La-Z-Boy Incorporated and La-Z-Boy Casegoods, Inc. v. Ronald Miller
Claim Number: FA1505001617604
Complainant is La-Z-Boy Incorporated and La-Z-Boy Casegoods, Inc. (“Complainant”), represented by Elizabeth Brock of Harness, Dickey & Pierce PLC, Michigan, USA. Respondent is Ronald Miller (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hammary.net> ('the Domain Name') , registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 1, 2015; the Forum received payment on May 1, 2015.
On May 5, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <hammary.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 May 12, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 2015 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@hammary.net. Also on May 12, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On 4 June, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
The Complainant's submissions can be summarized as follows:
La-Z-Boy Incorporated is a world famous maker of furniture. It owns a trade mark registration in the US for the HAMMARY mark for use in connection with furniture. Through its wholly owned subsidiary LA-Z-Boy Casegoods Inc. it also own Hammary Furniture Company which sells HAMMARY brand furniture. It maintains a website at www.hammary.com. It has been in use since 1943.
The Domain Name is identical and/or confusingly similar to the HAMMARY mark and the Complainant's web site address. Panels have found that the addition of a top level domain does nothing to distinguish the disputed domain name from the registered mark.
Respondent has made no legitimate use of the Domain Name The Respondent is using the e mail address to hold itself out as the Complainant and host e mail addresses that purport to offer employment opportunities with Complainant. The Complainant became aware of the activities when Internet users contacted them believing that they had been hired by the Complainant. The Respondent had sent such users an employment contract, tax form, job description and interview questionnaire using the e mail addresses 'miller@hammery.net' and 'fletcher@hammary.com'. These documents fraudulently displayed the HAMMARY mark and logo and identified the Respondent as an employment supervisor and HR manager of Complainant. Respondent used a domain name to host e mail addresses used to obtain personal information including home address and bank details from Internet users, a practice known as phishing.
Respondent has never traded as 'Hammary'. The Respondent registered the Domain Name using a privacy service to hide its identity and contact information.
Complainant has no connection or affiliation with the Respondent nor has the Complainant granted the Respondent a licence or consent to use the HAMMARY name.
The Respondent has no rights or legitimate interest in the Domain Name.
The Domain Name was registered in 2015. Use for phishing to obtain personal information from Internet Users is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Complainants
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The National Arbitration Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.” However, since La-Z-Boy Incorporated has sufficient rights to bring this case on its own account there is no need to consider this issue further and the Panelist will treat La-Z-Boy Incorporated as the lead Complainant.
Complainant owns a trade mark registration in the US for the HAMMARY mark for use in connection with furniture. It maintains a website at www.hammary.com. The trade mark registration records first use in commerce as 1943.
The Domain Name was registered in 2015 and has been used in relation to a phishing scam.
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:
(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.
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.”).
The Domain Name consists of the Complainant’s HAMMARY mark registered in the USA and the gTLD .net. See Isleworth Land co v Lost in Space SA, FA 117330 (Nat. Arb. Forum Sept 27, 2002) ('It is a well-established policy that generic top level domains are typically disregarded when conducting a Policy 4(a) (i) analysis. As such the Domain Name is identical to a trade mark in which the Complainant has rights for the purpose of the Policy.
The Respondent has not filed a Response, does not appear to have any trade marks associated with the name HAMMARY. There is no evidence that it is commonly known by this name and it does not have any consent from the Complainant to use this name. It does not appear to have used the Domain Name for any bona fide offering of services of its own. In fact, on the evidence the Complainant has successfully shown that the Respondent has sought to pass itself off as the Complainant in order to gather information by means of a misleading e mail offering employment. See Juno Online Servs, Inc. v Nelson, FA 241972 (Nat Arb Forum Mar. 29 2004) (finding that using a domain name in a fraudulent scheme to deceive internet users into providing their financial details and personal information is not a bona fide offering of goods and services nor a legitimate non-commercial or fair use). . The act of 'phishing', as such practices are known, does not constitute bona fide use Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name.
Paragraph 4 (b) of the Policy sets out non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including circumstances where, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on‑line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location. Reviewing the evidence that the Respondent sent e mails using the Domain Name to Internet users fraudulently pretending to be the Complainant and offering specious employment positions, the panelist finds that the Respondent has attempted to cause confusion amongst Internet users between the Complainant’s mark and its Domain Name for commercial gain. Past panels have held that phishing for information for financial information through a disputed domain name indicates bad faith. See Wells Fargo& Co. v Maniac State, FA 608239 (Nat Arb Forum) Jan 19 2006) (finding bad faith registration and use where the respondent was using the wellsbankupdate.com domain name in order to act fraudulently to acquire financial information of customers.) As such the Panelist finds that the Complainant has made out its case under para 4 (b) (iv) of the Policy.
Accordingly, the Panel finds that the Domain Name has been registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hammary.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 11, 2015
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