LF, LLC v. Wei Lou Chang / DWB Co. Ltd
Claim Number: FA1903001833702
Complainant is LF, LLC (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Wei Lou Chang / DWB Co. Ltd (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lowessurveycom.com>, registered with GoDaddy.com, LLC.
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 12, 2019; the Forum received payment on March 12, 2019.
On March 13, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lowessurveycom.com> 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 March 13, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 2, 2019 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@lowessurveycom.com. Also on March 13, 2019, 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 April 5, 2019, 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 is a well-known, leading home improvement retail outlet in the United States. Complainant has rights in the LOWE’S mark through its trademark registrations with the United States Patent and Trade Office (“USPTO”) (e.g., Reg. No. 1,922,425, registered Sep. 26, 1995). Respondent’s <lowessurveycom.com>[i] domain name is confusingly similar to Complainant’s LOWE’S mark as it incorporates the mark in its entirety (absent the apostrophe), while adding the generic terms “survey” and “com,” and a “.com” generic top-level domain (“gTLD”).
2. Respondent has no rights or legitimate interests in the domain name. Respondent is not authorized to use Complainant’s LOWE’S mark and is not commonly known by the domain name.
3. Furthermore, Respondent does not use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the <lowessurveycom.com> domain name for a fake survey website in furtherance of phishing.
4. Respondent registered and uses the <lowessurveycom.com> domain name in bad faith. Respondent engages in a pattern of bad faith registrations as it has sixteen other domain names which incorporate famous, third party marks. Respondent also attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name by hosting a fake survey website in furtherance of phishing.
5. Finally, Respondent had actual knowledge of Complainant’s rights in the LOWE’S mark prior to registering the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LOWE’S mark. Respondent’s domain name is confusingly similar to Complainant’s LOWE’S mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <lowessurveycom.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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the LOWE’S mark based upon registration with the USPTO (e.g. Reg. No. 1,922,425, registered Sep. 26, 1995). Registration of a mark with the USPTO is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(I). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018). Therefore, Complainant has rights in the LOWE’S mark per Policy ¶ 4(a)(i).
Next, Complainant argues Respondent’s <lowessurveycom.com> domain name is confusingly similar to Complainant’s mark as it wholly incorporates the LOWE’S mark with the addition of the generic terms “survey” and “com”, the gTLD “.com” and the deletion of the non-distinguishing apostrophe. The deletion of an apostrophe, the addition of generic words, and the addition of the gTLD have been found insufficient to withstand a test of confusing similarity pursuant to Policy ¶ 4(a)(i). See Dell Inc. v. chaim grohman, FA 1480340 (Forum Feb. 19, 2013) (finding the <dellcom.net> domain name to be confusingly similar to the DELL mark, holding: “The term “com” is likely construed by consumers as an abbreviation for the word “company” or “computer,” easily associated with Complainant, or is a common typing error for another gTLD [sic], ‘.com.’”); see also Kellogg North America Company v. Richard Harvey / Kellogg Company, FA 1752030 (Forum Nov. 16, 2017) (“The punctuation (an apostrophe) is removed, which must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits apostrophes.”); Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Therefore, the Panel holds that Respondent’s <lowessurveycom.com> is confusingly similar to Complainant’s LOWE’S mark.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <lowessurveycom.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 that Respondent has no rights or legitimate interests in the <lowessurveycom.com> domain name as Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the LOWE’S mark. Where a response is absent, WHOIS information can support a finding that the respondent is not commonly known by a domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may support a finding that the respondent is not commonly known by a domain name per Policy ¶ 4(c)(ii). See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). Complainant provides the WHOIS information indicating Respondent is commonly known as “Wei Lou Chang / DWB Co. Ltd.” See Therefore, Respondent has no rights or legitimate interests in the <lowessurveycom.com> domain name under Policy ¶ 4(c)(ii).
Next, Complainant argues that Respondent does not use the <lowessurveycom.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Complainant has provided evidence Respondent engages in phishing for personal information and Internet users are subjected to spam email messages. Use of a domain name incorporating the mark of another to gather personal information is not be 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 Homer TLC, Inc. v. Wang, FA 1336037 (Forum Aug. 23, 2010) (holding that, where a disputed domain name purports to offer Internet users a gift card as compensation for filling out surveys, the respondent’s use of the disputed domain name amounts to neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Additionally, passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant has shown that Respondent passes off as Complainant by using the LOWE’S mark and by repeatedly displaying the URL for Complainant’s legitimate customer survey site <lowes.com/survey>. Therefore, the Panel holds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent registered and uses the <lowessurveycom.com> domain in bad faith because Respondent has engaged in a pattern of bad faith registrations; such information may be considered when determining bad faith under Policy ¶ 4(b)(ii). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (finding bad faith per Policy ¶ 4(b)(ii) where the complainant provided evidence the respondent owned various domain names infringing on famous third-party marks; and also that the respondent had been ordered to transfer domain names in previous UDRP decisions); see also See Azar Int’l Inc. v. Texas Int’l Prop. Assocs., FA 1122600 (Forum Feb. 18, 2008) (determining that the respondent’s forty-one prior UDRP rulings were evidence of bad faith registration under Policy ¶ 4(b)(ii)). An example of a ruling against Respondent is the case of Target Brands, Inc. v. Wei Lou Chang c/o DWB Co. Ltd., FA1406001566832 (Forum June 29, 2014). Furthermore, the record shows that there are at least 16 other domain names registered to Respondent that incorporate other third-party trademarks with only the addition of generic terms such as “survey” and “feedback”. Therefore, the Panel holds that Respondent registered and uses the <lowessurveycom.com> domain name in bad faith.
Complainant alleges that Respondent’s use of the <lowessurveycom.com> domain name disrupts Complainant’s business and that Respondent commercially benefits from user confusion. Specifically, Complainant has shown that Respondent uses the domain name to pass off as Complainant in furtherance of phishing. Use of a domain name to pass off as Complainant through a survey website and phish for users’ sensitive information is evidence of bad faith under Policy ¶¶ 4(b)(iii) and/or (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also Capital One Financial Corp. v. Mai Erne / Hara Partners, FA1505001617710 (Forum June 12, 2015) (“Here, the Panel agrees that Internet users’ completion of the fields included on the resolving site in question is equivalent to a survey, and conjures a similar presumed reward/payoff in the minds of misled Internet users and therefore is an indication of Policy ¶ 4(b)(iv) bad faith.”). Therefore, the Panel holds that the <lowessurveycom.com> domain name was registered and is being used in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Complainant alleges that the <lowessurveycom.com> domain name’s full incorporation of the LOWE’S mark and reference to the legitimate <lowes.com/survey> shows conclusively that Respondent had actual notice of Complainant’s LOWE’s mark. A respondent’s actual knowledge of a complainant’s rights in a mark can be determined from the domain name and the use made of it per Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Therefore, the Panel holds that Respondent had actual knowledge of Complainants rights in the LOWE’S mark prior to registering the <lowessurveycom.com> domain name and this constitutes bad faith per Policy ¶ 4(a)(iii).
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 <lowessurveycom.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 14, 2019
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