LF, LLC v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA1810001810280
Complainant is LF, LLC ("Complainant"), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD ("Respondent"), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lowescareers.com>, registered with Media Elite Holdings Limited.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 3, 2018; the Forum received payment on October 3, 2018.
On October 4, 2018, Media Elite Holdings Limited confirmed by email to the Forum that the <lowescareers.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 October 4, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 24, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@lowescareers.com. Also on October 4, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 October 29, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a leading home improvement retail outlet, with over 2,390 home improvement and hardware stores in the U.S., Canada, and Mexico, and more than 18 million customers each week. Complainant has sold millions of dollars of products under the LOWE’S mark. Complainant owns multiple longstanding U.S. trademark registrations for the mark, both in stylized form and as a standard character mark. The mark has been in use since 1946; Complainant uses it in store signage, product packaging, and advertisements, and on Complainant's website and social media.
The disputed domain name <lowescareers.com> was registered in 2005; Complainant alleges, based upon historical Whois domain registration data, that it was acquired by the current registrant in November 2017. Complainant further asserts that the disputed domain name is being offered for sale through Afternic, an aftermarket domain name marketplace. The domain name is being used to redirect Internet users to various other websites, including a website for one of Complainant's direct competitors, via an advertising network system that presumably generates revenues for Respondent. Complainant states that it has not authorized Respondent to use its mark, and that Respondent has never been known by the disputed domain name or any variation thereof.
Complainant contends on the above grounds that the disputed domain name <lowescareers.com> is confusingly similar to its LOWE'S mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Management, Inc. v. webnet-marketing, inc., FA 95095 (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.").
The disputed domain name <lowescareers.com> incorporates Complainant's registered LOWE'S trademark, omitting the apostrophe and adding the generic term "careers" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., LF, LLC v. Domain Admin, Whois Privacy Corp. / Maddisyn Fernandes et al., D2017-1622 (WIPO Nov. 9, 2017) (finding <lowesemployment.com> confusingly similar to LOWE'S); Home Depot Product Authority, LLC v. Abedellatif Shatila / SHATILA E-COMMERCE, FA 1737594 (Forum July 26, 2017) (finding <homedepotcareers.com> confusingly similar to HOME DEPOT). Accordingly, the Panel considers the disputed domain name to be confusingly similar to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to redirect Internet users to other websites, including that of a direct competitor of Complainant. Such use does not give rise to right or legitimate interests under the Policy. See, e.g., Home Depot Product Authority, LLC v. Abedellatif Shatila / SHATILA E-COMMERCE, supra (finding lack of rights or interests under similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent acquired a domain name that combines Complainant's well-known mark with a generic term, and is using it to profit by redirecting Internet users to other websites, including that of a direct competitor of Complainant. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Home Depot Product Authority, LLC v. Abedellatif Shatila / SHATILA E-COMMERCE, supra (finding bad faith under similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lowescareers.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 31, 2018
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