Lord & Taylor IP LLC v. lianxin zhou
Claim Number: FA2212002025596
Complainant is Lord & Taylor IP LLC (“Complainant”), represented by Renee Reuter, US. Respondent is lianxin zhou (“Respondent”), HK.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is/are <lordandtaylro.com>, registered with GoDaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to Forum electronically on December 28, 2022; Forum received payment on December 28, 2022.
On December 29, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <lordandtaylro.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 January 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 23, 2023 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@lordandtaylro.com. Also on January 3, 2023, 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 January 27, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 claims rights in the LORD & TAYLOR mark through registration with the United States Patent and Trademark Office (“USPTO”) and other governmental organizations (e.g., Reg. No. 1,960,413, registered March 5, 1996). The disputed domain name <lordandtaylro.com> is confusingly similar to Complainant’s LORD & TAYLOR mark because it incorporates a version of Complainant’s mark that differs only through transposition of two letters, changing the ampersand to the word “and” and the addition of the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <lordandtaylro.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the LORD & TAYLOR mark. Additionally, Respondent fails to use the disputed domain name in connection with any bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain to typosquat and trick Internet users into downloading malware.
Respondent registered and uses the <lordandtaylro.com> domain in bad faith. Respondent uses the disputed domain to trick Internet users into downloading malware. Also, Respondent’s registration and use of the disputed domain name constitutes typosquatting. Furthermore, Respondent had actual knowledge of Complainant’s rights in the LORD & TAYLOR mark prior to registration of the disputed domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the LORD & TAYLOR mark through registration with the USPTO and other governmental organizations (e.g., Reg. No. 1,960,413, registered March 5, 1996). The disputed domain name <lordandtaylro.com> is confusingly similar to Complainant’s LORD & TAYLOR mark.
Respondent registered the <lordandtaylro.com> domain name on June 8, 2017.
Respondent lacks rights or legitimate interests in the <lordandtaylro.com> domain name. Respondent uses the disputed domain to typosquat and trick Internet users into downloading malware.
Respondent registered and uses the <lordandtaylro.com> domain in bad faith.
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”).
Respondent’s <lordandtaylro.com> domain name is confusingly similar to Complainant’s LORD & TAYLOR mark because it incorporates Complainant’s mark differing only in that the letters “r” and “o” have been transposed and the ampersand has been replaced by the word “and” before also adding the “.com” gTLD.
Respondent lacks rights or legitimate interest in the <lordandtaylro.com> domain name as Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the LORD & TAYLOR mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed 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 associated with the disputed domain does not indicate that Respondent is known by the disputed domain name. Therefore, Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent does not use the <lordandtaylro.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant to trick Internet users into downloading malware. Using a disputed domain name to pass off as a Complainant or to trick users into installing malware is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii).”); see also Watts Water Technologies Inc. v. wo ci fa men zhi zao (kun shan) you xian gong si, FA 1740269 (Forum Aug. 11, 2017) (“Respondent has used the domain name to resolve to a website that mimics the color scheme associated with Complainant’s WATTS brand and displays counterfeit versions of Complainant’s products for purchase in an attempt to pass itself off as Complainant… [therefore], the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.”).
Respondent also lacks rights or legitimate interests in the <lordandtaylro.com> domain name because Respondent engages in typosquatting. 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).”).
Respondent registered and uses the <lordandtaylro.com> domain name in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website to trick Internet users into downloading malware. A respondent‘s use of a disputed domain name to pass themselves off as a complainant is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 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.”) Furthermore, where a disputed domain is used to trick Internet users into downloading malware, previous panels have found evidence of bad faith. See WordPress Foundation v. Above.com Domain Privacy, FA 1641647 (Forum Nov. 9, 2015) .
Additionally, Respondent has registered and uses the <lordandtaylro.com> domain in bad faith because it engages in typosquatting which is evidence of bad faith under Policy ¶ 4(a)(iii). See LifeLock, Inc. v. Adam Viener / ThunkTunk LLC, FA1409001579875 (Forum Oct. 28, 2014) (“As the Panel has noted above, at the conclusion of its findings under the first Policy element under Policy ¶ 4(a)(i), the disputed domain name <lifelocl.com> differs from the LIFELOCK mark only by substituting the letter ‘L’ for the letter ‘K’ in the LOCK-portion of Complainant’s registered mark. The Panel finds this behavior amounts to typosquatting, and as such the Panel finds this to be evidence of bad faith pursuant to Policy ¶ 4(a)(iii).”). Here, the Respondent transposed the letters “r” and “o” in Complainant’s LORD & TAYLOR mark in its <lordandtaylro.com> domain name.
Respondent had actual knowledge of Complainant’s rights in the LORD & TAYLOR mark at the time of registering the <lordandtaylro.com> domain name. Therefore, Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lordandtaylro.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 7, 2023
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