Lenovo (Beijing) Limited Corporation China v. Above.com Domain Privacy
Claim Number: FA1411001590368
Complainant is Lenovo (Beijing) Limited Corporation China (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lenlovo.com>, registered with ABOVE.COM PTY LTD.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 17, 2014; the National Arbitration Forum received payment on November 17, 2014.
On December 15, 2014, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <lenlovo.com> domain name is registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the name. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY LTD. 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 December 16, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 5, 2015 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@lenlovo.com. Also on December 16, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 8, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. 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" 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 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 name be transferred from Respondent to Complainant.
Complainant
Complainant uses the LENOVO mark to identify its computers and related equipment and software. Complainant has registered the LENOVO mark with numerous trademark authorities, including the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,149,377, registered Sept. 26, 2006). The <lenlovo.com> domain name is confusingly similar to the LENOVO mark as the domain name merely interjects a single letter “l” into the mark, and affixes the gTLD “.com.”
Respondent has no rights or legitimate interests in the <lenlovo.com> domain name. Respondent is not authorized to use the mark, and there is no indication that Respondent is commonly known by the “lenlovo” name. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a website populated by hyperlinks, some of which reference Complainant and its competitors in the computing field.
Respondent’s conduct reveals bad faith registration and use. Respondent’s bad faith is demonstrated by its use of the <lenlovo.com> domain name to promote links in competition with Complainant. Such use disrupts Complainant’s business. Respondent likely generates click-through profit through the likelihood of user confusion as users will mistakenly associate Complainant with the confusingly similar domain name. Respondent’s registration of the <lenlovo.com> domain name, which differs from the LENOVO mark only by a single letter, is indicative of typosquatting. Typosquatting has been deemed demonstrative of Policy ¶ 4(a)(iii) bad faith.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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(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.”).
Complainant uses the LENOVO mark to identify its computers and related equipment and software. Complainant asserts that it has registered the LENOVO mark with numerous trademark authorities, including the USPTO (Reg. No. 3,149,377, registered Sept. 26, 2006). The Panel finds that Complainant’s trademark holding with the USPTO is sufficient to establish Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i). See Homer TLC, Inc. v. Song Bin, FA 1505218 (Nat. Arb. Forum July 30, 2013) (“Complainant’s USPTO registration sufficiently establishes its rights in the HOME DEPOT mark under Policy ¶4(a)(i), despite the fact Respondent resides outside of the United States.”).
Complainant contends the <lenlovo.com> domain name is confusingly similar to the LENOVO mark. Complainant states that the domain name merely interjects a single letter “l” into the mark, and affixes the gTLD “.com.” Complainant argues past panels have held that the addition of a gTLD is irrelevant to the confusing similarity analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The only other alteration to the LENOVO mark is the addition of the letter “l.” Past panels have concluded that the interjection of a single letter into an otherwise incorporated mark does not defeat confusing similarity pursuant to Policy ¶ 4(a)(i). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the addition of the letter “c” to the complainant’s SAFLOK mark does not distinguish the <saflock.com> domain name from the mark under Policy ¶ 4(a)(i)). Accordingly, the Panel finds that the <lenlovo.com> domain name is confusingly similar to the LENOVO mark under Policy ¶ 4(a)(i).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant states that Respondent is not authorized to use the LENOVO mark, and claims that there is no indication that Respondent is commonly known by the “lenlovo” name. The WHOIS record associated with the domain name lists “Above.com Domain Privacy” as registrant. The Panel agrees that the available evidence provides no basis to find Respondent is commonly known by the disputed domain name as detailed in Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant argues that Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Rather, Complainant asserts the disputed domain name resolves to a website populated by hyperlinks, some of which reference Complainant and its competitors in the computing field. The content on the resolving page includes links such as “Lenovo Thinkpad,” “Windows 7 Drivers,” and “Windows 8 I5”. The Panel agrees that such links both relate to and compete with Complainant, and concludes that Respondent has made no Policy ¶ 4(c)(i) bona fide offering of goods or services, or any Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the disputed domain name. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Complainant has proven this element.
Complainant argues that Respondent’s bad faith is demonstrated by its use of the <lenlovo.com> domain name to promote links in competition with Complainant. The disputed domain name promotes computer related links such as “Windows 7 Drivers,” and “Windows 8 I5,” which relate to goods and services in competition with Complainant. Past panels have determined that the use of a confusingly similar domain name to feature links in competition with the complainant constitutes bad faith under Policy ¶ 4(b)(iii) as such use disrupts the complainant’s business. See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)). The Panel finds Respondent’s use of the domain name to display links in competition with Complainant is evidence of Policy ¶ 4(b)(iii) bad faith.
Complainant argues that Respondent likely generates click-through profit through the likelihood of user confusion, as users will mistakenly believe the confusingly similar domain name is associated with Complainant. Past panels have found bad faith pursuant to Policy ¶ 4(b)(iv) where the respondent was using the disputed domain name to feature links relating to complainant and/or other parties in its field of operation, and likely receiving referral fees or other advertising revenue in the process. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). Respondent is promoting click-through links at the resolving page, and the Panel finds this is evidence of bad faith use and registration pursuant to Policy ¶ 4(b)(iv).
Complainant argues that Respondent’s registration of the <lenlovo.com> domain name, which differs from the LENOVO mark only by a single letter, is indicative of typosquatting. Past panels have concluded that typosquatting is demonstrative of Policy ¶ 4(a)(iii) bad faith. See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”). The Panel agrees that the <lenlovo.com> domain name constitutes a typosquatted version of the LENOVO mark, and the Panel finds this is evidence of bad faith under Policy ¶ 4(a)(iii).
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <lenlovo.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: January 9, 2015
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