Lear Corporation v. Robin Mark / s1lver group
Claim Number: FA1703001724915
Complainant is Lear Corporation (“Complainant”), represented by Hope V. Shovein of Brooks Kushman P.C., Michigan, USA. Respondent is Robin Mark / s1lver group (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <llear.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 Forum electronically on March 31, 2017; the Forum received payment on March 31, 2017.
On April 4, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <llear.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.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 April 4, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 24, 2017 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@llear.com. Also on April 4, 2017, 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 May 2, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, Lear Corporation, is a major manufacturer and distributor of automotive seating and electrical distribution systems based in Southfield, Michigan, USA. In connection with this business, Complainant uses the LEAR and L LEAR marks to promote its goods and services.
2. Complainant has rights in the LEAR and L LEAR marks per their registration with the United States Patent and Trademark Office (“USPTO”) (e.g., LEAR—Reg. No. 2,557,962, registered Apr. 9, 2002; L LEAR—Reg. No. 2,060,085, registered Jan. 14, 1997). Respondent’s domain name, <llear.com>,[1] is confusingly similar to Complainant’s marks as it contains Complainant’s L LEAR mark, less the space, with the addition of the generic top level domain (“gTLD”) “.com.”
3. Respondent lacks rights and legitimate interests in the <llear.com> domain name. Respondent has not been commonly known by the domain name.
4. Further, Respondent is not affiliated with Complainant nor has Respondent used <llear.com> in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Respondent has used the domain name to pass off as Complainant and “phish” for information from Complainant’s customers to defraud Complainant via email.
5. Respondent registered and has used <llear.com> in bad faith. Respondent has used the domain name to engage in a phishing scam targeted at Complainant and Complainant’s business partners for Respondent’s commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the L LEAR mark. Respondent’s domain name is confusingly similar to Complainant’s L LEAR mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <llear.com> domain name and that Respondent registered and uses the domain name in bad faith.
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(f), 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 (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.”).
Complainant has rights in the LEAR and L LEAR marks through their registration with the USPTO (e.g., LEAR—Reg. No. 2,557,962, registered Apr. 9, 2002; L LEAR—Reg. No. 2,060,085, registered Jan. 14, 1997). Registration with the USPTO is sufficient to establish rights in a mark. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (“There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark.”). The Panel finds Complainant has rights in the LEAR and L LEAR marks due to their registration with the USPTO pursuant to Policy ¶ 4(a)(i).
Complainant argues Respondent’s domain name, <llear.com>, is confusingly similar to Complainant’s marks as it contains Complainant’s L LEAR mark, less the space, with the addition of the gTLD “.com.” The removal of a space from a complainant’s mark, as well as the addition of a gTLD, does not sufficiently differentiate the mark from the domain created with it. See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”). The Panel therefore finds that <llear.com> is confusingly similar to Complainant’s L LEAR mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <llear.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues Respondent lacks rights and legitimate interests in <llear.com> as the Respondent is not been commonly known by the domain name. Where a response is lacking, WHOIS information can support a finding that a respondent has not been commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum Jul. 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record names “robin mark” as the registrant of <llear.com>. The Panel therefore finds Respondent is not commonly known by <llear.com> per Policy ¶ 4(c)(ii).
Next, Complainant contends Respondent has failed to use <llear.com> in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Instead, Respondent has used the domain name to “phish” for information from Complainant’s customers to defraud Complainant via email. Use of a domain name to pass off as a holder of trademark rights for the purpose of phishing and subsequent financial gain is not a use that qualified under Policy ¶¶ 4(c)(i) & (iii). See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses.”). The Panel agrees that Respondent’s conduct constitutes passing off, and that Respondent has failed to use <llear.com> in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) & (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues Respondent registered and used <llear.com> in bad faith as Respondent used the domain name to engage in a phishing scam for Respondent’s gain. The use of a complainant’s trademark to deceive a complainant’s customers into turning over sensitive information is behavior supporting a finding of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <llear.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson Panelist
Dated: May 9, 2017
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