Lands’ End Direct Merchants, Inc. v. Sonya L Lopez
Claim Number: FA1004001319866
Complainant is Lands’
End Direct Merchants, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <landsned.com>, registered with Dynadot, Llc.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2010.
On April 19, 2010, Dynadot, Llc confirmed by e-mail to the National Arbitration Forum that the <landsned.com> domain name is registered with Dynadot, Llc and that Respondent is the current registrant of the name. Dynadot, Llc has verified that Respondent is bound by the Dynadot, Llc 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 April 20, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 10, 2010 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@landsned.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 18, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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 <landsned.com> domain name is confusingly similar to Complainant’s LANDS’ END mark.
2. Respondent does not have any rights or legitimate interests in the <landsned.com> domain name.
3. Respondent registered and used the <landsned.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Land’s End Direct Merchants, Inc., began operation in 1963 and markets and sells luggage, home goods, clothing, outerwear apparel, footwear, and accessories through its catalogs, stores, and online at its website, <landsend.com>. Complainant operates its catalog, stores, and website under its LANDS’ END mark. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office ("USPTO") for its LANDS’ END mark (e.g., Reg. No. 1,263,612 issued January 1, 1984).
Respondent, Sonya L Lopez, registered the <landsned.com> domain name on July 28, 2008. The disputed domain name resolves to a website that features a list of third-party hyperlinks, some of which resolve to Complainant’s competitors in Complainant’s catalog, store, and online 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 holds multiple trademark registrations with the ("USPTO") for its LANDS’ END mark (e.g., Reg. No. 1,263,612 issued January 1, 1984). Previous panels have held that a trademark registration with a federal trademark authority is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Thus, the Panel determines that Complainant has established rights in its LANDS’ END mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <landsned.com>
domain name is confusingly similar to Complainant’s LANDS’ END mark. Respondent includes a common misspelling of
Complainant’s mark, the transposition of the letters “e” and “n,” in
Respondent’s disputed domain name.
Moreover, the disputed domain name removes the space separating the
terms of Complainant’s mark and also removes the apostrophe from the LANDS’ END
mark. The disputed domain name further
adds the generic top-level domain (“gTLD”) “.com” to Complainant’s mark. The Panel finds the inclusion of a common misspelling
of Complainant’s mark coupled with the addition of a gTLD and the removal of
spaces and an apostrophe fails to adequately distinguish the disputed domain
name from Complainant’s mark. See Google Inc. v. Jon G.,
FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to
be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he
transposition of two letters does not create a distinct mark capable of
overcoming a claim of confusing similarity, as the result reflects a very
probable typographical error”); see also Am.
Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec.
31, 2007) (finding that “spaces are impermissible and a generic top-level
domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain
names. Therefore, the panel finds that
the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the
complainant’s [AMERICAN GENERAL] mark.”); see
also LOreal USA Creative Inc v. Syncopate.com – Smart Names for Startups,
FA 203944 (Nat. Arb. Forum Dec. 8, 2003) (finding that the omission of an
apostrophe did not significantly distinguish the domain name from the mark); see also Jerry Damson, Inc. v.
The Panel finds Complainant has satisfied the requirements of Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <landsned.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <landsned.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Complainant contends that Respondent is not commonly known by the <landsned.com> domain name. The WHOIS information identifies the domain name registrant as “Sonya L Lopez,” which the Panel finds is not similar to the disputed domain name. Complainant claims that Respondent is not licensed or permitted to use Complainant’s LANDS’ END mark. Respondent has failed to present any evidence that would allow the Panel to find that Respondent is commonly known by the <landsned.com> domain name. Therefore, the Panel determines that Respondent is not commonly known by the disputed domain name based on the evidence in the record pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent’s <landsned.com> domain name resolves to a website containing third-party hyperlinks. Some of these hyperlinks resolve to third-parties that compete with Complainant’s catalog, in store, and online business. Complainant alleges that Respondent profits from the aforementioned hyperlinks through the receipt of click-through fees. The Panel finds that Respondent’s use of the confusingly similar <landsned.com> domain name is not a bona fide offering of good or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).”).
In addition, Respondent’s use of the <landsned.com>
domain name, a common misspelling of Complainant’s LANDS’ END mark, constitutes
typosquatting. The Panel finds that
Respondent’s use of a disputed domain name, that is a common misspelling of the
LANDS’ END mark, to redirect Internet users seeking Complainant, is further
evidence that Respondent fails to establish rights or legitimate interests in
the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel holds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the <landsned.com> domain name to resolve to a website featuring hyperlinks to Complainant’s competitors. Internet users interested in purchasing luggage, home goods, clothing, outerwear apparel, footwear, and accessories from Complainant may instead purchase the same products from one of Complainant’s competitors due to Respondent’s use of the confusingly similar disputed domain name. The Panel finds Respondent’s use of the <landsned.com> domain name disrupts Complainant’s business and constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant contends, and the Panel assumes, that the
aforementioned hyperlinks are pay-per-click links that Respondent receives
click-through fees from. Internet users
may become confused as to Complainant’s affiliation with and sponsorship of the
disputed domain name and resolving website.
Respondent is attempting to profit from this confusion which is created
by Respondent’s use of the confusingly similar <landsned.com>
domain name. The Panel determines that
Respondent’s use of the disputed domain name constitutes bad faith registration
and use under Policy ¶ 4(b)(iv). See
Furthermore, Respondent has engaged in typosquatting through its use of the <landsned.com> domain name, which is a common misspelling of Complainant’s LANDS’ END mark. Therefore, the Panel finds Respondent’s engagement in the practice of typosquatting additionally constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
The Panel finds 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 <landsned.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: May 28, 2010
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