated or shown any rights and legitimate interests in the disputed domain name and thus the Panel concludes that Respondent has none. The Panel may also, due to Respondent’s silence, take all of Complainant’s allegations as true. See 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.”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondent’s failure to respond can be construed as an admission that they have no legitimate interest in the domain names). The Panel will nevertheless consider the full record according to the Policy ¶ 4(c) factors, however, to make an independent determination on Respondent’s rights and legitimate interests.
Complainant contends that Respondent does not operate a business under Complainant’s mark and does not own any trademarks relating to the <lazy-boy.com> domain name. The WHOIS information for the disputed domain name indicates that the registrant is “CSRUS Enterprises,” a name which is not facially associated with the disputed domain name. The Panel accordingly determines that Respondent is not commonly known by the disputed domain name and thus lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Educ. 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 asserts that Respondent uses the <lazy-boy.com> domain name to host a website advertising pay-per-click links to websites that offer furniture products in competition with Complainant. The Panel finds that using Complainant’s mark in a domain name pathway that diverts to other competing businesses is not a bona fide offering of goods and services according to Policy ¶ 4(c)(i) and not a legitimate noncommercial or fair use pursuant to Policy ¶ 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); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent’s <lazy-boy.com> domain name is essentially a misspelling of Complainant’s mark as it only deletes a hyphen and adds the additional letter “y.” The Panel finds that intentionally using a misspelling of Complainant’s mark as the disputed domain name to allure and mislead Complainant’s customers is typosquatting, which evidences Respondent’s lack of rights and legitimate interests in the <lazy-boy.com> domain name pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); 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 the pay-per-click links featured on Respondent’s website resolving from the <lazy-boy.com> domain name redirect Complainant’s intending customers to other third-party websites selling furniture products in competition with Complainant. The Panel finds that Respondent’s use of the <lazy-boy.com> domain name disrupts Complainant’s business and is bad faith registration and use pursuant to Policy ¶ 4(b)(iii). The Panel agrees. See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant argues that Respondent’s intention in registering and using the <lazy-boy.com> was to earn click-through fees by attracting Internet users to the pay-per-click directory website. Complainant alleges that the use of Complainant’s mark in the disputed domain name was an effort to create a likelihood of confusion as to the source or affiliation of Respondent’s websites, supportting Respondent’s goal of earning a profit by diverting Complainant’s customers. The Panel finds that this behavior demonstrates bad faith registration and use according to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was offered services similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Asbury Auto. Group, Inc. v. Tex. Int’l Prop. Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent’s use of the disputed domain name to advertise car dealerships that competed with the complainant’s business would likely lead to confusion among Internet users as to the sponsorship or affiliation of those competing dealerships, and was therefore evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
The Panel has previously concluded that Respondent is engaged in typosquatting through the use of the confusingly similar <lazy-boy.com> domain name. The Panel finds that Respondent’s typosquatting is evidence of bad faith registration and use under 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 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 <lazy-boy.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 21, 2011
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