Claim Number: FA0705000992052
PARTIES
Complainant is LF, LLC (“Complainant”), represented by J.
Mark Wilson, of Moore & Van Allen PLLC,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lowesgranite.com>, <lowesvanity.com>,
<lowescountertop.com>, <lowesstone.com> and <lowesbathroom.com>, (“the
disputed domain names”) which are registered with Go Daddy Software, Inc. (“Go
Daddy”).
PANEL
The undersigned, David H Tatham, 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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (“the
Forum”) electronically on May 23, 2007;
the Forum received a hard copy of the Complaint on May 24, 2007.
On May 23, 2007, Go Daddy confirmed by e-mail to the Forum that all
of the disputed domain names, namely <lowesgranite.com>, <lowesvanity.com>,
<lowescountertop.com>, <lowesstone.com> and <lowesbathroom.com>, were
registered with it and that Respondent is
the current registrant of them all. Go Daddy has also verified that Respondent is
bound by its 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 May 25, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding, setting a deadline
of June 14, 2007 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@lowesgranite.com,
postmaster@lowesvanity.com, postmaster@lowescountertop.com,
postmaster@lowesstone.com and postmaster@lowesbathroom.com by e-mail.
A timely Response was received and determined to be complete on June 1, 2007.
On June 6, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the Forum
appointed David H Tatham as Panelist.
RELIEF SOUGHT
Complainant requests that the disputed domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant is the owner of numerous US Federal registrations for LOWE’S,
including the following, in respect of both of which a Section 15 Affidavit has
been filed, so they are both incontestable –
No. 1,168,799 registered as from September 8, 1981 in Class 42 and
claiming 1946 as its date of first use. It
was renewed in 2001.
No. 1,922,425 registered as from September 26, 1995 in Classes 36, 37,
40, 41 and 42 and claiming December 31, 1946 as its date of first use.
Complainant also owns and uses the domain names
<loweshomeimprovement.com> and <lowes.com> at which more than 100
different products are listed.
Complainant contends that its licensees operate one of the largest and
best known networks of home improvement retail stores in the
The home improvement products and services which have been marketed
and/or distributed by Complainant or its predecessors in business,
or through its licensees include granite and stone products, bathroom fixtures,
countertops, vanity units, and related consultation and installation services.
Complainant contends that the disputed domain names are confusingly
similar to its LOWE’S mark; that, by registering them, Respondent is acting in
bad faith; that Respondent is using the disputed domain names for commercial
purposes to divert or redirect Internet users to web pages that feature, among
other things, links to third-party websites that offer goods and services
relating to home improvement products and services; that Respondent has no
pre-existing rights or legitimate interests in respect of the disputed domain
names; and that Respondent’s actions fall squarely within the activity which
the Policy is intended to remedy.
B. Respondent
Respondent states, in a very short Response, that it does not want to
pursue the dispute and that it is willing to cooperate in the transfer of all
the disputed domain names in accordance with Complainant’s request.
FINDINGS
Complainant is the owner of the service mark
LOWE’S under which it operates a substantial business, consisting of a network
of home improvement retail stores throughout the
Respondent has stated that it is willing for
the disputed domain names to be transferred to Complainant.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Respondent does not contest any of Complainant’s allegations regarding the disputed domain names, and indeed has indicated that it will consent to a judgment in favour of Complainant for the transfer of all of the disputed domain names. In similar circumstances, Panels in several earlier Decisions have foregone the traditional UDRP analysis and ordered the immediate transfer of the domain names, namely Boehringer Ingelheim International GmbH v. Modern Ltd. – Cayman Web Development, FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the Respondent stipulated to the transfer); Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Arb. Forum Jan. 13, 2004) in which it was said: “In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”; and Disney Enterprises, Inc. v. Elmer Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) in which it was said: “[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”
In this case, the Panel sees no
reason why it should depart from the course adopted in all three of the above
Decisions, or why it should deny the requests of both Complainant and
Respondent.
DECISION
Having established that Complainant’s request for a transfer of all of
the disputed domain names is not contested by Respondent, the Panel concludes
that relief shall be GRANTED.
Accordingly, it is Ordered that the <lowesgranite.com>, <lowesvanity.com>,
<lowescountertop.com>, <lowesstone.com> and <lowesbathroom.com>
domain names be TRANSFERRED from Respondent to Complainant.
David H Tatham, Panelist
Dated: June 12, 2007
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