Lookout, Inc. v Super Privacy LTD c/o Dynadot
Claim Number: FA1909001860711
Complainant is Lookout, Inc. (“Complainant”), represented by Cliff Kuehn of Dergosits & Noah, LLP, California, USA. Respondent is Super Privacy Service LTD c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <liokout.com> (‘the Domain Name’), registered with DYNADOT LLC; Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 5, 2019; the Forum received payment on September 9, 2019.
On September 06, 2019, DYNADOT LLC; Dynadot, LLC confirmed by e-mail to the Forum that the <liokout.com> domain name is registered with DYNADOT LLC; Dynadot, LLC and that Respondent is the current registrant of the name. DYNADOT LLC; Dynadot, LLC has verified that Respondent is bound by the DYNADOT LLC; Dynadot, 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 September 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 7, 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@liokout.com. Also on September 16, 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 October 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
Complainant provides a range of products and services relating to mobile device security and is the owner of the trademark LOOKOUT registered, inter alia, in the USA for software with first use recorded as 2009.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s mark merely replacing one letter, an ‘o’ with an ‘i’, which does not prevent such confusing similarity.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
Respondent is using the Domain Name to redirect Internet users to sponsored listings for commercial gain which is not a bona fide offering of services or a noncommercial legitimate or fair use.
It is registration and use in bad faith using a confusingly similar term to a mark with a reputation to divert Internet consumers for commercial gain and disrupting the Complainant’s business. Typosquatting is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant provides a range of products and services relating to mobile device security and is the owner of the trademark LOOKOUT registered, inter alia, in the USA for software with first use recorded as 2009.
The Domain Name registered in 2019 has been used for pay per click links to mobile security services not connected to the Complainant.
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”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines a misspelling of the Complainant’s LOOKOUT mark (registered, inter alia, in the USA for software with first use recorded as 2009) and the gTLD .com. An ‘i’ has been substituted for an ‘o’ which does not distinguish the Domain Name from the Complainant’s mark. Panels have found that registering a domain name that differs from the Complainant’s trademark by one letter does not distinguish a domain name from that mark. See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”).
The gTLD .com does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name pointed to a site with pay per click links in the same industry area as the Complainant operates. The use is commercial so cannot be legitimate noncommercial or fair use. There is no indication that there is no authorization from the Complainant. The Panel finds this use is confusing. As such, it cannot amount to the bona fide offering of goods and services. See Ashley Furniture Industries Inc. v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate noncommercial fair use).
Typosquatting, the practice of registering a domain name containing typing errors in a complainant’s mark, can indicate a lack of rights and legitimate interests in a domain name under Policy 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy 4(a)(ii).”).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to the Complainant’s mark in what appears on the face of it to be a typosquatting registration.
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
The fact that the typosquatted registration points to pay per click links in the same field as the Complainant indicates knowledge of the Complainant and its business.
In the opinion of the Panelist, the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe the Domain Name is connected to or approved by the Complainant as it offers links to competitors of the Complainant under a sign confusingly similar to the Complainant’s mark. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant under Policy 4 (b)(iii) and (iv). See Health Republic Insurance Company v Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re pay per click links.
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <liokout.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 11, 2019
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