DECISION

 

LF, LLC v. christopher watts

Claim Number: FA2309002060826

PARTIES

Complainant is LF, LLC ("Complainant"), represented by Jeanette Eriksson of FairWinds Partners LLC, District of Columbia, USA. Respondent is christopher watts ("Respondent"), United Kingdom.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <reliabiltdoors.net>, registered with NameCheap, Inc..

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of their knowledge has no known conflict in serving as Panelist in this proceeding.

 

James Bridgeman SC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 7, 2023; Forum received payment on September 8, 2023.

 

On September 8, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <reliabiltdoors.net> 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 ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

 

On September 11, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 2, 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@reliabiltdoors.net. Also on September 11, 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 October 3, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant claims rights in the RELIABILT trademark established by its ownership of the registered trademarks described below which predate the registration of the disputed domain name; and its extensive use of the mark in its business in marketing and sale of doors and windows, and other home improvement products exclusively at Lowe's retail home improvement supply stores.

 

Since the inception of the mark, Complainant has continually used it in commerce, both online and in physical stores. Complainant serves customers through more than 2200 stores in the United States and Canada, had net sales of over USD 96 Billion for fiscal year 2021, and employs approximately 300,000 associates. Complainant is a wholly-owned subsidiary of Lowe's Companies, Inc. which is traded on the New York Stock Exchange under the ticker symbol LOW.

 

Online, Complainant generates significant sales revenue as a result of the advertising and marketing it conducts on its <www.Lowes.com> website.

 

Complainant submits that the disputed domain name is confusingly similar to Complainant's registered RELIABILT mark. It has been held, in decisions too numerous to mention, that the addition of generic or other words to a trademark, whether as part of a second or top-level domain, creates a confusingly similar domain name. See, e.g., LF, LLC v. Srujan Kumar Avula, Forum Claim FA 2111001974096 (Forum December 28, 2021) regarding the domain name <www-lowescomsurvey.com> ("Respondent's <www-lowescomsurvey.com> domain name uses the LOWE'S mark, and adds generic terms, including "www" and "com", along with a hyphen and a gTLD. These changes do not distinguish a disputed domain name from the mark it incorporates").

 

Respondent in the present dispute initially attracts people to its website by using a copy of Complainant's RELIABILT mark and merely adds the highly relevant term "doors", as well as the generic Top Level Domain ("gTLD") extension <.net> thereby making visitors to its website think that they are being linked to one of the Complainants' legitimate sites that promote its products and services.

 

Complainant submits that the addition of the gTLD extension <.net> does nothing to alleviate confusion between the RELIABILT mark and the disputed domain name. See, Reese v. Morgan, Forum Claim FA 917029 (Forum Apr. 5, 2007) (Finding that the mere addition of the generic top-level domain ".com" is insufficient to differentiate a disputed domain name from a mark.)

 

Complainant next alleges that Respondent has no rights or legitimate interest in respect of the disputed domain name arguing upon information and belief, Respondent is not commonly known by the disputed domain name or the name "Reliabilt", nor does Respondent operate a legitimate business or other organization under the RELIABILT mark or the disputed domain name.

 

The Registrar has disclosed that the owner of the disputed domain name is "Christopher Watts".

 

Additionally Complainant argues that Respondent does not own any trademark or service mark rights in the RELIABILT name. See, Dell Inc. v. George Dell and Dell Net Solutions, WIPO Case D2004-0512 (Regarding the domain <dellnetsolutions.com> "there is no evidence that the Respondents' business has been commonly known by that name.").

Next, Complainant alleges that Respondent's actions are not a bona fide offering of goods or services under Policy ¶ 4(c)(i).

 

Complainant alleges that Respondent uses the disputed domain name for a fake blog of the type which has commonly come to be known as a spam blog or a "splog". This is described in the Wikipedia.org entry on the topic as "a blog which the author uses to promote affiliated websites, to increase the search engine rankings of associated sites or to simply sell links/ads." 

 

Complainant argues that copying a well-known trademark for the purpose of diverting traffic away from a complainant's legitimate website through impersonation and passing off with a fake blog, hosting monetized advertisements and harvesting user information has been held not to be a bona fide use of such mark. See LF, LLC v. Kas Is / cas issen, Forum Claim FA 1958712 (Forum Sep. 9, 2021) ("Complainant has made out a prima facie case where "Respondent's websites pretend to be a blog offering information on how to access Complainant's employee portal website, but the real purpose of the websites is to divert traffic from Complainant's legitimate <myloweslife.com> site through passing off and then funnel users to certain pages to derive revenue from the monetized advertisements that promote unrelated third parties" as well as containing a form, in which the user is invited to input their name and email address ostensibly to leave a comment but, in reality, for phishing by Respondent").

 

In support of this assertion, Complainant argues that, as shown in the screen capture exhibited in an annex to the Complaint, Respondent's website to which the disputed domain name resolves contains many links to other locations on the same page, also known as circular links, taking the visitor straight back to the same website. The appearance of being a blog offering information about Complainant is merely a sham pretext by Respondent. The real purpose of Respondent's site is to divert traffic from Complainant's legitimate RELIABILT site through passing off, and then harvest users' information through a "Contact us" and "Leave a Comment" form (this sort of personal information is often used for spam, phishing, and other cyber harm) as well as to financially benefit from the internet traffic through monetized advertisements appearing across the site.

 

Complainant argues that the mere mention of Complainant being the owner of, or official distributer of, the RELIABILT brand, does not indicate a bona fide use or any right or legitimate interest but rather the opposite, as seen in several previous cases under the Policy. See for instance Taboola.com Ltd. v. Tien Dat, Forum Claim FA 2008670 (Forum Sept. 08, 2022) ("The disputed domain name is redirected to Complainant's legitimate webpage. Use of a disputed domain name to redirect users to a legitimate website associated with the mark fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii), Policy ¶ 4(c)(i), or ¶ 4(c)(iii)").

 

Further, a user who clicks for example the "Reliabilt Doors" link that appear on the home page of the website to which the disputed domain name is brought right back to the top of the home page of the website. Such circular, internal linking may be used, by Respondent, to improve its search engine ranking and perceived legitimacy by creating the illusion that its page receives many more clicks than it actually does.

 

Complainant submits that all of the activity described above and shown in exhibited screen captures, clearly indicates that Respondent is misusing the RELIABILT mark.

 

Should Respondent claim that the links, content, images or ads on its site are merely incidental, it is important to keep in mind that this is not a "fan" site or other legitimate informational offering provided out of Respondent's passion for Complainant and its stores. Rather, Respondent is using a confusingly similar domain name for its website to achieve its true objective of diverting traffic from Complainant's own site, financially benefitting from such traffic through hosting monetized advertisements, as well as harvesting users' names and email addresses.

 

Complainant adds that regardless of the website to which the disputed domain name resolves, the name itself is clearly an impersonation of the RELIABILT mark and thus conveys no rights or legitimate interests to Respondent. Dover Downs Gaming & Entertainment, Inc. v. Domains By Proxy, LLC / Harold Carter Jr, Purlin Pal LLC, WIPO Case D2019-0633 (WIPO May 22, 2019) (despite website content critical of complainant, domain name doverdownsnews.com itself held to be an impersonation thereof).

 

Next, Complainant submits that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain, and so its actions do not fall within Policy ¶ 4(c)(iii).

 

Complainant argues that Respondent uses a copy of the RELIABILT mark, combined with a highly relevant descriptive term ("doors"), in the disputed domain name to confuse users into believing that the disputed domain name is owned by, or affiliated with Complainant, when this is not the case.

 

The evidence in this case leads to the only reasonable conclusion that the disputed domain name is derived from Complainant's RELIABILT mark and any other explanation by the Respondent would clearly be a wholly manufactured post-dispute explanation. Rather, Respondent uses the disputed domain name to confuse and misleadingly divert consumers, or to tarnish Complainant's mark.

 

Such use cannot be considered fair and it also does not fit into any accepted category of fair use such as news reporting, commentary, political speech, education, nominative use, etc. Rather, those who see the disputed domain name will immediately perceive it to refer to Complainant. See DD IP Holder LLC v Manpreet Badhwar, 1562029 (Forum Jul 14, 2014) (Respondent's claim that its <Dunkin.menu> domain would be used to promote its basketball classes – i.e., "dunkin" the ball – held not credible and provided it with no rights or legitimate interests in the domain).

 

Complainant next alleges that the disputed domain name was registered and is being used in bad faith, arguing that the Policy clearly explains that bad faith can be found where a respondent, by using a domain name, intentionally attempts to attract, for commercial gain, Internet users to its website or other on-line location, primarily for the purpose of disrupting the business of a competitor, or by creating a likelihood of confusion with a complainant's mark as to source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location. See Policy ¶¶ 4(b)(iii) and (iv).

 

Complainant submits that Respondent was put on actual notice of Complainant's rights in the RELIABILT mark through Complainant's extensive use of the mark which predates the creation date of the disputed domain name.

 

Further, given the widespread reputation of the Complainant's RELIABILT mark for the relevant product offering and the fact that Respondent's website specifically references the mark and corresponding products, it is inconceivable that Respondent was not aware of the mark's existence. See, Las Vegas Sands Corp. v. hu luo / lewansi / theones, Forum Claim FA 2006834 (Forum Sep.13, 2022) ("five of the disputed domain names resolve to websites that mimic Complainant's legitimate website and purport to offer for sale the same products that Complainant offers for sale on its legitimate website. Consumers visiting those resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name.")

 

Further, it is contended that Respondent is seeking to disrupt Complainant's business and obtain commercial gain from its registration and use of the disputed domain name through confusion with Complainant's RELIABILT Mark under Policy ¶ 4(b)(iii) and (iv).

 

The fake blog content and monetized advertisements that appear on Respondent's websites are diverting Complainant's customers away from Complainant's official website.

Further, Respondent is using confusion with Complainant's mark to harvest user information and to promote the goods and services of other companies who are referenced through the monetized ads appearing at the website to which the disputed domain name resolves.

 

Here, Respondent's provision of a "Leave a Reply" form to harvest user information for spam or phishing and its use of monetized advertisements across the website as well we the promotion of third-party businesses evidence its efforts at seeking commercial gain (either through selling or otherwise exploiting user information, advertisements or promoting certain other websites).

 

Whether or not Respondent itself is compensated is irrelevant. Panels established under the Policy have held that there only needs to be commercial gain sought by some party for the use to be commercial. See, Focus Do It All Group v. Athanasios Sermbizis, WIPO Case D2000-0923 ("[I]t is enough that commercial gain is being sought for someone" for a use to be commercial).

 

Respondent as the owner of the disputed domain name, is entirely and solely responsible for the content of its resolving website. See, Disney Enterprises, Inc. v. ll, Forum Claim FA 1336979 (Forum Aug. 31, 2010) (Respondent acted in bad faith, despite its claimed lack of control over the content on its parked, pay-per-click website).

 

Despite the transparency of Respondent's sham, should it claim that its use of the disputed domain name is for a good faith informational blog sites, this still does not provide it with any shelter. The disputed domain name, itself, provides absolutely no indication that its associated website is unaffiliated with Complainant. The disputed domain name has thus been registered and used in bad faith under the well-accepted theory of initial interest confusion. In O2 Worldwide v. Nick Kett, WIPO Case No. D2020-0028 (WIPO Mar. 26, 2020) (Respondent using or intending to use the disputed domain name for the commercial purpose of deriving revenue from advertising links, which activity in turn relies on Internet users visiting the corresponding website. The Panel found it more likely than not that a proportion of visitors would have done so by being confused into expecting to be taken to the Spanish online presence of the Complainant, if only initially, constituting attempted initial interest confusion.)

 

The same holds true here where the public will initially be confused into believing that the disputed domain name originates with or is associated with complainant and expect that this will take them to complainant's own site. This fact alone supports the conclusion that the domain name has been registered and is being used in bad faith.

 

Complainant's representative sent several cease-and-desist letters to the Respondent which are exhibited in an annex to the Complaint, However, no response has been received from the Respondent. Such non-responsiveness has also been held to support a finding of bad faith registration and use.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant carries on business in the marketing and sale of doors and windows, and other home improvement products using the RELIABILT trademark for which it owns the following trademark registrations:

·       United States registered trademark RELIABILT, registration number 1689814, registered on the Principal Register on June 2, 1992 for goods in international class 6;

·       United States registered trademark RELIABILT DOORS & WINDOWS, (illustrated drawing which includes words) registration number 2858151, registered on the Principal Register on June 29, 2004;

·       International trademark RELIABILT, registration number 820858, registered on December 22, 2003 for goods in classes 5 and 16;

·       United States registered trademark RELIABILT registration number 3437580, registered on the Principal Register on May 27, 2008 for goods in international class 6.

 

The disputed domain name <reliabiltdoors.net> was registered on September 12, 2019 and resolves to a website from the disputed domain name containing numerous links to other locations on the same page, also known as circular links, taking the visitor straight back to the disputed domain name, a Leave a Reply" form to harvest user information, and links to third Party websites.

 

There is no information available about the Respondent, who has availed of a privacy facility to conceal his name on the published WhoIs, except for that provided in the Complaint, the Registrar's WhoIs and the information provided by the Registrar in response to the request by the Forum for details of the registration of the disputed domain name in the course of this proceeding.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

Complainant's Rights

Complainant has provided convincing, uncontested evidence that it has rights in the RELIABILT mark on doors and windows and similar goods, which it uses extensively and exclusively in its chain of home ware retail stores.

 

Confusing Similarity

The disputed domain name <reliabiltdoors.net> consists of Complainant's RELIABILT mark in its entirety in combination with the word "doors" and the gTLD extension <.net>.

 

Complainant's RELIABILT mark is the initial, dominant and only distinctive element in the disputed domain name. The addition of the descriptive word "doors" does not add any distinguishing character and its addition to Complainant's mark within the disputed domain name does not prevent a finding of confusing similarity.

 

Similarly, the gTLD extension <.net> does not prevent a finding of confusing similarity as the circumstances of this proceeding, it would be considered to be a necessary technical requirement for a domain name registration.

 

This Panel finds therefore that the disputed domain name is confusingly similar to the RELIABILT mark, and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has made out a prima facie case that Respondent has no rights legitimate interests in the disputed domain name arguing that

·       upon information and belief, Respondent is not commonly known by the disputed domain name or the name "Reliabilt";

·       Respondent does not operate a legitimate business or other organization under the RELIABILT mark or the disputed domain name;

·       the Registrar has disclosed that the owner of the disputed domain name is "Christopher Watts";

·       Respondent does not own any trademark or service mark rights in the RELIABILT name;

·       Respondent's actions are not a bona fide offering of goods or services under Policy ¶ 4(c)(i);

·       Respondent uses the disputed domain name for a fake blog of the type which has commonly come to be known as a spam blog or a "splog", which is described in the <Wikipedia.org> entry on the topic as "a blog which the author uses to promote affiliated websites, to increase the search engine rankings of associated sites or to simply sell links/ads.";

·       Respondent is copying Complainant's well-known trademark for the purpose of diverting traffic away from Complainant's legitimate website through impersonation and passing off with a fake blog, hosting monetized advertisements and harvesting user information which activity has been held not to be a bona fide use of a mark;

·       As shown in the screen capture exhibited in an annex to the Complaint, the website to which the disputed domain name resolves from the disputed domain name contains many links to other locations on the same page, also known as circular links, taking the visitor straight back to the disputed domain name;

·       the appearance of being a blog offering information about Complainant is merely a sham pretext by Respondent and the real purpose of Respondent's site is to divert traffic from Complainant's legitimate RELIABILT site through passing off, and then harvest users' information through a "Contact us" and "Leave a Comment" form;

·       the mere mention of Complainant being the owner of, or official distributer of, the RELIABILT brand, does not indicate a bona fide use or any right or legitimate interest but rather the opposite, as seen in several previous cases under the Policy;

·       furthermore, a user who clicks for example the "Reliabilt Doors" link that appears on the home page of the website to which the disputed domain name is brought right back to the top of the home page of the website;

·       such circular, internal linking may be used, by Respondent, to improve its search engine ranking and perceived legitimacy by creating the illusion that its page receives many more clicks than it actually does;

·       the website to which the disputed domain name resolves is not a "fan" site or other legitimate informational offering provided out of Respondent's passion for Complainant and its stores, but rather, Respondent is using a confusingly similar domain name for its website to achieve its true objective of diverting traffic from Complainant's own site, financially benefitting from such traffic through hosting monetized advertisements, as well as harvesting users' names and email addresses; 

·       regardless of the website to which the disputed domain name resolves, the name itself is clearly an impersonation of the RELIABILT mark and thus conveys no rights or legitimate interests to Respondent;

·       Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain, and so its actions do not fall within Policy ¶4(c)(iii);

·       Respondent uses a copy of the RELIABILT mark, combined with a highly relevant descriptive term ("doors"), in the disputed domain name to confuse users into believing that the disputed domain name is owned by, or affiliated with Complainant, when this is not the case; 

·       Respondent's use of the disputed domain name to resolve to his website, cannot be considered fair and it also does not fit into any accepted category of fair use such as news reporting, commentary, political speech, education, nominative use because those who see the disputed domain name will immediately perceive it to refer to Complainant.

 

It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.

 

Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.

 

Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant has adduced clear and convincing, uncontested evidence that it has trademark and service mark rights in the RELIABILT mark which predate the registration and first use of the disputed domain name on September 12, 2012.

 

Complainant's RELIABILT mark is distinctive, and Complainant has adduced convincing, uncontested evidence that it has an established reputation providing doors and home products.

 

The disputed domain name is a combination of Complainant's distinctive mark and a description of the product that Complainant sells. On the balance of probabilities the disputed domain name is derived from Complainant's mark as alleged.

 

On the balance of probabilities therefore it is improbable that the registrant of the disputed domain name was unaware of Complainant, its mark and its reputation and goodwill when the disputed domain name was chosen and registered.

 

The exhibited screen captures and the explanation given by Complainant show that Respondent is using Complainant's mark to resolve to a website on which users are treated to circular links, and invited to leave personal information. Respondent is creating the impression that the website to which the disputed domain name resolves has an association with Complainant.

 

The unhappy experience that a visitor who is trapped into circular links on Respondent's website must in such circumstances damage the reputation and goodwill of Complainant. Such use of the disputed domain name is sufficient to establish bad faith use for the purposes of the Policy.

 

Of more concern however is that Respondent is using the confusingly similar domain name as the address of a website, with links to third party offerings and thereby damaging Complainant's trade and reputation.

 

The use of a form on Respondent's website to collect information in such circumstances also give rise to serious concern.

 

Furthermore, the website to which the disputed domain name resolves provides no indication that its associated website is unaffiliated with Complainant and use of the disputed domain name in this manner must inevitably create initial interest confusion as alleged.

 

This Panel finds therefore that on the balance of probabilities the disputed domain name was chosen, registered and is being used in bad faith with Complainant's mark in mind to confuse Internet users and take predatory advantage of Complainant's goodwill and reputation by creating a likelihood of confusion with Complainant's mark as to source, sponsorship, affiliation, or endorsement of Respondent's website.

 

As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in Policy paragraph 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <reliabiltdoors.net> domain name be TRANSFERRED from Respondent to Complainant.

 

 

_______________________________________

 

James Bridgeman SC

Panelist

Dated: October 5, 2023