L.L. Bean, Inc. v. Birgit Klostermann
Claim
Number: FA0501000410328
Complainant is L.L. Bean, Inc. (“Complainant”), represented
by Kevin R. Haley of Brann and Isaacson,
184 Main Street, PO Box 3070, Lewiston, ME 04243-3070. Respondent is Birgit Klostermann (“Respondent”), P.O. Box No. 71826, KCPO,
Central, 00000, Hong Kong.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <llbeam.com>, registered with Enom, Inc.
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.
Honorable
Paul A. Dorf (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on January
27, 2005; the National Arbitration Forum received a hard copy of the Complaint
on January 31, 2005.
On
January 28, 2005, Enom, Inc. confirmed by e-mail to the National Arbitration
Forum that the domain name <llbeam.com> is registered with Enom,
Inc. and that Respondent is the current registrant of the name. Enom, Inc. has
verified that Respondent is bound by the Enom, Inc. registration agreement and
has thereby agreed to resolve domain-name disputes brought by third parties in
accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the
"Policy").
On
January 31, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of February 21, 2005 by which Respondent could file a Response to
the Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@llbeam.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
March 2, 2005, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the National Arbitration Forum appointed Honorable Paul
A. Dorf (Ret.) 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." 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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <llbeam.com>
domain name is confusingly similar to Complainant’s L.L. BEAN and LLBEAN.COM
marks.
2. Respondent does not have any rights or
legitimate interests in the <llbeam.com> domain name.
3. Respondent registered and used the <llbeam.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant, L.L. Bean, Inc., is a Maine corporation with
its headquarters in Freeport, ME.
Complainant markets and sells premium quality sporting goods and outdoor
products, apparel, general merchandise and a wide variety of goods via retail
outlets, catalogs and its Internet site at the <llbean.com> domain name.
Complainant holds trademark registrations with the United States Patent
and Trademark Office for the L.L. BEAN (Reg. No. 1,482,799 issued March 29,
1988) and LLBEAN.COM (Reg. No. 2,601,262 issued July 30, 2002) marks. Complainant has used its LLBEAN.COM mark in
commerce since 1996 for mail order services and computerized online retail
services and its L.L. BEAN mark since 1912 in association with its retail store
and mail order services.
Respondent registered the <llbeam.com> domain name on
July 29, 2003. Respondent is using the
disputed domain name to divert Internet users to a website that offers a
generic search engine and displays links to various websites, including
websites that compete with Complainant.
The website also displays a link for Complainant’s official website.
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.
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.
Complainant has
asserted in this proceeding that it has rights in the L.L. BEAN and LLBEAN.COM
marks through registration with the United States Patent and Trademark
Office. The Panel finds that
registration of Complainant’s marks is prima facie evidence that
Complainant has rights in those marks pursuant to Policy ¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick,
FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law,
registered marks hold a presumption that they are inherently distinctive and
have acquired secondary meaning.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5,
2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which
creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this
assumption).
The <llbeam.com>
domain name registered by Respondent is confusingly similar to Complainant’s
L.L. BEAN and LLBEAN.COM marks because the domain name incorporates
Complainant’s marks in their entirety, deviating only with the omission of
periods and the substitution of the letter “m” for the letter “n” in
Complainant’s marks. Furthermore, the
addition of the generic top-level domain “.com” to Complainant’s registered
L.L. BEAN mark is irrelevant in determining confusing similarity and does not
distinguish the domain name. See
Toronto-Dominion Bank v. Karpachev,
D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain names
<tdwatergouse.com> and <dwaterhouse.com> are virtually identical to
Complainant’s TD WATERHOUSE name and mark); see also Reuters Ltd. v. Global Net 2000, Inc.,
D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by
only one letter from a trademark has a greater tendency to be confusingly
similar to the trademark where the trademark is highly distinctive); see
also Mrs. World Pageants, Inc. v.
Crown Promotions, FA 94321 (Nat. Arb. Forum Apr. 24, 2000) (finding that
punctuation is not significant in determining the similarity of a domain name
and mark); see also Busy Body,
Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that
"the addition of the generic top-level domain (gTLD) name ‘.com’ is . . .
without legal significance since use of a gTLD is required of domain name
registrants").
Accordingly, the
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant
alleges that Respondent has no rights or legitimate interests in the <llbeam.com>
domain name, containing Complainant’s L.L. BEAN and LLBEAN.COM marks in their
entirety. Once Complainant makes a prima
facie case in support of its allegations, the burden shifts to Respondent
to show that it does have rights to or legitimate interests in the domain
name. Thus, due to Respondent’s failure
to respond to the Complaint, the Panel assumes that Respondent lacks rights and
legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat.
Arb. Forum Oct. 1, 2002) (holding that where Complainant has asserted that
Respondent has no rights or legitimate interests with respect to the domain
name it is incumbent on Respondent to come forward with concrete evidence
rebutting this assertion because this information is “uniquely within the
knowledge and control of the respondent”); see also Do The Hustle,
LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once
Complainant asserts that Respondent has no rights or legitimate interests with
respect to the domain, the burden shifts to Respondent to provide credible
evidence that substantiates its claim of rights and legitimate interests in the
domain name); see also Pavillion
Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000)
(finding that Respondents’ failure to respond can be construed as an admission
that they have no legitimate interest in the domain names).
Furthermore, the
Panel finds that Complainant has made the prima facie showing. Therefore, since Respondent has not
responded to the Complaint, the Panel is entitled to accept all reasonable
allegations and inferences in the Complaint as true. See Bayerische Motoren Werke AG v. Bavarian AG,
FA 110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a
Response the Panel is free to make inferences from the very failure to respond
and assign greater weight to certain circumstances than it might otherwise do);
see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc.,
FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to
respond allows all reasonable inferences of fact in the allegations of the
Complaint to be deemed true).
Respondent is
using the <llbeam.com> domain name to redirect Internet users to a
website that features a generic search engine and links to various goods and
services which are unrelated to or in competition with Complainant. The Panel assumes that Respondent earns
pay-per-click fees for linking users to the featured websites. Respondent’s use of a domain name that is
confusingly similar to Complainant’s popular L.L. BEAN and LLBEAN.COM marks to
divert Internet users interested in Complainant’s products and services to a
commercial website that offers a generic search engine and links to
Complainant’s competitors is not in connection with a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See eBay Inc. v. Sunho Hong,
D2000-1633 (WIPO Jan. 18, 2001) (stating that the "use of complainant’s
entire mark in infringing domain names makes it difficult to infer a legitimate
use"); see also Disney Enters., Inc. v. Dot Stop, FA 145227
(Nat. Arb. Forum Mar. 17, 2003) (finding that Respondent’s diversionary use of
Complainant’s mark to attract Internet users to its own website, which
contained a series of hyperlinks to unrelated websites, was neither a bona fide
offering of goods or services nor a legitimate noncommercial or fair use of the
disputed domain names); see also Black & Decker Corp. v. Clinical
Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that
Respondent’s use of the disputed domain name to redirect Internet users to
commercial websites, unrelated to Complainant and presumably with the purpose
of earning a commission or pay-per-click referral fee did not evidence rights
or legitimate interests in the domain name).
Complainant
asserts that Respondent has no relationship with the <llbeam.com>
domain name and that Complainant has not authorized Respondent to use
Complainant’s well-known L.L. BEAN and LLBEAN.COM marks. Complainant insists that it has had no
connection with Respondent. Since
Respondent has failed to provide any evidence establishing that it is commonly
known by the disputed domain name, the Panel finds that Respondent lacks rights
and legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)(ii). See Gallup Inc. v. Amish Country Store, FA
96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have
rights in a domain name when Respondent is not known by the mark); see also
Compagnie de Saint Gobain v. Com-Union
Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate
interest where Respondent was not commonly known by the mark and never applied for
a license or permission from Complainant to use the trademarked name).
Thus, the Panel
finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is
using the <llbeam.com> domain name to intentionally attempt to attract
Internet users interested in reaching Complainant’s <llbean.com> website
who inadvertently type in the letter “m” instead of the letter “n.” Additionally, Respondent presumably reaps
commercial benefit from these diversions through referral fees from links to
other commercial websites, some of which are in competition with
Complainant. Therefore, the Panel
determines that Respondent’s attempts to divert Internet users for commercial
gain by attracting Internet users to Respondent’s website through a likelihood
of confusion with Complainant’s mark is evidence of bad faith registration and
use pursuant to Policy ¶ 4(b)(iv). See
G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum
Nov. 21, 2002) (finding that Respondent registered and used the domain name in
bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the
confusingly similar domain name to attract Internet users to its commercial
website); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov.
22, 2002) (finding that if Respondent profits from its diversionary use of
Complainant's mark when the domain name resolves to commercial websites and
Respondent fails to contest the Complaint, it may be concluded that Respondent
is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see
also Drs. Foster & Smith, Inc. v.
Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where
Respondent directed Internet users seeking Complainant’s site to its own
website for commercial gain).
Complainant uses
its L.L. BEAN and LLBEAN.COM marks to market and sell a wide variety of goods
and services, including apparel, outerwear, footwear, sporting goods, house
wares, home furnishings, gifts.
Respondent is using the <llbeam.com> domain name to link to
websites that offer competing products.
Thus, the Panel finds that Respondent’s use of a domain name confusingly
similar to Complainant’s registered marks to offer, inter alia, products
and services in direct competition with Complainant is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii).
See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding Respondent acted in bad faith by attracting
Internet users to a website that competes with Complainant’s business); see
also EthnicGrocer.com, Inc. v.
Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation
from Complainant's marks suggests that Respondent, Complainant’s competitor,
registered the names primarily for the purpose of disrupting Complainant's
business).
Furthermore
while each of the four circumstances listed under Policy ¶ 4(b), if proven,
evidences bad faith use and registration of a domain name, this list is not
intended to be exhaustive. The Panel
has chosen to consider additional factors which support its finding of bad
faith registration and use. See Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“the
examples [of bad faith] in Paragraph 4(b) are intended to be illustrative,
rather than exclusive”); see also Twentieth
Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000)
(finding that in determining if a domain name has been registered in bad faith,
the Panel must look at the “totality of circumstances”).
Respondent is
engaging in the practice of “typosquatting” by taking advantage of a common
typographical error made by Internauts intending to reach Complainant’s website
at the <llbean.com> domain name who mistakenly type the letter “m”
instead of the letter “n.” The Panel
determines that Respondent’s use of typosquatting to attract Internet users to
its website is evidence of bad fait registration and use pursuant to Policy ¶
4(a)(iii). See Nat’l Ass’n of
Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003)
(“Typosquatting is the intentional misspelling of words with intent to
intercept and siphon off traffic from its intended destination, by preying on
Internauts who make common typing errors.
Typosquatting is inherently parasitic and of itself evidence of bad
faith”); see also Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat.
Arb. Forum Oct. 15, 2003) (finding that Respondent registered and used the
<zonelarm.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii)
because the name was merely a typosquatted version of Complainant’s ZONEALARM
mark); see also Dermalogica, Inc. v. Domains to Develop, FA
175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the
<dermatalogica.com> domain name was a typosquatted version of
complainant’s DERMALOGICA mark and stating that “[t]yposquatting itself is
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii)”).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <llbeam.com> domain name be TRANSFERRED
from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated:
March 15, 2005
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