LIGHTINTHEBOX HOLDING CO., LTD. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1810001813459
Complainant is LIGHTINTHEBOX HOLDING CO., LTD. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lightintgebox.com>, <lightinthebix.com>, <lightintheboc.com>, and <loghtinthebox.com> (‘the Domain Names’) registered with Internet Domain Service BS Corp.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 24, 2018; the Forum received payment on October 24, 2018.
On October 25, 2018, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <lightintgebox.com>, <lightinthebix.com>, <lightintheboc.com>, and <loghtinthebox.com> domain names are registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the names. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 19, 2018 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@lightintgebox.com, postmaster@lightinthebix.com, postmaster@lightintheboc.com, postmaster@loghtinthebox.com. Also on October 29, 2018, 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 November 21, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 names be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the mark LIGHT IN THE BOX for a wide variety of goods registered in the USA with first use recorded as 2009.
The Domain Names registered after first use by the Complainant are confusingly similar to the Complainant’s trademarks being typosquatting registrations and in each case simply replacing one of the letters of the Complainant’s mark with another letter.
Respondent is not commonly known by the Domain Names and has not been authorised by the Complainant.
Respondent is using the Domain Names to point to pay per click links or to the Complainant’s own web site in violation of an affiliate agreement between the Complainant and the Respondent which is not a bona fide offering of goods or services or a legitimate noncommercial fair use. In fact this is registration and use in bad faith designed to confuse Internet users and disrupt the Complainant’s business. The existence of the affiliate agreement between the Complainant and the Respondent shows the Respondent is aware of the Complainant and its business. Typosquatting and using a privacy service for a commercial site is evidence of bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark LIGHT IN THE BOX for a wide variety of goods registered in the USA with first use recorded as 2009.
The Domain Names registered after the Complainant’s first use and pointed either to pay per click sites or the Complainant’s own web site are typosquatted registrations.
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 Mgmt., 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.”).
Identical or Confusingly Similar
The Domain Names consists of a misspelling of the Complainant’s LIGHT IN THE BOX mark (used in the USA for a wide variety of retail goods since at least 2009 giving the Complainant common law rights initially and registered thereafter) substituting only one letter in each case. Panels have held that misspelling a mark in a domain name does not prevent confusing similarity. See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002).
The gTLD .com does not serve to distinguish a Domain Name from a Complainant’s mark. 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 holds that the Domain Names are confusingly similar to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact. commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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 Domain Names resolve or redirect to sites with pay per click links or the Complainant’s own site. The use is commercial so cannot be legitimate noncommercial or fair use. There is no indication that there is no authorisation from the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Ashley Furniture Industries Inc v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate noncommercial fair use) and Direct Line Ins. Plc v Low-cost-domain, FA 1337658 (Forum Sept 8, 2010) (pointing to Complainant’s own site is not a bona fide offering of goods or services or a legitimate noncommercial fair use).
Further typosquatting is an indication of a lack of rights or legitimate interest in domain names.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register domain names containing a sign confusingly similar to the Complainant’s mark and use them for third party commercial links or to point to the Complainant’s own web site in what appears on the face of it to be typosquatting registrations. Typosquatting shows knowledge of the Complainant and its business as does an affiliate agreement between the parties.
In the opinion of the panelist the use made of the Domain Names in relation to the site is confusing and disruptive in that visitors to the sites might reasonably believe the Domain Names are connected to or approved by the Complainant as it offers links to third party sites under a sign confusingly similar to the Complainant’s mark or links to the Complainant’s own site. 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 marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant under Policy 4 (b)(iii) and (iv). See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re pay per click links and MySpace Inc v. Gomez, D2007-1231 (WIPO Oct 17, 2007) re pointing to Complainant’s own web site.
Typosquatting itself is also evidence of relevant bad faith registration and use. 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 which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Use of a privacy service for a commercial site can also indicate bad faith.
As such, the Panel holds that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lightintgebox.com>, <lightinthebix.com>, <lightintheboc.com>, and <loghtinthebox.com> domain names be TRANSFERRED from Respondent to Complainant.
Dated: November 23, 2018
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