For Love and Lemons LLC v. Carlos Parson
Claim Number: FA2304002040985
Complainant is For Love and Lemons LLC (“Complainant”), represented by Scott M. Sisun of Sisun Law, New York, USA. Respondent is Carlos Parson (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <forloveandlemons.us>, registered with NameCheap, Inc..
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on April 20, 2023; Forum received payment on April 20, 2023.
On April 21, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <forloveandlemons.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On April 21, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 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@forloveandlemons.us. Also on April 21, 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 May 16, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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
1. Respondent’s <forloveandlemons.us> domain name is confusingly similar to Complainant’s FOR LOVE & LEMONS mark.
2. Respondent does not have any rights or legitimate interests in the <forloveandlemons.us> domain name.
3. Respondent registered and uses the <forloveandlemons.us> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, For Love and Lemons LLC, offers clothing, apparel, accessories, jewelry, bags, and related items. Complainant holds a registration for the FOR LOVE & LEMONS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,186,612, registered on August 7, 2012).
Respondent registered the <forloveandlemons.us> domain name on February 1, 2023, and uses it to compete with 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that Complainant has rights in the FOR LOVE & LEMONS mark through its registration with the USPTO. See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).
Respondent’s <forloveandlemons.us> domain name uses the FOR LOVE & LEMONS mark and simply switches ampersand to “and”, and adds the ccTLD “.us.” These changes are insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (finding respondent’s <russellandbromley.com> domain name identical to complainant’s RUSSEL & BROMLEY mark, because “[t]he ampersand is a prohibited character in a domain name so there is no difference between the ampersand (in the mark) and the word ‘and’ (in the domain name)”); see also Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”). Therefore, the Panel find s that Respondent’s <forloveandlemons.us> domain name is confusingly similar to Complainant’s FOR LOVE & LEMONS mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant asserts that Respondent has no rights or legitimate interests in the <forloveandlemons.us> domain name as it is not commonly known by the domain name. Complainant has not authorized or licensed Respondent to use its FOR LOVE & LEMONS mark. The WHOIS information identifies Respondent as “Carlos Parson.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(iii). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”)
Complainant contends that Respondent is not using the <forloveandlemons.us> domain name for a bona fide offering of goods or services or a noncommercial or fair use by using it to compete with Complainant. Under Policy ¶¶ 4(c)(ii) and (iv), passing off as a complainant while offering competing products is not a bona fide offering of goods or services or a noncommercial or fair use. See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”) Complainant provides screenshots of the website at <forloveandlemons.us>, showing that Respondent offers products in competition with Complainant. The Panel finds that this is not a bona fide offering of goods or services or a noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(ii) or (iv).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <forloveandlemons.us> domain name in bad faith to divert users for its commercial gain. Under Policy ¶ 4(b)(iv), using a disputed domain name to attract users to a respondent’s website for its own commercial gain evinces bad faith registration and use. See AOL LLC v. AIM Profiles, FA 964479 (Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iv).
Complainant asserts that Respondent registered the <forloveandlemons.us> domain name with knowledge of Complainant’s rights in the FOR LOVE & LEMONS mark, given Complainant’s continuous use of the mark and that Respondent purports to offer products identical to Complainant’s. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <forloveandlemons.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 17, 2023
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