national arbitration forum

 

DECISION

 

LF, LLC v. None c/o Ion-Tudor Cinghita

Claim Number: FA1202001430922

 

PARTIES

Complainant is LF, LLC (“Complainant”), represented by J. Mark Wilson of Moore & Van Allen PLLC, North Carolina, USA.  Respondent is None c/o Ion-Tudor Cinghita (“Respondent”), Romania.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <lowescarpet.net>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.

 

Terry F. Peppard as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 23, 2012; the National Arbitration Forum received payment on February 23, 2012.

 

On February 23, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <lowescarpet.net> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name.  GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 February 23, 2012, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of March 14, 2012 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, admin-istrative, and billing contacts, and to postmaster@lowescarpet.net.  Also on February 23, 2012, the 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 March 26, 2012, pursuant to Complainant's request to have the dispute de-cided 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 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

 

Complainant holds registrations, on file with the United States Patent and Trademark Office (“USPTO”), for the LOWE’S service mark, including Reg. No. 1,168,799, registered September 8, 1981.  

 

The <lowescarpet.net> domain name is confusingly similar to the LOWE’S mark.

 

The disputed domain name resolves to a website which, at first glance, appears to be a criticism site, but which features pay-per-click links to third-party sites, some of which compete with the business of Complainant.

 

This use is not a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name.

 

Respondent is not commonly known by the <lowescarpet.net> domain name.

 

Respondent has not been authorized to use Complainant’s LOWE’S mark.

 

Respondent lacks rights to and legitimate interests in the disputed domain name. 

 

The disputed domain name was registered and is being used by Respondent in bad faith

 

B. Respondent

 

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

(1)  the domain name registered by Respondent is confusingly similar to a service mark 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.

 

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."

 

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.

 

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed represent-ations 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 a UDRP 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.”

 

Identical and/or Confusingly Similar

 

Complainant has rights in its LOWE’S service mark under Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO.  See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that a complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO adequate to establish rights in a mark pursuant to Policy ¶ 4(a)(i)).

 

This is true whether or not Complainant’s rights in its mark arise from registration of the mark in a jurisdiction other than that in which Respondent resides or does business.  See, for example, KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter, for purposes of paragraph 4(a)(i) of the Policy, whether a complainant’s mark is registered in a country other than that of a respondent’s place of business).

 

Respondent’s <lowescarpet.net> domain name is confusingly similar to Com-plainant’s LOWE’S service mark pursuant to Policy ¶ 4(a)(i).  The disputed domain name merely omits the apostrophe from Complainant’s mark, while adding the descriptive term “carpet,” which relates to an aspect of Complainant’s business, and the generic top-level domain (“gTLD”) “.net.”  These alterations of the mark, made in forming the contested domain name, do not avoid a finding of confusing similarity under the standards of Policy ¶ 4(a)(i). See 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.

 

Similarly, in creating a domain name from the mark of another, the addition of a term such as “carpet,” which describes a mark holder’s business, does not distinguish the resulting domain name from the mark under Policy ¶ 4(a)(i).  See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where a respondent’s domain name combined a complain-ant’s mark with a generic term that had an obvious relationship to that complain-ant’s business).  The same is true with regard to the affixation of a gTLD to Complainant’s mark in creating the disputed domain name.   See Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Nat. Arb. Forum Sept. 7, 2005):

 

[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.

 

The Panel therefore finds that the disputed <lowescarpet.net> domain name is confusingly similar to Complainant’s LOWE’S service mark for purposes of Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

In order to satisfy Policy ¶ 4(a)(ii), Complainant must make a prima facie case that Respondent lacks rights to and legitimate interests in the disputed domain name.  The burden then shifts to Respondent to show that it does have such rights or interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must first make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii), whereupon the burden shifts to a respondent to show that it does have rights or legitimate interests in that domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):

 

Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.

 

Complainant has made out the requisite prima facie showing under this head of the Policy.  Therefore, and because Respondent has failed to submit a response to the Complaint filed in this proceeding, we are free to conclude that Respond-ent has no rights to or legitimate interests in the contested domain name.  See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both holding that, where a respondent fails to respond to a UDRP Complaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name.  Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.

 

We begin by observing that Complainant alleges that Respondent is not com-monly known by the <lowescarpet.net> domain name within the meaning of Policy ¶ 4(c)(ii), and that Respondent has not been authorized to use Com-plainant’s LOWE’S service mark.  Moreover, the pertinent WHOIS information identifies the domain name registrant only as “None c/o Ion-Tudor Cinghita,” which does not resemble the disputed domain name.  On this record, we conclude that Respondent is not commonly known by the disputed domain name so as to have rights to or legitimate interests in that domain under Policy ¶ 4(c)(ii).  See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name where there was no evidence in the record showing that that respondent was commonly known by that domain name, and where a com-plainant asserted that it did not authorize or license that respondent’s use of its mark in a domain name); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that a respondent failed to establish rights to or legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a com-plainant’s mark and failed to submit evidence that it is commonly known by the disputed domain name).

 

We next note that Complainant asserts, without objection from Respondent, that Respondent’s use of the disputed domain name does not constitute 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), in that the disputed domain name resolves to what at first glance appears to be a criticism site, but which features pay-per-click links to third-party sites, some of which compete with the business of Complain-ant.  We concur in Complainant’s assessment.  Moreover, in the circumstances here presented, we may comfortably presume that Respondent operates the website resolving from the contested domain name for commercial gain.  See, for example, ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because that respondent was using the domain name to operate a website containing links to various commercial websites operating in competition with the business of a complainant mark holder, which was not 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));  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 resolving from a domain name which was confusingly similar to the mark of another 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 thus finds that Complainant has satisfied Policy ¶ 4(a)(ii). 

 

 

Registration and Use in Bad Faith

 

Respondent’s registration and use of the disputed domain name, as alleged in the Complaint, demonstrates attraction of Internet users to Respondent’s resolving website for commercial gain and therefore stands as evidence of bad faith registration and use of the domain name under Policy ¶ 4(b)(iv).  See, for example, Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003):

 

Respondent's … use of the … domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’

 

See also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006):

 

Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees.  Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).

 

For these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).

 

 

DECISION

Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.

 

Accordingly, it is Ordered that the <lowescarpet.net> domain name be forth-withTRANSFERRED from Respondent to Complainant.

 

 

Terry F. Peppard, Panelist

Dated:  April 11, 2012

 

 

 

 

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