Vinnakota-Chon Inc. dba Lax Wine Spirits & Bistro v. globalfacil / sandra rose
Claim Number: FA2210002018418
Complainant is Vinnakota-Chon Inc. dba Lax Wine Spirits & Bistro (“Complainant”), represented by Leah Rosa Vulić, California, USA. Respondent is globalfacil / sandra rose (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <laxwineandspirit.com>, registered with Name.com, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on October 31, 2022; Forum received payment on October 31, 2022.
On November 01, 2022, Name.com, Inc. confirmed by e-mail to Forum that the <laxwineandspirit.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 November 2, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 22, 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@laxwineandspirit.com. Also on November 2, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.
A. Complainant
Complainant contends as follows:
Complainant, Vinnakota-Chon Inc. d/b/a Lax Wine Spirits & Bistro, is a retail store that sells wines, beers, and spirits, as well as non-alcoholic beverages and snacks. It has physical stores and a website with the domain name <laxwineandspirits.com> that was registered in 2018. Both do business under and prominently display the LAX WINE & SPIRITS mark.
Complainant has rights in the LAX WINE & SPIRITS mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <laxwineandspirit.com> domain name is identical and confusingly similar to Complainant’s LAX WINE & SPIRITS mark because it incorporates the mark in its entirety, merely eliminating the final letter and appending a generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the at-issue domain name, as Respondent is not commonly known by the name and Complainant has never authorized Respondent to use the name. Respondent is seeking to pass itself off as Complainant through a fraudulent site in order to collect consumers’ personal financial information and otherwise take advantage of the confusion to defraud third parties.
Respondent registered and is using the <laxwineandspirit.com> domain name in bad faith by attempting to pass off as, or portray an affiliation with, Complainant, confusing potential consumers with offers of competing goods. Respondent is also engaging in typosquatting and operating the resolving site to collect personal financial information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in its LAX WINE & SPIRITS mark.
Respondent is not authorized to use Complainant’s trademark.
Respondent registered the at-issue domain name after Complainant acquired rights in LAX WINE & SPIRITS.
Respondent uses the domain name to pass itself off as Complainant and thereby defraud third parties.
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 at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration of its LAX WINE & SPIRITS mark is sufficient to establish Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i). See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”).
The at-issue domain name contains a misspelled but readily recognizable version of Complainant’s <laxwineandspirit.com> trademark where the domain name’s impermissible spaces and asterisk have been removed and the mark’s final “s” has likewise been removed. The differences between the <laxwineandspirit.com> domain name and Complainant’s trademark are insufficient to distinguish the domain name from Complainant’s trademark under Policy ¶ 4(a)(i). Therefore, the Panel finds that <laxwineandspirit.com> is confusingly similar to Complainant’s LAX WINE & SPIRITS mark. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”); see also ShipCarsNow, Inc. v Wet Web Design LLC, FA 1601260 (Forum Feb. 26, 2015) (establishing a confusing similarity between the <shipcarnow.com> domain name and the SHIPCARSNOW mark because the domain name simply removes the letter “s”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for <laxwineandspirit.com> indicates that “sandra rose” in business as “globalfacil” is the domain name’s registrant and there is nothing in the record tending to prove that Respondent is otherwise known by the <laxwineandspirit.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the <laxwineandspirit.com> domain name to pose as Complainant so that it may defraud third parties. The at-issue domain name’s website features Complainant’s copyrighted content and mimics Complainant’s genuine website at <laxwineandspirits.com>. Respondent’s copycat website promotes Respondent as a seller of Complainant’s products although Respondent does not actually sell anything. Notably, Respondent has not shipped any of its offered products and showed no intention to do so. Additionally, Respondent intends that confused website visitors erroneously surrender their personal financial data to Respondent. Such use of the confusingly similar domain name is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug.21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”); see also, Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name.
Respondent’s <laxwineandspirit.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First as mentioned above regarding rights and legitimate interests, Respondent poses as Complainant, offers Complainant’s products for sale with no intention to deliver, and desires to fraudulently extract private financial information from <laxwineandspirit.com> website visitors. Such activity disrupts Complainant’s business and capitalizes on the confusion that Respondent created between Complainant’s trademark and Respondent’s domain name. Respondent’s use of <laxwineandspirit.com> thus indicates Respondent’s bad faith under the Policy. See, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also, Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also, Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of internet users through a confusingly similar domain name); see also, Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)).
Moreover, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark (or other identifying text such as an internet address) and then uses the resulting string in a domain name. The registrant hopes that internet users will inadvertently type the malformed string when searching for content related to the domain name’s target trademark and/or upon reading the domain name/text will overlook the misspelling and subsequently believe the domain name is related to, or sponsored by, the target trademark. In the instant case, Respondent removes the final “s” in Complainant’s mark before incorporating the misspelling into the at-issue domain name. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (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, Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <laxwineandspirit.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 30, 2022
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