national arbitration forum

 

DECISION

 

LF, LLC v. Milan Kovac

Claim Number: FA1111001414116

 

PARTIES

Complainant is LF, LLC (“Complainant”), represented by J. Mark Wilson of Moore & Van Allen PLLC, North Carolina, USA.  Respondent is Milan Kovac (“Respondent”), Slovakia.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <lowescreditcardlogin.com> and <lowesmobile.com>, registered with HEBEI GUOJI MAOYI (SHANGHAI) LTD d/b/a HEBEIDOMAINS.COM.

 

PANEL

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.

 

James A. Carmody, Esq., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on November 3, 2011; the National Arbitration Forum received payment on November 3, 2011.  The Complaint was received in both English and Slovak.

 

On November 8, 2011, HEBEI GUOJI MAOYI (SHANGHAI) LTD d/b/a HEBEIDOMAINS.COM confirmed by e-mail to the National Arbitration Forum that the <lowescreditcardlogin.com> and <lowesmobile.com> domain names are registered with HEBEI GUOJI MAOYI (SHANGHAI) LTD d/b/a HEBEIDOMAINS.COM and that Respondent is the current registrant of the names.  HEBEI GUOJI MAOYI (SHANGHAI) LTD d/b/a HEBEIDOMAINS.COM has verified that Respondent is bound by the HEBEI GUOJI MAOYI (SHANGHAI) LTD d/b/a HEBEIDOMAINS.COM 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 November 8, 2011, the Forum served the Slovak language Complaint and all Annexes, including a Slovak language Written Notice of the Complaint, setting a deadline of November 28, 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@lowescreditcardlogin.com and postmaster@lowesmobile.com.  Also on November 8, 2011, the Slovak language Written Notice of the Complaint, notifying Respondent of the e-mail 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 December 5, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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.

 

Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Slovak language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.    Respondent’s <lowescreditcardlogin.com> and <lowesmobile.com> domain names are confusingly similar to Complainant’s LOWE’S mark.

 

2.    Respondent does not have any rights or legitimate interests in the <lowescreditcardlogin.com> and <lowesmobile.com> domain names.

 

3.    Respondent registered and used the <lowescreditcardlogin.com> and <lowesmobile.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, LF, LLC, is the owner of the LOWE’S mark that it uses in conjunction with the marketing and distribution of home improvement products and services.  Further, Complainant licenses the LOWE’S mark to its licensee that operates one of the largest home improvement retail stores in the United States.  Complainant owns trademark registrations with the United States Patent and Trademark Office ("USPTO") for the LOWE’S mark (e.g., Reg. No. 1,168,799 registered September 8, 1981).

 

Respondent, Milan Kovac, registered the <lowescreditcardlogin.com> and <lowesmobile.com> domain names on November 22, 2010 and October 13, 2010, respectively.  Respondent’s domain names resolve to websites featuring search engines and third-party links to various competing and unrelated companies.  

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

Complainant owns several trademark registrations with the United States Patent and Trademark Office ("USPTO") for the LOWE’S mark (e.g., Reg. No. 1,168,799 registered September 8, 1981).  The Panel finds that such registrations, even being in a different country than Respondent, are sufficient to establish Complainant’s rights in its mark under Policy ¶ 4(a)(i).  See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).

 

Complainant argues that Respondent’s <lowescreditcardlogin.com> and <lowesmobile.com> domain names are confusingly similar to Complainant’s LOWE’S mark.  Complainant notes that the domain names remove the apostrophe from its mark while also adding the generic top-level domain (“gTLD”) “.com.”  Further, the domain names contain the additional words and generic terms “credit,” “card,” “login,” or “mobile.”  The Panel agrees with Complainant and finds that the disputed domain names are confusingly similar to Complainant’s LOWE’S mark under Policy ¶ 4(a)(i).  See LOreal USA Creative Inc v. Syncopate.com – Smart Names for Startups, FA 203944 (Nat. Arb. Forum Dec. 8, 2003) (finding that the omission of an apostrophe did not significantly distinguish the domain name from the 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); see also Am. Online, Inc. v. Anytime Online Traffic Sch., FA 146930 (Nat. Arb. Forum Apr. 11, 2003) (finding that the respondent’s domain names, which incorporated the complainant’s entire mark and merely added the descriptive terms “traffic school,” “defensive driving,” and “driver improvement” did not add any distinctive features capable of overcoming a claim of confusing similarity). 

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant has alleged Respondent does not have rights or legitimate interests in the <lowescreditcardlogin.com> and <lowesmobile.com> domain names.  Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  The Panel finds Complainant has made a sufficient prima facie case.  Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names.  See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).  However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the <lowescreditcardlogin.com> and <lowesmobile.com> domain names under Policy ¶ 4(c).

 

Complainant argues that under Policy ¶ 4(c)(ii), Respondent is not commonly known by the “subject domain names.”  Complainant notes that the domain names’ registrant is identified as “Milan Kovac,” per the WHOIS information for both domain names.  Complainant contends that this information verifies that Respondent is not commonly known by the disputed domain name.  Respondent has not responded to this Complaint.  The Panel finds that Respondent is not commonly known by the <lowescreditcardlogin.com> and <lowesmobile.com> domain names under Policy ¶ 4(c)(ii).  See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a 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).

 

Further, Complainant argues that Respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain names.  Respondent’s domain names both resolve to websites that feature a search feature and various third-party links.  Such links are for both competing and unrelated business entities.  The Panel finds, after review of the evidence on record, that Respondent is not using the disputed domain names for 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 Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also 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)).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent’s <lowesmobile.com> domain name features many third-party links to other websites.  Some of these websites include Complainant’s chief competitors in the home improvement product industry, such as the Home Depot.  The Panel finds that this use of the <lowesmobile.com> domain name disrupts Complainant’s business and is evidence of 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)).

 

Further, Complainant contends that both of the domain names are designed to create confusion between Complainant’s mark and the domain names in order for Respondent to profit from its use of pay-per-click links.  Complainant argues that such use of the confusingly similar domain names is evidence of bad faith.  In this instance, it appears that Respondent is attempting to profit through its use of Complainant’s mark in the domain name.  Without the benefit of an explanation from Respondent, the Panel finds that Respondent registered and is using the domain names in bad faith pursuant to Policy ¶ 4(b)(iv).  See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also 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)). 

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <lowescreditcardlogin.com> and <lowesmobile.com> domain names be TRANSFERRED from Respondent to Complainant.

 

James A. Carmody, Esq., Panelist

Dated:  December 7, 2011

 

 

 

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