LF, LLC v. dawda DADAD
Claim Number: FA2111001972897
Complainant is LF, LLC (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, District of Columbia, USA. Respondent is dawda DADAD (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lowescompaniescanada.com>, registered with GoDaddy.com, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 11, 2021; the Forum received payment on November 11, 2021.
On November 12, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lowescompaniescanada.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 6, 2021 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@lowescompaniescanada.com. Also on November 15, 2021, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On December 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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
Complainant contends as follows:
Complainant has rights in the LOWE’S mark through its registrations with various trademark agencies (e.g. United States Patent and Trademark Office (“USPTO”) and Canadian Intellectual Property Office (“CIPO”).
Respondent’s <lowescompaniescanada.com> domain name is identical or confusingly similar to Complainant’s LOWE’S trademark as it incorporates the mark in its entirety, removes the apostrophe, and adds the words “companies” and “Canada”, along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <lowescompaniescanada.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its LOWE’S mark in the at-issue domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passes itself off as Complainant in emails while inactively holding the at-issue domain name.
Respondent registered and uses the <lowescompaniescanada.com> domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by passing off as Complainant in emails. Respondent uses the sham email to perpetrate fraud. Respondent registered the at-issue domain name with actual knowledge of Complainant’s rights in the LOWE’S mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in LOWE’S.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the LOWE’S trademark.
Respondent uses the at-issue domain name to facilitate fraud.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant registered the LOWE’S mark with multiple national trademark registrars worldwide including the USPTO and CIPO; any of such registrations is sufficient to show Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Respondent’s <lowescompaniescanada.com> domain name consists of Complainant’s LOWE’S trademark less its domain name impermissible apostrophe, followed by the generic term “companies” and geographic term “Canada,” with all followed by the top-level domain name “.com.” Under the Policy, the differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish the domain name from the LOWE’S mark. Therefore, the Panel concludes that Respondent’s <lowescompaniescanada.com> domain name is confusingly similar to Complainant’s LOWE’S trademark. See Victoria’s Secret v. Plum Promotions, FA 96503 (Forum Feb. 27, 2001) (“The mere addition of the generic term “tv” does not reduce the likelihood of confusion under Policy 4(a)(i).”); see also Cargill, Incorporated v. Sales Office / Cargill Brasil, FA 1737212 (Forum July 21, 2017) (finding the addition of the geographic term “Brasil” does not avoid confusing similarity pursuant to Policy ¶ 4(a)(i).); see additionally SPTC, Inc. and Sotheby’s v. Kathleen Kim, FA 1734152 (Forum July 14, 2017) (“Respondent’s <sotheebys.com> domain name is identical or confusingly similar to Complainant’s mark because it merely appends the gTLD “.com” to a misspelled version of Complainant’s SOTHEBY’S mark, less the apostrophe.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
The WHOIS information for <lowescompaniescanada.com> shows that “dawda DADAD” is the domain name’s registrant. There is nothing in the record before the Panel that indicates that Respondent is otherwise known by the <lowescompaniescanada.com> domain name or by LOWE’S. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the at-issue domain to perpetrate an email based fraud while failing to address any online content. Respondent’s use of the domain name in this manner is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <lowescompaniescanada.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent used the at-issue domain name to pose as Complainant via email so that it might trick the Dun & Bradstreet company into updating Complainant’s Canadian listing to reflect a phone number that belongs to Respondent. To wit, Respondent sent an email to the Dun & Bradstreet company from the address support @ lowescompaniescanada.com that stated “Please update the phone number of organization as +1 (514) 400 7450 for our organization Lowe’s Companies Canada, ULD whose DUNS number is 243208035” signed “Bart”. Fortunately, Respondent’s scam was exposed and the requested phony change order was ignored. However, it is nevertheless clear that Respondent intended to exploit the bogus phone number change to facilitate fraud directed at Complainant and/or third parties who incorrectly believed they were dealing with Complainant when actually communicating with Respondent. Respondent’s use of the domain name to steal Complainant’s identity is disruptive to Complainant’s business and demonstrates Respondent’s bad faith registration and use of the <lowescompaniescanada.com> domain name. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”).
Additionally, Respondent registered its <lowescompaniescanada.com> domain name knowing that Complainant had trademark rights in LOWE’S. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of its confusingly similar domain name to serve as an email address in furtherance of fraud. Respondent’s prior knowledge of Complainant's trademark further demonstrates that Respondent registered and used its <lowescompaniescanada.com> domain name in bad faith pursuant to 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").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lowescompaniescanada.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 14, 2021
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