La-Z-Boy Incorporated v. liu ying jun
Claim Number: FA2302002030953
Complainant is La-Z-Boy Incorporated (“Complainant”), represented by Jessica S. Sachs of Harness, Dickey & Pierce, PLC, US. Respondent is liu ying jun (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lazy-boy-furniture.com>, (‘the Domain Name’) registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
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 Forum electronically on February 7, 2023; Forum received payment on February 7, 2023.
On February 9, 2023, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to Forum that the <lazy-boy-furniture.com> Domain Name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the names. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) 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 February 13, 2023, Forum served the Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of March 6, 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@lazy-boy-furniture.com. Also on February 13, 2023, the Chinese 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 March 13, 2023 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.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant owns the trade mark LA-Z-BOY registered, inter alia, in the USA for furniture with first use recorded as 1929.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark adding a letter ‘y’, the generic word ‘furniture’ and the gTLD .com, and moving a hyphen, none of which is enough to distinguish the Domain Name from the Complainant’s mark.
Respondent is not commonly known by the Domain Name and has not been authorised by the Complainant to use the Complainant’s mark. The Domain Name has been used to point to a site purporting to offer the Complainant’s goods using the Complainant’s mark spelt accurately as a masthead and using material from the Complainant’s web site which is not a bona fide offering of goods or services or a non commercial legitimate and fair use. Whilst the links on the site do not appear to work the Respondent is impersonating the Complainant.
Respondent is intentionally attempting to attract Internet users to the Respondent’s web site by creating a likelihood of confusion as to the source or affiliation of the web site and services on that web site and causing disruption to the Complainant’s business in bad faith with actual knowledge of the Complainant and its rights. The Domain Name is a typosquatting registration which is bad faith per se.
Respondent has been the subject of a number of adverse decisions under the Policy showing a pattern of bad faith activity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark LA-Z-BOY registered, inter alia, in the USA for furniture with first use recorded as 1929.
The Domain Name registered in 2022 has been used to point to a site purporting to offer the Complainant’s goods using the Complainant’s mark spelt accurately as a masthead and using material from the Complainant’s web site to suggest it is an official site of the Complainant. The Respondent has been the subject of several adverse decisions under the Policy.
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”).
Preliminary Issue: Language of Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
The Domain Name consists of a misspelling of the Complainant's LA-Z-BOY mark (adding a letter ‘y’ and moving a hyphen) the generic word ‘furniture’ and the gTLD .com.
The Panel agrees that visually similar misspellings of a complainant’s mark in a domain name do not prevent confusing similarity between that domain name and the complainant's trade mark pursuant to the Policy. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). As such adding a letter ‘y’ does not prevent the Domain Name being confusingly similar to the Complainant’s trade mark under the Policy. Not does the moving of a hyphen. See Mrs. World Pageants, Inc. v. Crown Promotions, FA 94321 (Forum Apr. 24, 2000) (finding that punctuation is not significant in determining the similarity of a domain name and mark).
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘furniture’ does not prevent confusing similarity between the Domain Name and the Complainant's registered trade mark.
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 holds that the Domain Name is confusingly similar to the Complainant’s mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. 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 use is commercial and so cannot be non commercial legitimate fair use.
The web site attached to the Domain Name uses the Complainant's mark spelt accurately as a masthead and confusing wording and other material from the Complainant’s web site to suggest that it is an official site of the Complainant when it is not. The Panel finds this use is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.)
The Domain Name also appears to be a typosquatting registration differing from the Complainant’s mark by one letter, an extra letter ‘y’, and moving one of the hyphens. 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 the Complaint or rebutted the prima facie case evidenced 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 the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers products under the Complainant’s mark used as a masthead and confusing wording on its site with other material taken from the Complainant’s web site giving the impression that the site attached to the Domain Name is official. The use of the Complainant’s mark spelt correctly and the reference to the Complainant and the Complainant’s products on the site also shows that the Respondent has actual knowledge of the Complainant and its business, products 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 or products on it it likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).
Further it seems the Respondent has been the subject of several adverse decisions under the UDRP suggesting a pattern of activity. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
As such, the Panelist believes 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 under para 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lazy-boy-furniture.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 13, 2023
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