Lord & Taylor IP LLC v. lidy Man
Claim Number: FA2210002016303
Complainant is Lord & Taylor IP LLC (“Complainant”), represented by Renee Reuter, Missouri. Respondent is lidy Man (“Respondent”), SG.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lorddandtaylor.com>, (‘the Domain Name’) registered with Net-Chinese Co., Ltd..
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on October 17, 2022; Forum received payment on October 17, 2022. The Complaint was submitted in both Chinese and English.
On October 18, 2022, Net-Chinese Co., Ltd. confirmed by e-mail to Forum that the <lorddandtaylor.com> Domain Name is registered with Net-Chinese Co., Ltd. and that Respondent is the current registrant of the name. Net-Chinese Co., Ltd. has verified that Respondent is bound by the Net-Chinese Co., Ltd. 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 October 25, 2022, Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of November 14, 2022 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@lorddandtaylor.com. Also on October 25, 2022, the Chinese language 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 17, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
Preliminary Issue: Language of the Proceedings
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark LORD & TAYLOR registered, inter alia, in USA for retail services with first use recorded as 1926. It owns lordandtaylor.com.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark merely adding an extra letter ‘d’, replacing the ampersand with the word ‘and’ and adding the gTLD .com none of which prevents said confusing similarity.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been pointed to a Chinese language commercial site with a log in screen and links to third party web sites so there is no bona fide offering of goods or services or legitimate noncommercial or fair use, but registration in bad faith. Typosquatting is an indication of lack of rights and legitimate interests and is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark LORD & TAYLOR registered, inter alia, in USA for retail services with first use recorded as 1926.
The Domain Name registered in 2022 points to a Chinese language site with links to third party web sites and a log in page.
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”).
The Domain Name consists of a misspelled version of the Complainant's LORD & TAYLOR mark (which is registered in USA for retail services with first use recorded as 1926) and the gTLD .com.
The Panel agrees that misspellings such as the addition of a letter ‘d’ does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy. See Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug 3, 2015)(finding that twitcch.tv is confusingly similar to the TWITCH TV trade mark because the domain name consisted of a common misspelling of the mark by merely adding the letter ‘c’). Not does the substitution of an ampersand with the word ‘and’ See Villeroy & Boch AGVi v. Whois Data Shield/Hong Kong Names LLC, WIPO Case No. D2008-1300, where the ampersand symbol was replaced with the word “and” in the domain name <villeroyandboch.com>, but did not affect the finding of confusingly similar to the trademark VILLEROY & BOCH.
The gTLD .com does not serve to distinguish the Domain Name from the 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 holds that the Domain Name is confusingly similar for the purpose of the Policy to the mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of a sign confusingly similar to its mark. There is no evidence to suggest the Respondent is 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 use of the Domain Name is commercial and so cannot be legitimate noncommercial fair use.
The Respondent has used the site attached to the Domain Name to link to a third party commercial site and log in. The Respondent’s conduct is confusing and did not make it clear that there was no commercial connection with the Complainant. See Seiko Kabushiki Kaisha v. CS info Tech, FA 198795 (Forum Dec. 6, 2003)(Diverting customers who are looking for products related to a particular trade mark to an unrelated website is not bona fide offering of goods or services or a legitimate noncommercial fair use).
The Domain Name also appears to be a typosquatting registration differing from the Complainant’s url by one letter, an extra letter ‘d’. Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015).
The Respondent has not answered this Complaint or put forward any evidence to counteract the prima facie case out forward by the Complainant as set out herein.
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 Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. 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) Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
In the opinion of the panelist the use made of the Domain Name in relation to a third party commercial site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant because of the combination of ‘Lord’ and ‘Taylor’. The combination of these two elements makes it more likely than not that the Respondent was aware of the Complainant and its business and rights. 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 trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. (See Am. Online Inc v. Tencent Commc’ns Corp., FA 93668 (Forum Mar 1, 2000.)(finding bad faith where a respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a site sponsored by the Respondent.)
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lorddandtaylor.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 20, 2022
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