LF, LLC v. Investment Services Corp c/o William Piontek
Claim Number: FA0509000566653
Complainant is LF, LLC (“Complainant”), represented by Henry B. Ward, of Alston & Bird, LLP, Bank of America Plaza, 101 S. Tryon Street, Suite 4000, Charlotte, NC 28280-4000. Respondent is Investment Services Corp c/o William Piontek (“Respondent”), 830 East Morningside Drive, Atlanta GA 30324.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at
issue is <lowesdiscount.com>, <lowesdiscountstores.com>,
<lowsstores.com>, <lowstores.com>, <lowdiscoountstores.com>, <loewsdiscountstores.com>, <loewsdiscount.com> and <lowestores.com>, registered with Enom, Inc.
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.
Hon. Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 21, 2005; the National Arbitration Forum received a hard copy of the Complaint on September 23, 2005.
On September 22,
2005, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the
<lowesdiscount.com>, <lowesdiscountstores.com>,
<lowsstores.com>, <lowstores.com>, <lowdiscoountstores.com>, <loewsdiscountstores.com>, < loewsdiscount.com> and <lowestores.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the name(s). 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 September 30, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 20, 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@lowesdiscount.com; postmaster@lowesdiscountstores.com; postmaster@ lowsstores.com; postmaster@lowstores.com; postmaster@lowdiscoountstores.com; postmaster@loewsdiscountstores.com; postmaster@loewsdiscount.com; and postmaster@lowestores.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 27, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Ralph Yachnin 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lowesdiscount.com>, <lowesdiscountstores.com>,
<lowsstores.com>, <lowstores.com>, <lowdiscoountstores.com>, <loewsdiscountstores.com>, <loewsdiscount.com> and <lowestores.com> domain names are confusingly similar to Complainant’s LOWE’S mark.
2. Respondent does not have any rights or legitimate interests in the <lowesdiscount.com>, <lowesdiscountstores.com>, <lowsstores.com>, <lowstores.com>, <lowdiscoountstores.com>, <loewsdiscountstores.com>, <loewsdiscount.com> and <lowestores.com> domain names.
3. Respondent registered and used the <lowesdiscount.com>, <lowesdiscountstores.com>, <lowsstores.com>, <lowstores.com>, <lowdiscoountstores.com>, <loewsdiscountstores.com>, <loewsdiscount.com> and <lowestores.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LF, LLC is the owner of the LOWE’S mark for use in conjunction with the marketing and distribution of home improvement products and services. Complainant’s licensees operate one of the largest and best-known networks of home improvement retail stores in the United States, which, include over 1,100 stores in forty-nine states, employing over 160,000 employees.
Complainant owns numerous trademark registrations for its LOWE’S mark. Complainant has registered the LOWE’S mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,168,799 issued September 8, 1981).
Respondent registered the disputed domain names between March 14, 2003 and August 30, 2005. Respondent is using the disputed domain names resolve to websites featuring links to third-party commercial websites that directly compete with Complainant’s business.
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. 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.”).
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 established rights
in the LOWE’S mark through registration with the USPTO. See
Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal
trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004)
(“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's
rights in the mark.”).
Additionally, Respondent’s <lowesdiscount.com>, <lowesdiscountstores.com>, <lowsstores.com>, <lowstores.com>, <lowdiscoountstores.com>, <loewsdiscountstores.com>, <loewsdiscount.com> and <lowestores.com> domain names are confusingly similar to Complainant’s mark, as the domain names incorporate Complainant’s LOWE’S mark, and deviate with the addition of numerous generic terms and misspelled variations of Complainant’s mark. Such changes are not enough to overcome a finding of confusing similarity pursuant to Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Guinness UDV N. Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar to the complainant’s SMIRNOFF mark because merely removing the letter “f” from the mark was insignificant)..
Furthermore, the addition of the top-level domain “.com” is irrelevant in determining whether the <lowesdiscount.com>, <lowesdiscountstores.com>, <lowsstores.com>, <lowstores.com>, <lowdiscoountstores.com>, <loewsdiscountstores.com>, <loewsdiscount.com> and <lowestores.com> domain names are confusingly similar to Complainant’s mark. See Blue Sky Software Corp. v. Digital Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to the complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference"); 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").
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent does not have rights or legitimate interests in the disputed domain names. When a complainant establishes a prima facie case pursuant to Policy ¶ 4(a)(ii), the burden shifts to the respondent to prove that it has rights or legitimate interests. Due to Respondent’s failure to respond to the Complaint, the Panel infers that Respondent does not have rights or legitimate interests in the disputed domain names. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once the complainant asserts that the respondent does not have rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide credible evidence that substantiates its claim of rights or legitimate interests in the domain name); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such rights or legitimate interests do exist); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).
Respondent is not commonly known by the disputed domain names. Thus, the Panel concludes that Respondent has not established rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See 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); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that the respondent has no rights or legitimate interests in domain names because it is not commonly known by the complainant’s marks and the respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).
Moreover, Complainant also avers
that Respondent lacks rights and legitimate interests in the disputed domain names
because Respondent’s misspellings of Complainant’s TRUE VALUE mark constitute
typosquatting. Thus, the Panel finds
that Respondent’s use of the disputed domain names constitute typosquatting,
which is evidence that Respondent lacks rights and legitimate interests
pursuant to Policy ¶ 4(a)(ii) . See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14,
2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that
the respondent lacked rights and legitimate interests in the disputed
domain names because it “engaged in the practice of typosquatting
by taking advantage of Internet users who attempt to access Complainant's
<indymac.com> website but mistakenly misspell Complainant's mark by
typing the letter ‘x’ instead of the letter ‘c’”).
Furthermore, Respondent is using
the disputed domain names to redirect consumers to third-party
commercial websites that feature goods and services that compete with
Complainant. The Panel finds that
Respondent’s use of domain names that are confusingly similar to Complainant’s
mark to divert Internet users to Respondent’s website for Respondent’s own
commercial gain does not constitute 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
Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's
demonstrated intent to divert Internet users seeking Complainant's website to a
website of Respondent and for Respondent's benefit is not a bona fide offering
of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000)
(finding no rights or legitimate interests in the famous MSNBC mark where the
respondent attempted to profit using the complainant’s mark by redirecting
Internet traffic to its own website).
The
Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel infers that Respondent receives click-through fees for diverting Internet users to its own commercial website. Respondent registered and used the disputed domain names in bad faith under Policy ¶ 4(b)(iv), as Respondent is using the disputed domain names to intentionally attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant as to the source, sponsorship, affiliation or endorsement of its website. See H-D Michigan, Inc. v. Petersons Auto, FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
Complainant contends that
Respondent has registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(i) because
Respondent offered to sell the disputed domain name registrations to
Complainant. The Panel accepts
Complainant’s assertion that Respondent offered the disputed domain names for
sale at a price of $15,000. Thus, the
Panel finds that Respondent’s offer to sell the domain name registration for an
amount far in excess of Respondent’s out-of-pocket costs is evidence of bad
faith registration and use pursuant to Policy ¶ 4(b)(i). See Campmor,
Inc. v. GearPro.com, FA 197972 (Nat. Arb.
Forum Nov. 5, 2003) (“Respondent registered the disputed domain name and
offered to sell it to Complainant for $10,600.
This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i).”);
see also Tech. Props., Inc
v. Hussain, FA 95411 (Nat. Arb. Forum Sept. 14, 2000) (finding bad faith
where the respondent verbally offered the domain names for sale for $2,000).
Moreover, Complainant contends that
Respondent registered and used the disputed domain name in bad faith because
Respondent’s domain names are merely a typosquatted variation of Complainant’s
TRUE VALUE mark. The Panel finds that
Respondent’s registration and use of the typosquatted domain names constitute
bad faith registration pursuant to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s
registration and use of [the <zonelarm.com> domain name] that capitalizes
on the typographical error of an Internet user is considered typosquatting.
Typosquatting, itself is evidence of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).”); see also 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 Black & Decker
Corp. v. Khan, FA 137223
(Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name
was registered to “ensnare those individuals who forget to type the period
after the ‘www’ portion of [a] web-address,” which was evidence that the domain
name was registered and used in bad faith).
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 <lowesdiscount.com>, <lowesdiscountstores.com>, <lowsstores.com>, <lowstores.com>, <lowdiscoountstores.com>, <loewsdiscountstores.com>¸<loewsdiscount.com> and <lowestores.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: November 8, 2005
National Arbitration Forum
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