LZB Properties, Inc. v. Kentech, Inc. a/k/a Domain Master
Claim Number: FA0604000697619
Complainant is LZB Properties, Inc. (“Complainant”), represented by Jessica S. Sachs, of Harness, Dickey & Pierce, P.L.C., 5445 Corporate Drive, Troy, MI 48098. Respondent is Kentech, Inc. a/k/a Domain Master (“Respondent”), 1st Floor Muya House Kenyatta, PO Box 4276-30100, Eldoret, Rift Valley 30100, KE.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <lazyboychairs.org> and <lazyboyrecliner.org>, registered with Domain Contender.
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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 28, 2006; the National Arbitration Forum received a hard copy of the Complaint on May 1, 2006.
On April 28, 2006, Domain Contender confirmed by e-mail to the National Arbitration Forum that the <lazyboychairs.org> and <lazyboyrecliner.org> domain names are registered with Domain Contender and that Respondent is the current registrant of the names. Domain Contender has verified that Respondent is bound by the Domain Contender registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May 4, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 24, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@lazyboychairs.org and postmaster@lazyboyrecliner.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 26, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lazyboychairs.org> and <lazyboyrecliner.org> domain names are confusingly similar to Complainant’s LAZY BOY mark.
2. Respondent does not have any rights or legitimate interests in the <lazyboychairs.org> and <lazyboyrecliner.org> domain names.
3. Respondent registered and used the <lazyboychairs.org> and <lazyboyrecliner.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LZB Properties, Inc., is a wholly-owned subsidiary of La-Z-Boy Incorporated, a world-famous maker of upholstered and wood furniture, including reclining chairs. Complainant was incorporated under the La-Z-Boy name in 1929, and is now a well-known furniture company, doing business in almost every major international country. Complainant holds several trademarks with the United States Patent and Trademark Office (“USPTO”) for the LA-Z-BOY family of marks, including LAZY BOY (Reg. No. 2,876,840 issued August 24, 2003).
Respondent registered the <lazyboychairs.org> domain name on February 3, 2006, and the <lazyboyrecliner.org> domain name on February 4, 2006. Respondent is using the disputed domain names to divert consumers to a website with links to Complainant’s competitors.
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."
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(e), 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 (Nat. Arb. 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.”).
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.
Complainant has established rights in the LAZY BOY mark
through its registration with the USPTO.
See Vivendi Universal Games v. XBNetVentures Inc., FA 198803
(Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations
establish Complainant's rights in the BLIZZARD mark.”); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”).
Respondent’s <lazyboychairs.org> and <lazyboyrecliner.org> domain names are confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i) because they incorporate Complainant’s LAZY BOY mark in its entirety and add the generic terms “chairs” and “recliners.” Because Complainant’s product line includes reclining chairs, the terms have a direct and obvious relationship to Complainant’s business. The addition of generic terms to Complainant’s mark, especially terms that bear an obvious relation to Complainant’s business, do not adequately distinguish Respondent’s domain names from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <lazyboychairs.org> and <lazyboyrecliner.org> domain names. Complainant has the initial burden of proof in asserting that Respondent has no rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent is using the <lazyboychairs.org> and
<lazyboyrecliner.org> domain names, which are confusingly similar
to Complainant’s LAZY BOY mark, to divert consumers to a website with links to
Complainant’s competitors. Such use of
the disputed domain names for commercial gain does not constitute a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a
legitimate noncommercial or fair use of the domain names pursuant to Policy ¶
4(c)(iii). See TM Acquisition Corp.
v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the
respondent’s diversionary use of the complainant’s marks to send Internet users
to a website which displayed a series of links, some of which linked to the
complainant’s competitors, was not a bona fide offering of goods or
services); see also Coryn Group, Inc. v. Media
Insight, FA 198959 (Nat. Arb. Forum Dec.
5, 2003) (finding that the respondent was not using the domain names for a bona
fide offering of goods or services nor a legitimate noncommercial or fair
use because the respondent used the names to divert Internet users to a website
that offered services that competed with those offered by the complainant under
its marks).
Respondent has not answered the Complaint with any
information indicating that it is commonly known by the disputed domain
names. Complainant has not given
Respondent its consent to use its mark in Respondent’s domain names. There is no information in the WHOIS
database implying that Respondent is commonly known by the <lazyboychairs.org>
or <lazyboyrecliner.org> domain name. Therefore, Respondent has not established rights or legitimate
interests in the <lazyboychairs.org> and <lazyboyrecliner.org>
domain names pursuant to Policy ¶ 4(c)(ii).
See Gallup, Inc. v. Amish Country
Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the
respondent does not have rights in a domain name when the respondent is not
known by the mark); see also Wells Fargo & Co.
v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17,
2003) (“Given the WHOIS contact information for the disputed domain [name], one
can infer that Respondent, Onlyne Corporate Services11, is not commonly known
by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <lazyboychairs.org> and <lazyboyrecliner.org> domain names, which are confusingly similar to Complainant’s LAZY BOY mark, to operate a website containing links to Complainant’s competitors. The Panel infers that Respondent receives click-through fees for misleading consumers to these websites. Therefore, Respondent is taking advantage of the likelihood of confusion between Respondent’s domain names and Complainant’s mark and capitalizing on the goodwill of the mark. The Panel finds that such use constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
Respondent’s domain names incorporate Complainant’s mark in its entirety, and Respondent’s website contains several links to websites offering products in competition with Complainant. Respondent’s use of Complainant’s mark to divert Internet users to Complainant’s competitors amounts to disruption of Complainant’s business pursuant to Policy ¶ 4(b)(iii). See Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lazyboychairs.org> and <lazyboyrecliner.org> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: June 8, 2006
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