Walker Edison Furniture Company LLC v. yun wu
Claim Number: FA2301002027643
Complainant is Walker Edison Furniture Company LLC (ďComplainantĒ), represented by David P. Johnson, USA.† Respondent is yun wu (ďRespondentĒ), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <walkeredisons.com>, (Ďthe Domain Nameí) registered with Name.com, 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on January 16, 2023; Forum received payment on January 16, 2023.
On January 16, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <walkeredisons.com> Domain Name is registered with Name.com, Inc. and that Respondent is the current registrant of the name.† Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANNís Uniform Domain Name Dispute Resolution Policy (the ďPolicyĒ).
On January 17, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondentís registration as technical, administrative, and billing contacts, and to email@example.com.† Also on January 17, 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 Respondentís registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On February 10, 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.
The Complainant owns the trade mark WALKER EDISON in both word and logo form registered, inter alia, in the USA for furniture with first use recorded as 2006.
The Domain Name registered in 2022 is confusingly similar to the Complainantís trade mark containing it in its entirety and merely adding the letter Ďsí and the gTLD .com which do not prevent said confusing similarity between the Domain Name and the Complainantís mark.
Respondent is not commonly known by the Domain Name and is not authorised by the Complainant.
The web site connected with the Domain Name purports to sell the Complainantís products using the Complainantís trade mark in its logo form as a masthead mimicking the Complainantís official site having copied material from that site without permission. This is registration and use in opportunistic bad faith impersonating the Complainant. The use of the Complainantís logo shows the Respondent had actual knowledge of the Complainant, its rights, business and services.
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark WALKER EDISON in both word and logo form registered, inter alia, in the USA for furniture with first use recorded as 2006. It owns walkeredison.com.
The Domain Name registered in 2022 has been used for a site purporting to be an official site of the Complainant using the Complainantís logo as a masthead and copying and using material from the Complainantís site without permission.
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) (ďBecause Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the ComplaintĒ).
The Domain Name in this Complaint combines the Complainantís WALKER EDISON mark (registered, inter alia, in the USA for furniture since at least 2006) with a single letter Ďsí and the gTLD .com which do not prevent confusing similarity between the Domain Name and the Complainantís mark per Policy ∂ 4(a)(i). See ModCloth, Inc. v. James McAvoy, FA 1629102 (Forum Aug. 16, 2015) (ďThe Panel finds that the disputed domain name is confusingly similar to Complainantís mark because it differs from Complainantís mark by merely adding the letter ĎLí . . . Ē) 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 finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
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 logo as a masthead and material copied from the Complainantís 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.)
Also the Domain Name appears to be a typosquatting registration differing by only one letter from the URL of the Complainant at walkeredison.com. Typosquatting is an indication of a lack of rights or legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (ďUsers might mistakenly reach Respondentís resolving website by misspelling Complainantís mark. Taking advantage of Internet usersí typographical errors, known as typosquatting, demonstrates a respondentís lack of rights or legitimate interests under Policy ∂ 4(a)(ii).Ē).
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 and disruption of the Complainantís business. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainantís mark and be taken to the Respondentís site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (ďRespondentís domain name is a simple and popular variation of a trademark commonly used by typosquatters ÖSuch 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], Respondentís actions evidence bad faith registration of the disputed domain name.Ē).
Further, in the opinion of the panelist the use made of the Domain Name in relation to the Respondentís 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 Complainantís mark and logo used as a masthead with other material copied from the Complainantís web site to give the impression that the site attached to the Domain Name is official.† The use of the Complainantís logo and the Complainantís material on the Respondentís 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 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).
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)(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 <walkeredisons.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated:† February 10, 2023
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